CHAPTER XII.

ADMINISTRATION OF PRESIDENT BROWN.--CONTEST BETWEEN THE COLLEGE AND

THE STATE.--TRIUMPH OF THE COLLEGE.

Rev. Francis Brown of North Yarmouth, Maine, was elected the successor

of President Wheelock. His character will be the subject of a later

chapter. He was inaugurated in September, 1815, and entered at once

with vigor and earnestness upon the performance of his official

duties.

The Committee of the New Hampshire Legislature of 1815, Rev. Ephraim

P. Bradford, Nathaniel A. Haven, and Daniel A. White, appointed to

investigate the affairs of the college, reported in substance, that

there was no ground for interference by the State.

The deep interest in the college question produced a political

revolution in the State. In his message to the Legislature at the

opening of the session in June, 1816, Governor Plumer says:

"Permit me to invite your consideration to the state and condition of

Dartmouth College, the head of our learned institutions. As the State

has contributed liberally to the establishment of its funds, and as

our constituents have a deep interest in its prosperity, it has a

strong claim to our attention. The charter of that college was granted

December 13th, 1769, by John Wentworth, who was then Governor of New

Hampshire, under the authority of the British king. As it emanated

from royalty, it contained, as was natural it should, principles

congenial to monarchy; among others, it established Trustees, made

seven a quorum, and authorized a majority of those present to remove

any of its members which they might consider unfit or incapable, and

the survivors to perpetuate the Board by themselves, electing others

to supply vacancies. This last principle is hostile to the spirit and

genius of a free government. Sound policy therefore requires that the

mode of election should be changed, and that Trusties, in future,

should be elected by some other body of men.

"The college was founded for the public good, not for the benefit or

emolument of its Trustees; and the right to amend and improve acts of

incorporation of this nature has been exercised by all governments,

both monarchical and republican. In the Charter of Dartmouth College

it is expressly provided that the president, trustees, professors,

tutors and other officers, shall take the oath of allegiance to the

British king; but if the laws of the United States, as well as those

of New Hampshire, abolished by implication that part of the Charter,

much more might they have done it directly and by express words. These

facts show the authority of the Legislature to interfere upon this

subject."

Governor Plumer communicated this message to Jefferson, who replied in

his letter of July 21, 1816: "It is replete with sound principles, and

truly republican. Some articles, too, are worthy of notice. The idea

that institutions established for the use of the nation cannot be

touched nor modified, even to make them answer their end, because of

rights gratuitously supposed in those employed to manage them in trust

for the public, may, perhaps, be a salutary provision against the

abuses of a monarch, but it is most absurd against the nation itself.

Yet our lawyers and priests generally inculcate this doctrine, and

suppose that preceding generations held the earth more freely than we

do; had a right to impose laws on us, unalterable by ourselves; and

that we, in like manner, can make laws and impose burdens on future

generations, which they will have no right to alter; in fine, that the

earth belongs to the dead, and not to the living."

The following action shows the result:

"The undersigned, three of the members of the Board of Trustees of

Dartmouth College, having this morning seen a printed copy of a bill

before the Honorable House [of the New Hampshire Legislature], the

provisions of which, should they go into effect would set aside the

Charter of the college, and wholly change the administration of its

concerns, beg leave respectfully to remonstrate against its passage.

The provisions of the bill referred to change the name of the

corporation; enlarge the number of Trustees; alter the number to

constitute a quorum; render persons living out of the State, who are

now eligible, hereafter ineligible; vacate the seats of those members

who are not inhabitants of the State; deprive the Trustees of the

right of electing members to supply vacancies; and give to the new

Board of Trustees an arbitrary power of annulling everything

heretofore transacted by the Trustees; and this last without the

concurrence of the proposed Board of Overseers. The consent of the

present Board of Trustees is in no instance contemplated as necessary

to give validity to the new act of incorporation.

"In the opinion of the undersigned, these changes, modifications, and

alterations effectually destroy the present Charter of the college and

constitute a new one.

"Should the bill become a law, it will be obvious to our fellow

citizens that the Trustees of Dartmouth College will have been

deprived of their Charter rights without having been summoned or

notified of any such proceeding against them. It will be equally

obvious to our fellow citizens that the facts reported by the

committee of investigation [of the last Legislature] did not form the

ground and basis of the new act of incorporation; and that no evidence

of facts of any sort, relating to the official conduct of the

Trustees, other than the report of the committee of investigation, was

submitted to your Honorable Bodies.

"To deprive a Board of Trustees of their Charter rights, after they

have been accused of gross misconduct in office, without requiring any

proof whatever of such misconduct, appears to your remonstrants

unjust, and not conformable to the spirit of the free and happy

government under which we live. If the property has been misapplied,

if there has been any abuse of power upon the part of the Trustees,

they are fully sensible of their high responsibility; but they have

always believed, and still believe, that a sound construction of the

powers granted to the Legislature, gives them, in this case, only the

right to order, for good cause, a prosecution in the judicial courts.

"A different course effectually blends judicial and legislative

powers, and constitutes the Legislature a judicial tribunal.

"The undersigned also beg leave to remonstrate against the passage of

the bill, on the ground of inexpediency. A corporation is a creature

of the law, to which certain powers, rights, and privileges are

granted; and amongst others that of holding property. Destroy this

creature, this body politic, and all its property immediately reverts

to its former owners. This doctrine has long been recognized and

established in all governments of law. Any material alteration of the

corporation, without its consent, and certainly such essential

alterations as the bill under consideration is intended to make, will

be followed with the same effect. The funds belonging to the college,

although not great, are highly important to the institution; and a

considerable proportion of them were granted by, and lie in, the State

of Vermont. The undersigned most earnestly entreat the Honorable

Legislature not to put the funds of the college in jeopardy; not to

put at hazard substantial income, under expectations which may or may

not be realized."

After alluding to lack of precedent for the proposed action, and the

necessary increase of expenditures which would result from its

consummation, they proceed to say: "If the provisions of this bill

should take effect, we greatly fear that the concerns of the college

will be drawn into the vortex of political controversy. We refer

particularly to that section of the bill which gives the appointment

of Trustees and Overseers to the Governor and Council. The whole

history of the United States for the last twenty years teaches us a

lesson which ought not to be kept out of view. Our literary

institutions hitherto have been preserved from the influence of party.

The tendency of this bill, unless we greatly mistake, is to convert

the peaceful retreat of our college into a field for party warfare.

"Whilst the undersigned deem it their indispensable duty to

remonstrate in the most respectful terms against the passage of the

bill referred to, they have no objection, and they have no reason to

believe their fellow Trustees have any objection, to the passage of a

law connecting the government of the State with that of the college,

and creating every salutary check and restraint upon the official

conduct of the Trustees and their successors that can be reasonably

required, and with respectful deference they would propose the

following outlines of a plan for that purpose.

"The Councillors and Senators of New Hampshire together with the

Speaker of the House of Representatives for the time being, shall

constitute a Board of Overseers of Dartmouth College, any ten of whom

shall be a quorum for transacting business. The Overseers shall meet

annually at the college, on the day preceding Commencement. They shall

have an independent right to organize their own body, and to form

their own rules; but as soon as they shall have organized themselves

they shall give information thereof to the Trustees. Whenever any vote

shall have been passed by the Trustees it shall be communicated to the

Overseers, and shall not have effect until it shall have the

concurrence of the Overseers. Provided, nevertheless, that if at any

meeting a quorum of the Overseers shall not be formed, the Trustees

shall have full power to confer degrees, in the same manner as though

there were no Overseers; and also to appoint Trustees or other

officers (not a president or professor), and to enact such laws as the

interests of the institution shall indispensably require; but no law

passed by the Trustees shall in such case have force longer than until

the next annual meeting of the Boards, unless it shall then be

approved by the Overseers. Neither of the Boards shall adjourn, except

from day to day, without the consent of the other. It shall be the

duty of the president of the college, whenever in his opinion the

interests of the institution shall require it, or whenever requested

thereto by three Trustees, or three Overseers, to call special

meetings of both Boards, causing notice to be given in writing to each

Trustee and Overseer, of the time and place; but no meeting of one

Board shall ever be called except at the same time and place with the

other. It shall be the duty of the president of the college annually,

in the month of May, to transmit to his Excellency, the Governor, a

full and particular account of the state of the funds, the number of

students and their progress, and generally the state and condition of

the college.

"If the plan above suggested should meet the approbation of the

Honorable Legislature, and good men of all parties give it their

sanction, we may all anticipate, with high satisfaction, the future

prosperity of the college, and its incalculable usefulness to the

State; but if a union of the friends of literature and science, of all

parties and sects, cannot be attained; if the triumph of one party

over the other be absolutely indispensable; fearful apprehensions must

fill the mind of every considerate man, every dispassionate friend of

Dartmouth College.

Thos. W. Thompson,

Elijah Paine,

Asa M'Farland.

"June 19, 1816."

* * * * *

The effect of this proposed compromise was a modification of the bill

in some of its important features. Against the amended bill, which was

passed a few days afterward, there was a farther protest, from which

we make brief extracts.

"The undersigned would not trouble the Honorable Legislature with any

remarks in addition to those contained in their remonstrance of the

19th inst. did they not believe it was a duty not to be omitted."

Referring to the amended bill, they continue:

"They have not been able to obtain a sight of it, but have heard it

contains provisions for an increase of the Board of Trustees to the

number of twenty-one, a majority of whom to constitute a quorum, and

that the additional number are to be appointed by His Excellency the

Governor and the Honorable the Council. To many of the topics of

argument, suggested in their former remonstrance (which are equally

applicable against the passage of the bill in its present shape) they

respectfully ask leave to add, that the bill in its present shape

destroys the identity of the corporation, known in the law by the name

of the Trustees of Dartmouth College, without the consent of the

corporation, and consequently the corporation to be created by the

present bill must and will be deemed by courts of law altogether

diverse and distinct from the corporation to which all the grants of

property have hitherto been made; and therefore the new corporation

cannot hold the property granted to the corporation created by the

charter of 1769.

"By the Charter of Dartmouth College a contract was made by the then

supreme power of the State with the twelve persons therein named, by

which, when accepted by the persons therein named, certain rights and

privileges were vested in them and their successors, for the guarantee

of which the faith of government was pledged by necessary implication.

In the same instrument the faith of government was pledged that the

corporation should consist of twelve persons and no more. The change

in the government of the State, since taken place, does not in the

least possible degree impair the validity of this contract,--otherwise

nearly all the titles to real estate, held by our fellow citizens,

must be deemed invalid.

"The passage of the bill now before the Honorable House will, in the

deliberate opinion of the undersigned, violate the plighted faith of

the government. If the undersigned are correct in considering the

Charter of 1769 in the nature of a contract, and if the bill, in its

present shape, becomes a law, we think it necessarily follows that it

will also violate an important clause in the 10th section of the 1st

article in the Constitution of the United States, which provides, that

no State shall pass any law impairing the obligation of contracts.

"The Honorable Legislature will permit us to add, that as it is well

known that the Trustees have, as a Board, been divided on certain

important subjects, although the minority has been very small, should

the Legislature now provide for nine new Trustees, to be appointed by

His Excellency the Governor and the Honorable the Council, and that

without any facts being proved to the Legislature, or any Legislative

report having been made, showing that the state of things at the

college rendered the measure necessary, it must be seen by our fellow

citizens that the majority of the Trustees have been by the

Legislature, for some unacknowledged cause, condemned unheard.

Thomas W. Thompson,

Asa M'Farland.

"June 24, 1816."

* * * * *

The recommendations of the Governor in substance, became a law; the

name of the college was changed to "University;" the number of the

Trustees was increased to twenty-one; a Board of Overseers was

created, to be appointed by the Governor and Council; the president

and professors of the university were required to take an oath to

support the Constitution of the United States, and of the State of New

Hampshire; and the act provided that "perfect freedom of religious

opinion should be enjoyed by all the students and officers of the

university." The committee to whom the message, etc., relating to this

subject, were referred, it should be remarked, did not undertake to

decide in favor of either party to the controversy, but alleged that

the troubles arose from certain defects in the Charter, and that they

would recur again in some form, unless those defects were remedied.

The debates upon the historical and constitutional questions involved

were able. The minority were ably led, both inside and outside the

Legislature, but parliamentary tactics availed them nothing. Many of

them joined in a written protest against the passage of the bill, the

substance of which has already appeared in the action of the Trustees.

Directly after the passage of this bill Mr. Marsh prepared an

elaborate argument, never published, setting forth the essence of the

leading points of the case, as viewed by the majority of the old

Trustees.

The following letter, addressed to Mr. Timothy Bigelow, Boston, is

worthy of notice in this connection:

"Concord, July 27, 1816.

"Dear Sir: Dr. McFarland will do himself the pleasure to hand you

this. In him you will recognize an old acquaintance. We wish to get

the opinions of as many legal friends as we can upon the question of

legitimate power in the New Hampshire Legislature, to pass the act

relating to Dartmouth College, and with regard to the course the old

Trustees ought to pursue. It is an interest, we think, common to all

well wishers to New England.

"The old Trustees, I am confident, are willing to take just that

course that their wisest and best friends recommend.

"Very cordially yours,

Thomas W. Thompson."

August 28, 1816, a majority of the old Trustees formally refused to

accept the provisions of the act.

A meeting of the Trustees of the university, under the act of June 27,

1816, was called, but through the illness of a single member, failed

for want of a quorum. The judges of the Superior Court, on December 5,

1816, in answer to the Governor and Council, gave their opinion that

the executive department had no authority to fill the vacancies which

had occurred. To remedy this, the Legislature, on December 18, 1816,

passed an additional act providing for filling the vacancies, the

calling of meetings and fixing a quorum; and on December 26, 1816,

passed another act imposing the penalty of five hundred dollars upon

any person who should assume any office in the university except by

virtue of the preceding acts.

In view of this action President Brown writes to Mr. Timothy Farrar,

of Portsmouth, January 3, 1817:

"Now, what shall we do? One of these four courses must be taken. We

must either keep possession and go on to teach as usual, without any

regard to the law, or, withdrawing from the college edifice and all

the college property, continue to instruct as the officers of

Dartmouth College; or, relinquishing this name for the present,

collect as many students as will join us, and instruct them as private

but associated individuals; or else we must give all up and disperse.

Will you give us your opinion, what may be duty or what expedient, as

soon as convenient? Particularly, will you give us your opinion

whether, supposing this oppressive act to be judged constitutional, we

should be liable to the fine, if we instruct as the officers of

Dartmouth College, relinquishing, however, the college buildings, the

library, apparatus, etc."

The Faculty of the college issued the following:

"ADDRESS OF THE EXECUTIVE OFFICERS OF DARTMOUTH COLLEGE TO THE PUBLIC.

"As the undersigned, after the most serious and mature consideration,

have determined to retain the offices which they received by the

appointment of the Trustees of Dartmouth College, and not voluntarily

to surrender, at present, any property committed to them, nor to

relinquish any privileges pertaining to their offices, they believe it

to be a duty, which they owe to the public no less than to themselves,

to make an explicit declaration of the principles by which they are

governed.

"They begin by stating the two following positions, as maxims of

political morality, which they deem incontrovertible:

"1. It is wrong, under any form of government, for a citizen or

subject to refuse compliance with the will of the sovereign power,

when that will is fully expressed, except in cases where the rights of

conscience are invaded, or where oppression is practiced to such an

extreme degree that the great ends of civil government are defeated or

highly endangered.

"2. Under a free government, where the sovereignty is exercised by

several distinct branches, whose respective powers are created and

defined by written constitutions, cases may arise in which it will be

the duty of the citizen to delay conforming to the ordinances of one

branch until the other branches shall have had opportunity to act. If,

for example, the legislative branch should transcend its legitimate

power, and assume to perform certain acts which the Constitution had

assigned to the province of the judicial branch, a citizen,

injuriously affected by those acts, might be bound, not indeed

forcibly to resist them, but, in the manner pointed out by law, to

make an appeal to the judiciary and to await its decision.

"The undersigned deem it unnecessary, in this place, to detail the

provisions of the acts of the Honorable Legislature, passed in June

and December, A. D. 1816, relating to this institution. Those acts are

before the public and are generally understood.

"The Board of Trustees, as constituted by the Charter of 1769, at

their annual meeting in August last, took into consideration the act

of June, and adopted a resolution, 'not to accept its provisions.' In

the preamble to this resolution, we find a paragraph in the words

following: 'They (the Trustees) find the law fully settled and

recognized in almost every case which has arisen, wherein a

corporation or any member or officer is a party, that no man or body

of men is bound to accept, or act under, any grant or gift of

corporate powers and privileges; and that no existing corporation is

bound to accept, but may decline or refuse to accept any act or grant

conferring additional powers or privileges, or making any restriction

or limitation of those they already possess; and in case a grant is

made to individuals or to a corporation without application, it is to

be regarded not as an act obligatory or binding upon them, but as an

offer or proposition to confer such powers and privileges, or the

expression of a desire to have them accept such restrictions, which

they are at liberty to accept or reject.'

"If the doctrine contained in this paragraph be correct, and of its

correctness the undersigned, after ascertaining the opinion of eminent

jurists in most of the New England States, entertain no doubt, the act

of June, and of course the acts of December, have become inoperative,

in consequence of the nonacceptance of them by the Charter Trustees,

and the provisions of these acts are not binding upon the corporation

or its officers. We take the liberty to add, that, in our opinion, the

reasons assigned by the Trustees in the preamble before mentioned for

not accepting the act of June, are very important and amply

sufficient. Indeed, it has ever appeared to us, that the changes

proposed to be introduced into the charter by the acts in question,

would have proved highly inauspicious to the welfare of this

institution, and ultimately injurious to the interests of literature

throughout our country.

"The Trustees appointed agreeably to the provisions of the act of June

have, however, thought proper to organize, without the concurrence of

the Charter Trustees, and to perform numerous decisive acts.

"At a meeting in Concord on the fourth instant, they brought several

specifications of charges against the undersigned; and at an adjourned

meeting, holden on the twenty-second instant, they proceeded to

displace, discharge, and remove them from their respective offices in

Dartmouth University. A similar procedure was adopted against four of

the Trustees acting under the Charter.

"Unless we greatly mistake, in the view already expressed of the act

of June, the votes of the university Trustees, removing us from

office, are wholly unauthorized and destitute of any legal effect; and

we are still, as we have uniformly claimed to be, officers of

Dartmouth College under the charter of 1769.

"The Charter Trustees having resolved to assert their corporate

rights, and having, for this purpose, recently commenced a suit

against their late Secretary and Treasurer, in the issue of which it

is expected the question between them and their competitors will be

finally settled, the undersigned, being united with them in opinion,

in principle, and in feeling, cannot consent to abandon them, or to

perform any act which may prejudice their claims, while this suit is

pending. They must therefore proceed, as officers of Dartmouth

College, to discharge their prescribed duties. They are sensible of

their obligation to render submission to the laws, and their first

inquiry, in the case before them, has been, What is law? The result is

a full conviction in their own minds, that the course they have

concluded to adopt is strictly legal, and that no other course would

be consistent with their duty. If they err, their error will shortly

be corrected by the decision of our highest judicial tribunals; and

with this decision they will readily comply. In the meantime, while

the appeal is made to the laws of their country, and to the

constitutions of this State and of the United States, which are the

supreme law, they trust that none of their fellow-citizens will have

the unkindness to charge them with a want of respect to the government

under which they live. As soon as the will of the government shall be

fairly expressed, they will render to it a prompt obedience.

"The undersigned are placed in a situation singularly difficult and

highly responsible. To them it seems to be allotted in Divine

Providence, to perform a part which, in its consequences, may deeply

affect the interests not only of this institution, but of all similar

institutions in this country. And although they are fully conscious of

their own inability to perform this part in a manner worthy of its

importance, yet they are firmly resolved, relying on divine

assistance, not to shrink from any duty, or any danger, which it may

involve.

"The penal act of December they cannot but regard as unnecessarily

severe; nor do they see what purpose it was calculated to answer,

except to influence them, by the prospect of embarrassing suits, to an

abandonment of their trust. They are aware that men may be found

disposed to multiply prosecutions against them, and to despoil them of

the little property they possess; but they believe themselves called

in Providence not to shun this hazard, as they cannot reconcile it

with their obligation to the institution under their care, to

relinquish the places they occupy, until it shall be ascertained that

they cannot rightfully retain them.

"As the university Trustees have expressed a great regard for the

laws, the undersigned have a right to expect that neither they, or any

agents appointed by them, will resort to illegal measures to seize on

the college buildings and property. Should such measures unhappily be

adopted, the undersigned will make no forcible resistance, it not

being a part of their policy to repel violence by violence. They will

quietly withdraw where they cannot peaceably retain possession, and,

with the best accommodations they can procure, will continue to

instruct the classes committed to them, until the prevalence of other

counsels shall procure a repeal of the injurious acts, or until the

decision of the law shall convince them of their error, or restore

them to their rights.

"Francis Brown,

"Ebenezer Adams,

"Roswell Shurtleff.

"February 28, 1817."

* * * * *

The above gentlemen constituted the permanent Faculty at this period.

In view of all the circumstances they determined to surrender the

college buildings and library to their opponents, and the Trustees

determined to test their rights before the courts, the action being

brought against the former Treasurer, who adhered to the "University"

party.

"The action: 'The Trustees of Dartmouth College _v._ William H.

Woodward,' was commenced in the Court of Common Pleas, Grafton County,

State of New Hampshire, February Term, 1817. The declaration was

trover for the books of record, original charter, common seal, and

other corporate property of the college. The conversion was alleged

to have been made on the 7th day of October, 1816. The proper pleas

were filed, and by consent the cause was carried directly to the

Superior Court of New Hampshire, by appeal, and entered at the May

Term, 1817. The general issue was pleaded by the defendant, and joined

by the plaintiffs. The facts in the case were then agreed upon by the

parties, and drawn up in the form of a special verdict, reciting the

Charter of the college and the acts of the Legislature of the State,

passed June and December, 1816, by which the said corporation of

Dartmouth College was enlarged and improved, and the said Charter

amended.

"The question made in the case was, whether those acts of the

Legislature were valid and binding upon the corporation, without their

acceptance or assent, and not repugnant to the Constitution of the

United States. If so, the verdict found for the defendants; otherwise

it found for the plaintiffs.

"The cause was continued to the September Term of the court in

Rockingham County, where it was argued; and at the November term of

the same year, in Grafton County, the opinion of the court was

delivered by Chief Justice Richardson, sustaining the validity and

constitutionality of the acts of the Legislature; and judgment was

accordingly entered for the defendant on the special verdict.

"Thereupon a writ of error was sued out by the original plaintiffs, to

remove the cause to the Supreme Court of the United States, where it

was entered at the term of the court holden at Washington on the first

Monday of February, 1818.

"The cause came on for argument on the 10th day of March 1818, before

all the judges. It was argued by Mr. Webster and Mr. Hopkinson, for

the plaintiffs in error, and by Mr. Holmes and the Attorney-general

(Wirt), for the defendant in error.

"At the term of the court holden in February, 1819, the opinion of the

judges was delivered by Chief Justice Marshall, declaring the acts of

the Legislature unconstitutional and invalid, and reversing the

judgment of the State court. The court, with the exception of Mr.

Justice Duvall, were unanimous."

The arguments in the New Hampshire court by Messrs. Mason, Smith, and

Webster for the college, and Messrs. Sullivan and Bartlett for Mr.

Woodward; the decision of that court, and the cause in the Supreme

Court of the United States, are an important part of our country's

judicial history. The result was logically based upon prior decisions

of the Supreme Court. We invite special attention to one point in Mr.

Webster's argument. If, in the lapse of time, under the strong light

of careful research or elaborate criticism, all the other brilliant

colors of this remarkable fabric shall fade or vanish, this central

figure will remain forever, to illustrate the relations of the college

to the State.

"The State of Vermont is a principal donor to Dartmouth College. The

lands given lie in that State. This appears in the special verdict. Is

Vermont to be considered as having intended a gift to the State of New

Hampshire in this case, as, it has been said, is to be the reasonable

construction of all donations to the college? The Legislature of New

Hampshire affects to represent the public, and therefore claims a

right to control all property destined to public use. What hinders

Vermont from considering herself equally the representative of the

public, and from resuming her grants, at her own pleasure? Her right

to do so is less doubtful than the power of New Hampshire to pass the

laws in question."

Thus closed one of the most important contests in the history of

American jurisprudence.

Law, politics, literature, and religion combined to make it a subject

of national concern. The decision gave to a large class of chartered

institutions a security never enjoyed before. The lapse of more than

half a century enables us to consider the question calmly and

candidly, uninfluenced by interest, prejudice, or passion.

The case was attended with serious embarrassments. Neither counsel nor

court had thorough knowledge of the history of the school and the

college, and the relations of each to the other. Had they possessed

this knowledge, the line of argument in some respects would have been

very different, although perhaps with the same general results. More

than this, there were no precedents. Indeed, at that early day

questions of constitutional law had occupied very little of the

attention of the American courts.

There would have been embarrassment had the British Parliament, before

our Revolution, assumed the right to alter materially the Charter of

the college. Changes in chartered institutions in America, especially,

by that body, although within the scope of its power, were usually met

with the sternest protests. After the Revolution, there were wide

differences of opinion as to who had power over charters granted

antecedent to that event. In the case of Dartmouth's Charter any one

of several opinions might have found plausible support. To determine

whether it was a fit matter for State or national legislation, or

judicial control, we must revert to the history of the Charter. There

we find that it was the unvarying purpose of the founder, adhered to

through a long period of severe and persistent effort, to obtain a

Charter which would enable him to locate his school or schools in any

of the American colonies. He was determined to be as free as possible

from local obligations and local control. There can be no doubt that

in securing the Charter of the college he believed that he had

accomplished a similar purpose. The Charter appointed as a majority of

the first Board of Trustees residents in Connecticut,--making it for

the time being, by design of the founder, for good and sufficient

reasons, in a sense, a Connecticut institution,--with a provision that

after the lapse of a brief period a majority of the Board should be

residents in New Hampshire. In writing upon this subject to a business

correspondent, in June, 1777, President Wheelock says, referring to a

third party: "Let him see how amply this incorporation is endowed, and

how independent it is made of this government or any other

incorporation," and adds that "a matter of controversy" relating to

the township granted by the king to the college nearly at the same

time with the Charter, "can be decided by no judicatory but supreme,

or one equal to that which incorporated it, _i. e._, the Continental

Congress."

The views of no one person will be received by all, as conclusive on

a subject of so much importance. But certainly, Eleazar Wheelock had a

right to construe the provisions of an instrument which in almost

every line bore his impress, never possessed by any other individual.

Had John Wheelock presented his grievances to the National

Legislature,--only in a limited sense, it is true, if at all, the

successor of that king, whose grant of Landaff, in addition to the

College Charter, made him, in a sense, according to Coke, the founder

of the college,--he might, in all probability, have obtained what he

desired in a peaceful manner, although an important judicial decision

might never have occupied its present place in American law.

The History of Dartmouth College · 第 12 / 31 章