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THE LEGAL PLEA


THE DARTMOUTH COLLEGE CASE

BY DANIEL WEBSTER

The case before the court is not of ordinary importance, nor of
everyday occurrence. It affects not this college only, but every
college, and all the literary institutions of the country. They have
flourished hitherto, and have become in a high degree respectable and
useful to the community. They have all a common principle of existence,
the inviolability of their charters. It will be a dangerous, a most
dangerous experiment to hold these institutions subject to the rise and
fall of popular parties, and the fluctuations of political opinions. If
the franchise may be at any time taken away, or impaired, the property
also may be taken away, or its use perverted. Benefactors will have no
certainty of effecting the object of their bounty; and learned men will
be deterred from devoting themselves to the service of such
institutions, from the precarious title of their offices. Colleges and
halls will be deserted by all better spirits, and become a theater for
the contentions of politics. Party and faction will be cherished in the
places consecrated to piety and learning.

When the court in North Carolina declared the law of the State, which
repealed a grant to its university, unconstitutional and void, the
legislature had the candor and the wisdom to repeal the law. This
example, so honorable to the State which exhibited it, is most fit to
be followed on this occasion. And there is good reason to hope that a
State which has hitherto been so much distinguished for temperate
counsels, cautious legislation, and regard to law, will not fail to
adopt a course which will accord with her highest and best interests,
and in no small degree elevate her reputation.

It was for many and obvious reasons most anxiously desired that the
question of the power of the legislature over this charter should have
been finally decided in the State court. An earnest hope was
entertained that the judges of the court might have reviewed the case
in a light favorable to the rights of the trustees. That hope has
failed. It is here that those rights are now to be maintained, or they
are prostrated forever.

This, sir, is my case. It is the case, not merely of that humble
institution, it is the case of every college in the land. It is more.
It is the case of every eleemosynary institution throughout our
country--of all those great charities formed by the piety of our
ancestors, to alleviate human misery, and scatter blessings along the
pathway of life. It is more! It is, in some sense, the case of every
man among us who has property, of which he may be stripped, for the
question is simply this: Shall our State legislatures be allowed to
take that which is not their own; to turn it from its original use, and
to apply it to such ends or purposes as they in their discretion shall
see fit?

Sir, you may destroy this little institution; it is weak; it is in your
hands! I know it is one of the lesser lights in the literary horizon of
our country. You may put it out. But, if you do so, you must carry
through your work! You must extinguish, one after another, all those
greater lights of science, which, for more than a century, have thrown
their radiance over our land!

It is, sir, as I have said, a small college, and yet there are those
who love it.

Sir, I know not how others may feel, but for myself, when I see my Alma
Mater surrounded, like Cæsar, in the senate house, by those who are
reiterating stab after stab, I would not, for this right hand, have her
turn to me, and say, _et tu quoque, mi fili! And thou too, my son!_


IN DEFENSE OF THE KENNISTONS

BY DANIEL WEBSTER

Gentlemen of the Jury,--It is true that the offense charged in the
indictment in this case is not capital; but perhaps this can hardly be
considered as favorable to the defendants. To those who are guilty, and
without hope of escape, no doubt the lightness of the penalty of
transgression gives consolation. But if the defendants are innocent, it
is more natural for them to be thinking upon what they have lost by
that alteration of the law which has left highway robbery no longer
capital, than what the guilty might gain by it. They have lost those
great privileges in their trial, which the law allows, in capital
cases, for the protection of innocence against unfounded accusation.
They have lost the right of being previously furnished with a copy of
the indictment, and a list of the government witnesses. They have lost
the right of peremptory challenge; and, notwithstanding the prejudices
which they know have been excited against them, they must show legal
cause of challenge, in each individual case, or else take the jury as
they find it. They have lost the benefit of assignment of counsel by
the court. They have lost the benefit of the Commonwealth's process to
bring in witnesses in their behalf. When to these circumstances it is
added that they are strangers, almost wholly without friends, and
without the means for preparing their defense, it is evident they must
take their trial under great disadvantages.

But without dwelling on these considerations, I proceed, Gentlemen of
the Jury, to ask your attention to those circumstances which cannot but
cast doubts on the story of the prosecutor.

The jury will naturally look to the appearances exhibited on the field
after the robbery. The portmanteau was there. The witnesses say that
the straps which fastened it to the saddle had been neither cut nor
broken. They were carefully unbuckled. This was very considerate for
robbers. It had been opened, and its contents were scattered about the
field. The pocket book, too, had been opened, and many papers it
contained found on the ground. Nothing valuable was lost but money. The
robbers did not think it well to go off at once with the portmanteau
and the pocket book. The place was so secure, so remote, so
unfrequented; they were so far from the highway, at least one full rod;
there were so few persons passing, probably not more than four or five
then in the road, within hearing of the pistols and the cries of
Goodridge; there being, too, not above five or six dwelling-houses,
full of people, within the hearing of the report of a pistol; these
circumstances were all so favorable to their safety, that the robbers
sat down to look over the prosecutor's papers, carefully examined the
contents of his pocket book and portmanteau, and took only the things
which they needed! There was money belonging to other persons. The
robbers did not take it. They found out it was not the prosecutor's,
and left it. It may be said to be favorable to the prosecutor's story,
that the money which did not belong to him, and the plunder of which
would seem to be the most probable inducement he could have to feign a
robbery, was not taken. But the jury will consider whether this
circumstance does not bear quite as strongly the other way, and whether
they can believe that robbers could have left this money, either from
accident or design.

II

The witnesses on the part of the prosecution have testified that the
defendants, when arrested, manifested great agitation and alarm;
paleness overspread their faces, and drops of sweat stood on their
temples. This satisfied the witnesses of the defendants' guilt, and
they now state the circumstances as being indubitable proof. This
argument manifests, in those who use it, an equal want of sense and
sensibility. It is precisely fitted to the feeling and the intellect of
a bum-bailiff. In a court of justice it deserves nothing but contempt.
Is there nothing that can agitate the frame or excite the blood but the
consciousness of guilt? If the defendants were innocent, would they not
feel indignation at this unjust accusation? If they saw an attempt to
produce false evidence against them, would they not be angry? And,
seeing the production of such evidence, might they not feel fear and
alarm? And have indignation, and anger, and terror no power to affect
the human countenance or the human frame?

Miserable, miserable, indeed, is the reasoning which would infer any
man's guilt from his agitation when he found himself accused of a
heinous offense; when he saw evidence which he might know to be false
and fraudulent brought against him; when his house was filled, from the
garret to the cellar, by those whom he might esteem as false witnesses;
and when he himself, instead of being at liberty to observe their
conduct and watch their motions, was a prisoner in close custody in his
own house, with the fists of a catchpoll clenched upon his throat.

From the time of the robbery to the arrest, five or six weeks, the
defendants were engaged in their usual occupations. They are not found
to have passed a dollar of money to anybody. They continued their
ordinary habits of labor. No man saw money about them, nor any
circumstance that might lead to a suspicion that they had money.
Nothing occurred tending in any degree to excite suspicion against
them. When arrested, and when all this array of evidence was brought
against them, and when they could hope in nothing but their innocence,
immunity was offered them again if they would confess. They were
pressed, and urged, and allured, by every motive which could be set
before them, to acknowledge their participation in the offense, and to
bring out their accomplices. They steadily protested that they could
confess nothing because they knew nothing. In defiance of all the
discoveries made in their house, they have trusted to their innocence.
On that, and on the candor and discernment of an enlightened jury, they
still rely.

If the jury are satisfied that there is the highest improbability that
these persons could have had any previous knowledge of Goodridge, or
been concerned in any previous concert to rob him; if their conduct
that evening and the next day was marked by no circumstance of
suspicion; if from that moment until their arrest nothing appeared
against them; if they neither passed money, nor are found to have had
money; if the manner of the search of their house, and the
circumstances attending it, excite strong suspicions of unfair and
fraudulent practices; if, in the hour of their utmost peril, no
promises of safety could draw from the defendants any confession
affecting themselves or others, it will be for the jury to say whether
they can pronounce them guilty.


IN DEFENCE OF JOHN E. COOK

Published in Depew's "Library of Oratory," E. J. Bowen and Company,
New York, publishers.

BY D. W. VOORHEES

Who is John E. Cook?

He has the right himself to be heard before you; but I will answer for
him. Sprung from an ancestry of loyal attachment to the American
government, he inherits no blood of tainted impurity. His grandfather,
an officer of the Revolution, by which your liberty, as well as mine,
was achieved, and his gray-haired father, who lived to weep over him, a
soldier of the war of 1812, he brings no dishonored lineage into your
presence. Born of a parent stock occupying the middle walks of life,
and possessed of all those tender and domestic virtues which escape the
contamination of those vices that dwell on the frozen peaks, or in the
dark and deep caverns of society, he would not have been here had
precept and example been remembered in the prodigal wanderings of his
short and checkered life.

Poor deluded boy! wayward, misled child! An evil star presided over thy
natal hour and smote it with gloom.

In an evil hour--and may it be forever accursed!--John E. Cook met John
Brown on the prostituted plains of Kansas. On that field of fanaticism,
three years ago, this fair and gentle youth was thrown into contact
with the pirate and robber of civil warfare.

Now look at John Cook, the follower. He is in evidence before you.
Never did I plead for a face that I was more willing to show. If evil
is there, I have not seen it. If murder is there, I am to learn to mark
the lines of the murderer anew. If the assassin is in that young face,
then commend me to the look of an assassin. No, gentlemen, it is a face
for a mother to love, and a sister to idolize, and in which the natural
goodness of his heart pleads trumpet-tongued against the deep damnation
that estranged him from home and its principles.

John Brown was the despotic leader and John E. Cook was an ill-fated
follower of an enterprise whose horror be now realizes and deplores. I
defy the man, here or elsewhere, who has ever known John E. Cook, who
has ever looked once fully into his face, and learned anything of his
history, to lay his hand on his heart and say that he believes him
guilty of the origin or the results of the outbreak at Harper's Ferry.

Here, then, are the two characters whom you are thinking to punish
alike. Can it be that a jury of Christian men will find no
discrimination should be made between them? Are the tempter and the
tempted the same in your eyes? Is the beguiled youth to die the same as
the old offender who has pondered his crimes for thirty years? Are
there no grades in your estimations of guilt? Is each one, without
respect to age or circumstances, to be beaten with the same number of
stripes?

Such is not the law, human or divine. We are all to be rewarded
according to our works, whether in punishment for evil, or blessings
for good that we have done. You are here to do justice, and if justice
requires the same fate to befall Cook that befalls Brown, I know
nothing of her rules, and do not care to learn. They are as widely
asunder, in all that constitutes guilt, as the poles of the earth, and
should be dealt with accordingly. It is in your power to do so, and by
the principles by which you yourselves are willing to be judged
hereafter, I implore you to do it!


IN DEFENSE OF THE SOLDIERS

Published in "Depew's Library of Oratory," E. J. Bowen and Company,
New York, publishers

BY JOSIAH QUINCY, JR.

May it please your honors, and you gentlemen of the jury,--We have at
length gone through the evidence in behalf of the prisoners. The
witnesses have now placed before you that state of facts from which
results our defense.

I stated to you, gentlemen, your duty in opening this cause--do not
forget the discharge of it. You are paying a debt you owe the community
for your own protection and safety: by the same mode of trial are your
own rights to receive a determination; and in your turn a time may come
when you will expect and claim a similar return from some other jury of
your fellow subjects.

How much need was there for my desire that you should suspend your
judgment till the witnesses were all examined? How different is the
complexion of the cause? Will not all this serve to show every honest
man the little truth to be attained in partial hearings? In the present
case, how great was the prepossession against us? And I appeal to you,
gentlemen, what cause there now is to alter our sentiments? Will any
sober, prudent man countenance the proceedings of the people in King
Street,--can any one justify their conduct,--is there any one man or
any body of men who are interested to espouse and support their
conduct?

Surely, no! But our inquiry must be confined to the legality of their
conduct, and here can be no difficulty. It was certainly illegal,
unless many witnesses are directly perjured: witnesses, who have no
apparent interest to falsify,--witnesses who have given their testimony
with candor and accuracy,--witnesses whose credibility stands
untouched,--whose credibility the counsel for the king do not pretend
to impeach or hint a suggestion to their disadvantage.

I say, gentlemen, by the standard of the law are we to judge the
actions of the people who were the assailants and those who were the
assailed and then on duty. And here, gentlemen, the rule we formerly
laid down takes place. To the facts, gentlemen, apply yourselves.
Consider them as testified; weigh the credibility of the witnesses--
balance their testimony--compare the several parts of it--see the
amount of it; and then, according to your oath, "make true deliverance
according to your evidence." That is, gentlemen, having settled the
facts, bring them truly to the standard of the law; the king's judges,
who are acquainted with it, who are presumed best to know it, will then
inspect this great standard of right and wrong, truth and justice; and
they are to determine the degree of guilt to which the fact rises.

II

May it please your honors, and you gentlemen of the jury,--After having
thus gone through the evidence and considered it as applicatory to all
and every one of the prisoners, let us take once more a brief and
cursory survey of matters supported by the evidence. And here let me
ask in sober reason, what language more opprobrious, what actions more
exasperating, than those used on this occasion? Words, I am sensible,
are no justification of blows, but they serve as the grand clew to
discover the temper and the designs of the agents; they serve also to
give us light in discerning the apprehensions and thoughts of those who
are the objects of abuse.

"You lobsters!"--"You bloody-back!"--"You coward!"--"You dastard!" are
but some of the expressions proved. What words more galling? What more
cutting and provoking to a soldier? But accouple these words with the
succeeding actions,--"You dastard!"--"You coward!" A soldier and a
coward!

This was touching "the point of honor and the pride of virtue." But
while these are as yet fomenting the passions and swelling the bosom,
the attack is made; and probably the latter words were reiterated at
the onset; at least, were yet sounding in the ear. Gentlemen of the
jury, for Heaven's sake, let us put ourselves in the same situation!
Would you not spurn at that spiritless institution of society which
tells you to be a subject at the expense of your manhood?

But does the soldier step out of his ranks to seek his revenge? Not a
witness pretends it. Did not the people repeatedly come within the
points of their bayonets and strike on the muzzles of the guns? You
have heard the witnesses.

Does the law allow one member of the community to behave in this manner
towards his fellow citizen, and then bid the injured party be calm and
moderate? The expressions from one party were--"Stand off, stand
off!"--"I am upon my station."--"If they molest me upon my post, I will
fire."--"Keep off!"

These words were likely to produce reflection and procure peace. But
had the words on the other hand a similar tendency? Consider the temper
prevalent among all parties at this time. Consider the situation of the
soldiery; and come to the heat and pressure of the action. The
materials are laid, the spark is raised, the fire enkindles, all
prudence and true wisdom are utterly consumed. Does common sense, does
the law expect impossibilities?

Here, to expect equanimity of temper, would be as irrational as to
expect discretion in a madman. But was anything done on the part of the
assailants similar to the conduct, warnings, and declarations of the
prisoners? Answer for yourselves, gentlemen! The words reiterated all
around stabbed to the heart; the actions of the assailants tended to a
worse end,--to awaken every passion of which the human breast is
susceptible; fear, anger, pride, resentment, revenge, alternately take
possession of the whole man.

To expect, under these circumstances, that such words would assuage the
tempest, that such actions would allay the flames,--you might as
rationally expect the inundations of a torrent would suppress a deluge,
or rather that the flames of Aetna would extinguish a conflagration!

III

Gentlemen of the Jury,--This case has taken up much of your time, and
is likely to take up so much more that I must hasten to a close.
Indeed, I should not have troubled you, by being thus lengthy, but from
a sense of duty to the prisoners; they who in some sense may be said to
have put their lives in my hands; they whose situation was so peculiar
that we have necessarily taken up more time than ordinary cases
require. They, under all these circumstances, placed a confidence it
was my duty not to disappoint, and which I have aimed at discharging
with fidelity. I trust you, gentlemen, will do the like; that you will
examine and judge with a becoming temper of mind; remembering that they
who are under oath to declare the whole truth think and act very
differently from bystanders, who, being under no ties of this kind,
take a latitude which is by no means admissible in a court of law.

I cannot close this cause better than by desiring you to consider well
the genius and spirit of the law which will be laid down, and to govern
yourselves by this great standard of truth. To some purposes, you may
be said, gentlemen, to be ministers of justice; and "ministers," says a
learned judge, "appointed for the ends of public justice, should have
written on their hearts the solemn engagements of his Majesty, at his
coronation, to cause law and justice in mercy to be executed in all his
judgments."

"The quality of mercy is not strained;
It droppeth as the gentle rain from heaven:...
It is twice blessed;
It blesseth him that gives, and him that takes."

I leave you, gentlemen, hoping you will be directed in your inquiry and
judgment to a right discharge of your duty. We shall all of us,
gentlemen, have an hour of cool reflection when the feelings and
agitations of the day shall have subsided; when we shall view things
through a different and a much juster medium. It is then we all wish an
absolving conscience. May you, gentlemen, now act such a part as will
hereafter insure it; such a part as may occasion the prisoners to
rejoice. May the blessing of those who were in jeopardy of life come
upon you--may the blessing of Him who is "not faulty to die" descend
and rest upon you and your posterity.


IN DEFENSE OF LORD GEORGE GORDON

Before the Court of King's Bench, 1781

BY LORD THOMAS ERSKINE

Gentlemen,--You have now heard, upon the solemn oaths of honest,
disinterested men, a faithful history of the conduct of Lord George
Gordon, from the day that he became a member of the Protestant
Association to the day that he was committed a prisoner to the Tower.
And I have no doubt, from the attention with which I have been honored
from the beginning, that you have still kept in your minds the
principles to which I entreated you would apply it, and that you have
measured it by that standard. You have, therefore, only to look back to
the whole of it together; to reflect on all you have heard concerning
him; to trace him in your recollection through every part of the
transaction; and, considering it with one manly, liberal view, to ask
your own honest hearts, whether you can say that this noble and
unfortunate youth is a wicked and deliberate traitor, who deserves by
your verdict to suffer a shameful and ignominious death, which will
stain the ancient honors of his house forever.

The crime which the Crown would have fixed upon him is, that he
assembled the Protestant Association round the House of Commons, not
merely to influence and persuade Parliament by the earnestness of their
supplications, but actually to coerce it by hostile, rebellious force;
that, finding himself disappointed in the success of that coercion, he
afterward incited his followers to abolish the legal indulgences to
Papists, which the object of the petition was to repeal, by the burning
of their houses of worship, and the destruction of their property,
which ended, at last, in a general attack on the property of all orders
of men, religious and civil, on the public treasures of the nation, and
on the very being of the government.

To support a charge of so atrocious and unnatural a complexion, the
laws of the most arbitrary nations would require the most
incontrovertible proof. And what evidence, gentlemen of the jury, does
the Crown offer to you in compliance with these sound and sacred
doctrines of justice? A few broken, interrupted, disjointed words,
without context or connection--uttered by the speaker in agitation and
heat--heard, by those who relate them to you, in the midst of tumult
and confusion--and even those words, mutilated as they are, in direct
opposition to, and inconsistent with, repeated and earnest declarations
delivered at the very same time and on the very same occasion, related
to you by a much greater number of persons, and absolutely incompatible
with the whole tenor of his conduct. Which of us all, gentlemen, would
be safe, standing at the bar of God or man, if we were not to be judged
by the regular current of our lives and conversations, but by detached
and unguarded expressions, picked out by malice, and recorded, without
context or circumstances, against us? Yet such is the only evidence on
which the Crown asks you to dip your hands, and to stain your
consciences, in the innocent blood of the noble and unfortunate youth
who stands before you.

I am sure you cannot but see, notwithstanding my great inability,
increased by a perturbation of mind (arising, thank God! from no
dishonest cause), that there has been not only no evidence on the part
of the Crown to fix the guilt of the late commotions upon the prisoner,
but that, on the contrary, we have been able to resist the probability,
I might almost say the possibility of the charge, not only by living
witnesses, whom we only ceased to call because the trial would never
have ended, but by the evidence of all the blood that has paid the
forfeit of that guilt already; since, out of all the felons who were
let loose from prisons, and who assisted in the destruction of our
property, not a single wretch was to be found who could even attempt to
save his own life by the plausible promise of giving evidence to-day.

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