Their mission was to raise funds for the prosecution of this educational and missionary work on the American frontier. They succeeded in a manner almost miraculous. Over eleven thousand pounds were soon raised,[624]

and this fund was placed under the control of the Trustees, at the head of whom was the Earl of Dartmouth, one of the princ.i.p.al donors.[625]

From this circ.u.mstance the name of this n.o.bleman was given to Wheelock's inst.i.tution.

On December 13, 1769, John Wentworth, Royal Governor of the Province of New Hampshire, granted to Wheelock a charter for his school. It was, of course, in the name of the sovereign, but it is improbable that George III ever heard of it.[626] This charter sets forth the successful efforts of Wheelock, "at his own expense, on his own estate," to establish a charity school for Indian as well as white youth, in order to spread "the knowledge of the great Redeemer among their savage tribes"; the contributions to the cause; the trust, headed by Dartmouth--and all the other facts concerning Wheelock's adventure.

Because of these facts the charter establishes "DARTMOUTH COLLEGE" for the education of Indians, to be governed by "one body corporate and politick, ... by the name of the TRUSTEES OF DARTMOUTH COLLEGE."

These Trustees are const.i.tuted "forever hereafter ... in deed, act, and name a body corporate and politick," and are empowered to buy, receive, and hold lands, "jurisdictions, and franchises, for themselves and their successors, in fee simple, or otherwise howsoever." In short, the Trustees are authorized to do anything and everything that they may think proper. Wheelock is made President of the College, and given power to "appoint, ... by his last will" whomever he chooses to succeed himself as President of the College.

The charter grants to the Trustees and to "their successors forever," or "the major part of any seven or more of them convened," the power to remove and choose a President of the College, and to fill any vacancy in the Board of Trustees occasioned by death, or "removal," or any other cause. All this is to be done if seven Trustees, or a majority of seven, are present at any meeting. Also this majority of seven of the twelve Trustees, if no more attend a meeting, are authorized to make all laws, rules, and regulations for the College. Other powers are granted, all of which the Trustees and their successors are "to have and to hold ...

forever."[627] Under this charter, Dartmouth College was established and, for nearly half a century, governed and managed.

Eleazar Wheelock died in 1779, when sixty-eight years of age.[628] By his will he made his son John his successor as President of the College.[629] This young man, then but twenty-five years of age, was a Colonel of the Revolutionary Army.[630] He hesitated to accept the management of the inst.i.tution, but the Trustees finally prevailed upon him to do so.[631] The son was as strong-willed and energetic as the father, and gave himself vigorously to the work to which he had thus been called.

Within four years troubles began to gather about the College. They came from sources as strange as human nature itself, and mingled at last into a compound of animosities, prejudices, ambitions, jealousies, as curious as any aggregation of pa.s.sions ever arranged by the most extravagant novelist. It is possible here to mention but briefly only a few of the circ.u.mstances by which the famous Dartmouth quarrel may be traced. A woman, one Rachel Murch, complained to the church at Hanover, where Dartmouth College was situated, that a brother of the congregation, one Samuel Haze, had said of her, among other things, that her "character was ... as black as h.e.l.l."[632] This incident grew into a sectarian warfare that, by the most illogical and human processes, eventuated in arraigning the Congregationalists, or "established" Church, on one side and all other denominations on the other.[633]

Into this religious quarrel the economic issue entered, as it always does. The property of ministers of the "standing order," or "State religion," was exempt from taxation while that of other preachers was not.[634] Another source of discord arose out of the question as to whether the College Professor of Theology should preach in the village church. Coincident with this grave problem were subsidiary ones concerning the attendance of students at village worship and the benches they were to occupy. The fates threw still another ingredient of trouble into the cauldron. This was the election in 1793, as one of the Trustees, of Nathaniel Niles, whom Jefferson, with characteristic exuberance of expression, once declared to be "the ablest man I ever knew."[635]

Although a lawyer by profession, Niles had taken a course in theology when a student, his instructor being a Dr. Joseph Bellamy. Both the elder Wheelock and Bellamy had graduated from Yale and had indulged in some bitter sectarian quarrels, Bellamy as a Congregationalist and Wheelock as a Presbyterian. From tutor and parent, Niles and the younger Wheelock inherited this religious antagonism. Moreover, they were as antipathetic by nature as they were bold, uncompromising, and dominant.

Niles eventually acquired superior influence over his fellow Trustees, and thereafter no friend of President Wheelock was elected to the Board.[636]

An implacable feud arose. Wheelock asked the Legislature to appoint a committee to investigate the conduct of the College. This further angered the Trustees. By this time the warfare in the one college in the State had aroused the interest of the people of New Hampshire and, indeed, of all New England, and they were beginning to take sides. This process was hastened by a furious battle of pamphlets which broke out in 1815. This logomachy of vituperation was opened by President Wheelock who wrote an unsigned attack upon the Trustees.[637] Another pamphlet followed immediately in support of that of Wheelock.[638]

The Trustees quickly answered by means of two pamphlets.[639] The Wheelock faction instantly replied.[640] With the animosity and diligence of political, religious, and personal enemies, the adherents of the hostile factions circulated these pamphlets among the people, who became greatly excited. On August 26, 1815, the Trustees removed Wheelock from the office of President,[641] and thereby increased the public agitation. Two days after Wheelock's removal, the Trustees elected as his successor the Reverend Francis Brown of Yarmouth, Maine.[642]

During these years of increasing dissension, political parties were gradually drawn into the controversy; at the climax of it, the Federalists found themselves supporting the cause of the Trustees and the Republicans that of Wheelock. In a general, and yet quite definite, way the issue shaped itself into the maintenance of chartered rights and the established religious order, as against reform in college management and equality of religious sects. Into this issue was woven a contest over the State Judiciary. The Judiciary laws of New Hampshire were confused and inadequate and the courts had fallen in dignity. During the Republican control of the State, Republicans had been appointed to all judicial positions.[643] When, in 1813, the Federalists recovered supremacy, they, in turn, enacted a statute, the effect of which was the ousting of the Republican judges and the appointment of Federalists in their stead.[644] The Republicans made loud and savage outcry against this Federalist "outrage."

Upon questions so absurdly incongruous a political campaign raged throughout New Hampshire during the autumn and winter of 1815. In March, 1816, the Republicans elected William Plumer Governor,[645] and a Republican majority was sent to the Legislature.[646] Bills for the reform of the Judiciary[647] and the management of Dartmouth College[648] were introduced. That relating to Dartmouth changed the name of the College to "Dartmouth University," increased the number of Trustees from twelve to twenty-one, provided for a Board of twenty-five Overseers with a veto power over acts of the Trustees, and directed the President of the "University" to report annually to the Governor of the State upon the management and conditions of the inst.i.tution. The Governor and Council of State were empowered to appoint the Overseers; to fill up the existing Board of Trustees to the number of twenty-one; and authorized to inspect the "University" and report to the Legislature concerning it at least once in every five years.[649] In effect the act annulled the charter and brought the College under the control of the Legislature.

The bitterness occasioned by the pa.s.sage of this legislation was intense. Seventy-five members of the House entered upon the Journal their formal and emphatic protest.[650] The old Trustees adopted elaborate resolutions, declining to accept the provisions of the law and a.s.signing many reasons for their action. Among their criticisms of the act, the fact that it violated the contract clause of the National Const.i.tution was mentioned almost incidentally. In summing up their argument, the Trustees declared that "if the act ... has its intended operation and effect, every literary inst.i.tution in the State will hereafter hold its rights, privileges and property, not according to the settled established principles of law, but according to the arbitrary will and pleasure of every successive Legislature."[651]

In later resolutions the old Trustees declined to accept the provisions of the law, "but do hereby expressly refuse to act under the same."[652]

The Governor and Council promptly appointed Trustees and Overseers of the new University; among the latter was Joseph Story. The old Trustees were defiant and continued to run the College. When the winter session of the Legislature met, Governor Plumer sharply denounced their action;[653] and two laws were pa.s.sed for the enforcement of the College Acts, the second of which provided that any person a.s.suming to act as trustee or officer of the College, except as provided by law, should be fined $500 for each offense.[654]

The Trustees of the University "removed" the old Trustees of the College and the President, and the professors who adhered to them.[655] Each side took its case to the people.[656] The new regime ousted the old faculty from the College buildings and the faculty of the University were installed in them. Wheelock was elected President of the State inst.i.tution.[657] The College faculty procured quarters in Rowley Hall near by, and there continued their work, the students mostly adhering to them.[658]

The College Trustees took great pains to get the opinion of the best lawyers throughout New Hampshire,[659] as well as the advice of their immediate counsel, Jeremiah Mason, Jeremiah Smith, and Daniel Webster, the three ablest members of the New England bar, all three of them accomplished politicians.[660]

William H. Woodward, who for years had been Secretary and Treasurer of the College, had in his possession the records, account books, and seal.

As one of the Wheelock faction he declined to recognize the College Trustees and acted with the Board of the University. The College Trustees removed him from his official position on the College Board;[661] and on February 8, 1817, brought suit against him in the Court of Common Pleas of Grafton County for the recovery of the original charter, the books of record and account, and the common seal--all of the value of $50,000. By the consent of the parties the case was taken directly before the Superior Court of Appeals, and was argued upon an agreed state of facts returned by the jury in the form of a special verdict.[662]

There were two arguments in the Court of Appeals, the first during May and the second during September, 1817. The court consisted of William M.

Richardson, Chief Justice, and Samuel Bell and Levi Woodbury, a.s.sociate Justices, all Republicans appointed by Governor Plumer.

Mason, Smith, and Webster made uncommonly able and learned arguments.

The University was represented by George Sullivan and Ichabod Bartlett, who, while good lawyers, were no match for the legal triumvirate that appeared for the College.[663] The principle upon which Marshall finally overthrew the New Hampshire law was given a minor place[664] in the plans as well as in the arguments of Webster, Mason, and Smith.

The Superior Court of Appeals decided against the College. The opinion, delivered by Chief Justice Richardson, is able and persuasive. "A corporation, all of whose franchises are exercised for publick purposes, is a publick corporation"--a gift to such a corporation "is in reality a gift to the publick."[665] The corporation of Dartmouth College is therefore public. "Who has any private interest either in the objects or the property of this inst.i.tution?" If all its "property ... were destroyed, the loss would be exclusively publick." The Trustees, as individuals, would lose nothing. "The office of trustee of Dartmouth College is, in fact, a publick trust, as much so as the office of governor, or of judge of this court."[666]

No provision in the State or National Const.i.tution prevents the control of the College by the Legislature. The Const.i.tutional provisions cited by counsel for the College[667] "were, most manifestly, intended to protect private rights only."[668] No court has ever yet decided that such a charter as that of Dartmouth College is in violation of the contract clause of the National Const.i.tution, which "was obviously intended to protect private rights of property, and embraces all contracts relating to private property." This clause "was not intended to limit the power of the states" over their officers or "their own civil inst.i.tutions";[669] otherwise divorce laws would be void. So would acts repealing or modifying laws under which the judges, sheriffs, and other officers were appointed.

Even if the royal charter is a contract, it does not, cannot forever, prevent the Legislature from modifying it for the general good (as, for instance, by increasing the number of trustees) "however strongly the publick interest might require" this to be done. "Such a contract, in relation to a publick inst.i.tution, would ... be absurd and repugnant to the principles of all government. The king had no power to make such a contract," and neither has the Legislature. If the act of June 27 had provided that "the twenty-one trustees should forever have the exclusive controul of this inst.i.tution, and that no future legislature should add to their number," it would be as invalid as an act that the "number of judges of this court should never be augmented."[670]

It is against "sound policy," Richardson affirmed, to place the great inst.i.tutions of learning "within the absolute controul of a few individuals, and out of the controul of the sovereign power.... It is a matter of too great moment, too intimately connected with the publick welfare and prosperity, to be thus entrusted in the hands of a few."[671] So the New Hampshire court adjudged that the College Acts were valid and binding upon the old Trustees "without acceptance thereof, or a.s.sent thereto by them." And the court specifically declared that such legislation was "not repugnant to the const.i.tution of the United States."[672]

Immediately the case was taken to the Supreme Court by writ of error, which a.s.signed the violation of the National Const.i.tution by the College Acts as the ground of appeal.[673] On March 10, 1818, Webster opened the argument before a full bench.[674] Only a few auditors were present, and these were lawyers[675] who were in Washington to argue other cases.[676] Stirred as New Hampshire and the New England States were by the College controversy, the remainder of the country appears to have taken no interest in it. Indeed, west and south of the Hudson, the people seem to have known nothing of the quarrel. The Capital was either ignorant or indifferent. Moreover, Webster had not, as yet, made that great reputation, in Washington, as a lawyer as well as an orator which, later, became his peculiar crown of glory. At any rate, the public was not drawn to the court-room on that occasion.[677]

The argument was one of the shortest ever made in a notable case before the Supreme Court during the twenty-eight years of its existence up to this time. Not three full days were consumed by counsel on both sides--a s.p.a.ce of time frequently occupied by a single speaker in hearings of important causes.[678]

In talents, bearing, and preparation the attorneys for the College were as much superior to those for the University as, in the Chase impeachment trial, the counsel for the defense were stronger than the House managers.[679] Indeed, the similarity of the arguments in the Chase trial and in the Dartmouth case, in respect to the strength and preparation of opposing counsel, is notable; and in both cases the victory came to the side having the abler and better-prepared advocates.

With Webster for the College was Joseph Hopkinson of Philadelphia, who had so distinguished himself in the Chase trial exactly thirteen years earlier. Hopkinson was now in his forty-ninth year, the unrivaled leader of the Philadelphia bar and one of the most accomplished of American lawyers.[680]

It would seem incredible that sensible men could have selected such counsel to argue serious questions before any court as those who represented the University in this vitally important controversy. The obvious explanation is that the State officials and the University Trustees were so certain of winning that they did not consider the employment of powerful and expensive attorneys to be necessary.[681] In fact, the belief was general that the contest was practically over and that the appeal of the College to the Supreme Court was the pursuit of a feeble and forlorn hope.

Even after his powerful and impressive argument in the Supreme Court, Webster declared that he had never allowed himself "to indulge any great hopes of success."[682] It was not unnatural, then, that the State and the University should neglect to employ adequate counsel.

John Holmes, a Representative in Congress from that part of Ma.s.sachusetts which afterward became the State of Maine, appeared for the University. He was notoriously unfitted to argue a legal question of any weight in any court. He was a busy, agile, talkative politician of the roustabout, hail-fellow-well-met variety, "a power-on-the-stump"

orator, gifted with cheap wit and tawdry eloquence.[683]

a.s.sociated with Holmes was William Wirt, recently appointed Attorney-General. At that particular time Wirt was all but crushed by overwork, and without either leisure or strength to master the case and prepare an argument.[684] Never in Wirt's life did he appear in any case so poorly equipped as he was in the Dartmouth controversy.[685]

Webster's address was a combination of the arguments made by Mason and Smith in the New Hampshire court. Although the only question before the Supreme Court was whether the College Acts violated the contract clause of the Const.i.tution, Webster gave comparatively scant attention to it; or, perhaps it might be said that most of his argument was devoted to laying the foundation for his brief reasoning on the main question. In laying this foundation, Webster cleverly brought before the court his version of the history of the College, the situation in New Hampshire, the plight of inst.i.tutions like Dartmouth, if the College Acts were permitted to stand.

The facts were, said Webster, that Wheelock had founded a private charity; that, to perpetuate this, the charter created a corporation by the name of "The Trustees of Dartmouth College," with the powers, privileges, immunities, and limitations set forth in the charter. That instrument provided for no public funds, but only for the perpetuation and convenient management of the private charity. For nearly half a century the College "thus created had existed, uninterruptedly, and usefully." Then its happy and prosperous career was broken by the rude and despoiling hands of the Legislature of the State which the College had so blessed by the education of New Hampshire youth.

What has the Legislature done to the College? It has created a new corporation and transferred to it "all the _property_, _rights_, _powers_, _liberties and privileges_ of the old corporation." The spirit and the letter of the charter were wholly changed by the College Acts.[686] Moreover, the old Trustees "are to be _punished_" for not accepting these revolutionary laws. A single fact reveals the confiscatory nature of these statutes: Under the charter the president, professors, and tutors of the College had a right to their places and salaries, "subject to the twelve trustees alone"; the College Acts change all this and make the faculty "accountable to new masters."

If the Legislature can make such alterations, it can abolish the charter "rights and privileges altogether." In short, if this legislation is sustained, the old Trustees "have no _rights_, _liberties_, _franchises_, _property or privileges_, which the legislature may not revoke, annul, alienate or transfer to others whenever it sees fit."

Such acts are against "common right" as well as violations of the State and National Const.i.tutions.[687]

Although, says Webster, nothing is before the court but the single question of the violation of the National Const.i.tution, he will compare the New Hampshire laws with "fundamental principles" in order that the court may see "their true nature and character." Regardless of written const.i.tutions, "these acts are not the exercise of a power properly legislative." They take away "vested rights"; but this involves a "forfeiture ... to ... declare which is the proper province of the judiciary."[688] Dartmouth College is not a civil but "an _eleemosynary_ corporation," a "private charity"; and, as such, not subject to the control of public authorities.[689] Does Dartmouth College stand alone in this respect? No! Practically all American inst.i.tutions of learning have been "established ... by incorporating governours, or trustees....

All such corporations are ... in the strictest legal sense a private charity." Even Harvard has not "any surer t.i.tle than Dartmouth College.

It may, to-day, have more friends; but to-morrow it may have more enemies. Its legal rights are the same. So also of Yale College; and indeed of all others."[690]

From the time of Magna Charta the privilege of being a member of such eleemosynary corporations "has been the object of legal protection." To contend that this privilege may be "taken away," because the Trustees derive no "pecuniary benefit" from it, is "an extremely narrow view." As well say that if the charter had provided that each Trustee should be given a "commission on the disburs.e.m.e.nt of the funds," his status and the nature of the corporation would have been changed from public to private. Are the rights of the Trustees any the less sacred "because they have undertaken to administer it [the trust] gratuitously?... As if the law regarded no rights but the rights of money, and of visible tangible property!"[691]

The doctrine that all property "of which the use may be beneficial to the publick, belongs therefore to the publick," is without principle or precedent. In this very matter of Dartmouth College, Wheelock might well have "conveyed his property to trustees, for precisely such uses as are described in this charter"--yet n.o.body would contend that any Legislature could overthrow such a private act. "Who ever appointed a legislature to administer his charity? Or who ever heard, before, that a gift to a _college_, or _hospital_, or an _asylum_, was, in reality, nothing but a gift to the state?"[692]

Vermont has given lands to the College; was this a gift to New Hampshire? "What hinders Vermont ... from resuming her grants," upon the ground that she, equally with New Hampshire, is "the representative of the publick?" In 1794, Vermont had "granted to the respective towns in that state, certain glebe lands lying within those towns _for the sole use and support of religious worship_." Five years later, the Legislature of that State repealed this grant; "but this court declared[693] that the act of 1794, 'so far as it granted the glebes to the towns, _could not afterwards be repealed by the legislature, so as to divest the rights of the towns under the grant_.'"[694]

So with the Trustees of Dartmouth College. The property entrusted to them was "private property"; and the right to "administer the funds, and ... govern the college was a _franchise_ and _privilege_, solemnly granted to them," which no Legislature can annul. "The use being publick in no way diminishes their legal estate in the property, or their t.i.tle to the franchise." Since "the acts in question violate property, ...

take away privileges, immunities, and franchises, ... deny to the trustees the protection of the law," and "are retrospective in their operation," they are, in all respects, "against the const.i.tution of New Hampshire."[695]

It will be perceived by now that Webster relied chiefly on abstract justice. His main point was that, if chartered rights could be interfered with at all, such action was inherently beyond the power of the Legislature, and belonged exclusively to the Judiciary. In this Webster was rigidly following Smith and Mason, neither of whom depended on the violation of the contract clause of the National Const.i.tution any more than did Webster.

Well did Webster know that the Supreme Court of the United States could not consider the violation of a State const.i.tution by a State law. He merely indulged in a device of argument to bring before Marshall and the a.s.sociate Justices those "fundamental principles," old as Magna Charta, and embalmed in the State Const.i.tution, which protect private property from confiscation.[696] Toward the close of his argument, Webster discusses the infraction of the National Const.i.tution by the New Hampshire College Acts, a violation the charge of which alone gave the Supreme Court jurisdiction over the case.

What, asks Webster, is the meaning of the words, "no state shall pa.s.s any ... law impairing the obligation of contracts"? Madison, in the _Federalist_, clearly states that such laws "'are contrary to the first principles of the social compact, and to every principle of sound legislation.'" But this is not enough. "Our own experience," continues Madison, "has taught us ... that additional fences" should be erected against spoliations of "personal security and private rights." This was the reason for inserting the contract clause in the National Const.i.tution--a provision much desired by the "sober people of America,"

who had grown "weary of the fluctuating policy" of the State Governments and beheld with anger "that sudden changes, and legislative interferences in cases affecting personal rights, become jobs in the hands of enterprising and influential speculators." These, said Webster, were the words of James Madison in Number 44 of the _Federalist_.