Volume IV Part 28 (1/2)

For whose benefit was the property of Dartmouth College given to that inst.i.tution? For the people at large, as counsel insist? Read the charter. Does it give the State ”any exclusive right to the property of the college, any exclusive interest in the labors of the professors?”

Does it not rather ”merely indicate a willingness that New Hamps.h.i.+re should enjoy those advantages which result to all from the establishment of a seminary of learning in the neighborhood? On this point we think it impossible to entertain a serious doubt.” For the charter shows that, while the spread of education and religion was the object of the founders of the College, the ”particular interests” of the State ”never entered into the minds of the donors, never const.i.tuted a motive for their donation.”[751]

It is plain, therefore, that every element of the problem shows ”that Dartmouth College is an eleemosynary inst.i.tution, incorporated for the purpose of perpetuating ... the bounty of the donors, to the specified objects of that bounty”; that the Trustees are legally authorized to perpetuate themselves and that they are ”not public officers”; that, in fine, Dartmouth College is a ”seminary of education, incorporated for the preservation of its property, and the perpetual application of that property to the objects of its creation.”[752]

There remains a question most doubtful of ”all that have been discussed.” Neither those who have given money or land to the College, nor students who have profited by those benefactions, ”complain of the alteration made in its charter, or think themselves injured by it. The trustees alone complain, and the trustees have no beneficial interest to be protected.” Can the charter ”be such a contract as the const.i.tution intended to withdraw from the power of state legislation?”[753]

Wheelock and the other philanthropists who had endowed the College, both before and after the charter was granted, made their gifts ”for something ... of inestimable value--... the perpetual application of the fund to its object, in the mode prescribed by themselves.... The corporation ... stands in their place, and distributes their bounty, as they would themselves have distributed it, had they been immortal.” Also the rights of the students ”collectively” are ”to be exercised ... by the corporation.”[754]

The British Parliament is omnipotent. Yet had it annulled the charter, even immediately after it had been granted and conveyances made to the corporation upon the faith of that charter, ”so that the living donors would have witnessed the disappointment of their hopes, the perfidy of the transaction would have been universally acknowledged.” Nevertheless, Parliament would have had the power to perpetrate such an outrage.

”Then, as now, the donors would have had no interest in the property; ... the students ... no rights to be violated; ... the trustees ... no private, individual, beneficial interest in the property confided to their protection.” But, despite the legal power of Parliament to destroy it, ”the contract would at that time have been deemed sacred by all.”

”What has since occurred to strip it of its inviolability? Circ.u.mstances have not changed it. In reason, in justice, and in law, it is now what it was in 1769.” The donors and Trustees, on the one hand, and the Crown on the other, were the original parties to the arrangement stated in the charter, which was ”plainly a contract” between those parties. To the ”rights and obligations” of the Crown under that contract, ”New Hamps.h.i.+re succeeds.”[755] Can such a contract be impaired by a State Legislature?

”It is a contract made on a valuable consideration.

”It is a contract for the security and disposition of property.

”It is a contract, on the faith of which real and personal estate has been conveyed to the corporation.

”It is then a contract within the letter of the const.i.tution, and within its spirit also, unless” the nature of the trust creates ”a particular exception, taking this case out of the prohibition contained in the const.i.tution.”

It is doubtless true that the ”preservation of rights of this description was not particularly in the view of the framers of the const.i.tution when the clause under consideration was introduced into that instrument,” and that legislative interferences with contractual obligations ”of more frequent recurrence, to which the temptation was stronger, and of which the mischief was more extensive, const.i.tuted the great motive for imposing this restriction on the state legislatures.

”But although a particular and a rare case may not ... induce a rule, yet it must be governed by the rule, when established, unless some plain and strong reason for excluding it can be given. It is not enough to say that this particular case was not in the mind of the convention when the article was framed, nor of the American people when it was adopted. It is necessary to go farther, and to say that, had this particular case been suggested, the language [of the contract clause] would have been so varied as to exclude it, or it would have been made a special exception.”[756]

Can the courts now make such an exception? ”On what safe and intelligible ground can this exception stand?” Nothing in the language of the Const.i.tution; no ”sentiment delivered by its contemporaneous expounders ... justify us in making it.”

Does ”the nature and reason of the case itself ... sustain a construction of the const.i.tution, not warranted by its words?” The contract clause was made a part of the Nation's fundamental law ”to give stability to contracts.” That clause in its ”plain import” comprehends Dartmouth's charter. Does public policy demand a construction which will exclude it? The fate of all similar corporations is involved. ”The law of this case is the law of all.”[757] Is it so necessary that Legislatures shall ”new-model” such charters ”that the ordinary rules of construction must be disregarded in order to leave them exposed to legislative alteration?”

The importance attached by the American people to corporate charters like that of Dartmouth College is proved by ”the interest which this case has excited.” If the framers of the Const.i.tution respected science and literature so highly as to give the National Government exclusive power to protect inventors and writers by patents and copyrights, were those statesman ”so regardless of contracts made for the advancement of literature as to intend to exclude them from provisions made for the security of ordinary contracts between man and man?”[758]

No man ever did or will found a college, ”believing at the time that an act of incorporation const.i.tutes no security for the inst.i.tution; believing that it is immediately to be deemed a public inst.i.tution, whose funds are to be governed and applied, not by the will of the donor, but by the will of the legislature. All such gifts are made in the pleasing, perhaps delusive hope, that the charity will flow forever in the channel which the givers have marked out for it.”

Since every man finds evidence of this truth ”in his own bosom,” can it be imagined that ”the framers of our const.i.tution were strangers” to the same universal sentiment? Although ”feeling the necessity ... of giving permanence and security to contracts,” because of the ”fluctuating” course and ”repeated interferences” of Legislatures which resulted in the ”most perplexing and injurious embarra.s.sments,” did the framers of the Const.i.tution nevertheless deem it ”necessary to leave these contracts subject to those interferences?” Strong, indeed, must be the motives for making such exceptions.[759]

Finally, Marshall declares that the ”opinion of the court, after mature deliberation, is, that this is a contract, the obligation of which cannot be impaired without violating the Const.i.tution of the United States.”[760]

Do the New Hamps.h.i.+re College Acts impair the obligations of Dartmouth's charter? That instrument gave the Trustees ”the whole power of governing the college”; stipulated that the corporation ”should continue forever”; and ”that the number of trustees should forever consist of twelve, and no more.” This contract was made by the Crown, a power which could have made ”no violent alteration in its essential terms, without impairing its obligation.”

The powers and duties of the Crown were, by the Revolution, ”devolved on the people of New Hamps.h.i.+re.” It follows that, since the Crown could not change the charter of Dartmouth without impairing the contract, neither can New Hamps.h.i.+re. ”All contracts, and rights, respecting property, remained unchanged by the revolution.”[761]

As to whether the New Hamps.h.i.+re College Acts radically alter the charter of Dartmouth College, ”two opinions cannot be entertained.” The State takes over the government of the inst.i.tution. ”The will of the state is subst.i.tuted for the will of the donors, in every essential operation of the college.... The charter of 1769 exists no longer”--the College has been converted into ”a machine entirely subservient to the will of government,” instead of the ”will of its founders.”[762] Therefore, the New Hamps.h.i.+re College laws ”are repugnant to the const.i.tution of the United States.”[763]

On account of the death of Woodward, who had been Secretary and Treasurer of the University, and formerly held the same offices in the College against whom the College Trustees had brought suit, Webster moved for judgment _nunc pro tunc_; and judgment was immediately entered accordingly.

Not for an instant could Webster restrain the expression of his joy.

Before leaving the court-room he wrote his brother: ”All is safe.... The opinion was delivered by the Chief Justice. It was very able and very elaborate; it goes the whole length, and leaves not an inch of ground for the University to stand on.”[764] He informed President Brown that ”all is safe and certain.... I feel a load removed from my shoulders much heavier than they have been accustomed to bear.”[765] To Mason, Webster describes Marshall's manner: ”The Chief Justice's opinion was in his own peculiar way. He reasoned along from step to step; and, not referring to the cases [cited], adopted the principles of them, and worked the whole into a close, connected, and very able argument.”[766]

At the same time Hopkinson wrote Brown in a vein equally exuberant: ”Our triumph ... has been complete. Five judges, only six attending, concur not only in a decision in our favor, but in placing it upon principles broad and deep, and which secure corporations of this description from legislative despotism and party violence for the future.... I would have an inscription over the door of your building, 'Founded by Eleazar Wheelock, Refounded by Daniel Webster.'”[767] The high-tempered Pinkney was vocally indignant. ”He talked ... and bl.u.s.tered” ungenerously, wrote Webster, ”because ... the party was in a fever and he must do something for his fees. As he could not talk _in_ court, he therefore talked _out_ of court.”[768]