Volume IV Part 26 (1/2)
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 Hamps.h.i.+re, 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 wors.h.i.+p 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 Hamps.h.i.+re 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 Hamps.h.i.+re 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 Hamps.h.i.+re 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 Hamps.h.i.+re,[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 Hamps.h.i.+re 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.