Daniel Webster letter to Jeremiah Smith, 8 December 1817

Boston, December 8, 1817.

DEAR SIR, I received yours of the 4th, yesterday. In relation to the special verdict, my impression has been that we should insert every thing to show, as far as we can, that the State did not found and endow the college. I should wish it rather to appear what they had not done, than what they had ; but probably the one can only be shown, by showing the other. Therefore I think the jury had better find certain acts, grants, &c. and find that they are all the grants and acts made by the State. For the like reason, I should think it well to find the original grants, gifts, or endowments upon which the college set out. Perhaps these are well enough recited in the charter.

I should like to have all the late obnoxious acts found by the verdict. As to the assignment of errors, you will see the provision of the twenty-fifth section of the judiciary act. It will probably be better to assign the error relied on, namely, that the said statutes, of the said State of New Hampshire, are repugnant to the constitution of the United States and void. I do not know whether the general assignment would not be sufficient, but should prefer a special assignment also.

It is our misfortune that our cause goes to Washington on a single point. I wish we had it in such shape as to raise all the other objections, as well as the repugnancy of these acts to the constitution of the United States. I have been thinking whether it would not be advisable to bring a suit, if we can get such parties as will give jurisdiction in the circuit court of New Hampshire. I have thought of this the more, from hearing of sundry sayings of a great personage. Suppose the corporation of Dartmouth College should lease to some man of Vermont (e. g. C. Marsh) one of their New Hampshire farms, and that the lessee should bring ejectment for it. Or suppose the trustees of Dartmouth College should bring ejectment in Vermont in the circuit court for some of the Wheelock lands. In either of these modes the whole question might get before the court at Washington.

I suggest this only for consideration. Perhaps the known pendency of such a suit might induce Judge Smith, who fully intends to make the court's opinion in this case, to consider all the questions in the present cause.

If I argue this cause at Washington, every one knows I can only be the reciter of the argument made by you at Exeter. You are, therefore, principally interested, as to the matter of reputation, in the figure I make at Washington. Nothing will be expected of me but decent delivery of your matter. This seerns perfectly well understood this way, and I have been often complimented by gentlemen saying that, if the cause goes to Washington, they shall have a chance of hearing something of Judge Smith's argument.

I have some notion of coming to Exeter for a day or two, to practise and rehearse before I go to Washington. To be serious, however, you and Mason must help me arrange the argument. The best mode will be, to have it written out, or all collected in notes, so that I can write it out.

For this purpose, I will see you or him, or both, before I go to Washington. As we know pretty well what will be the argument on the other side, at least you do, who have heard Chief Justice Richardson's opinion, we ought, in the opening argument, to cover the whole case.

I here subjoin a printed form of writ of error, and the copy of a citation, which I find in the district clerk's office.

Yours always,

D. WEBSTER.