ARGUMENT BEFORE THE SUPREME COURT OF THE UNITED STATES, AT WASHINGTON,
ON THE 10TH OF MARCH, 1818.
[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, in favor of 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 following was the argument of Mr. Webster for the plaintiffs in
error.]
The general question is, whether the acts of the legislature of New
Hampshire of the 27th of June, and of the 18th and 26th of December,
1816, are valid and binding on the plaintiffs, _without their acceptance
or assent_.
The charter of 1769 created and established a corporation, to consist of
twelve persons, and no more; to be called the "Trustees of Dartmouth
College." The preamble to the charter recites, that it is granted on the
application and request of the Rev. Eleazer Wheelock: That Dr. Wheelock,
about the year 1754, established a charity school, at his own expense,
and on his own estate and plantation: That for several years, through
the assistance of well-disposed persons in America, granted at his
solicitation, he had clothed, maintained, and educated a number of
native Indians, and employed them afterwards as missionaries and
schoolmasters among the savage tribes: That, his design promising to be
useful, he had constituted the Rev. Mr. Whitaker to be his attorney,
with power to solicit contributions, in England, for the further
extension and carrying on of his undertaking; and that he had requested
the Earl of Dartmouth, Baron Smith, Mr. Thornton, and other gentlemen,
to receive such sums as might be contributed, in England, towards
supporting his school, and to be trustees thereof, for his charity;
which these persons had agreed to do: That thereupon Dr. Wheelock had
executed to them a deed of trust, in pursuance of such agreement between
him and them, and, for divers good reasons, had referred it to these
persons to determine the place in which the school should be finally
established: And, to enable them to form a proper decision on this
subject, had laid before them the several offers which had been made to
him by the several governments in America, in order to induce him to
settle and establish his school within the limits of such governments
for their own emolument, and the increase of learning in their
respective places, as well as for the furtherance of his general
original design: And inasmuch as a number of the proprietors of lands in
New Hampshire, animated by the example of the Governor himself and
others, and in consideration that, without any impediment to its
original design, the school might be enlarged and improved, to promote
learning among the English, and to supply ministers to the people of
that Province, had promised large tracts of land, provided the school
should be established in that Province, the persons before mentioned,
having weighed the reasons in favor of the several places proposed, had
given the preference to this Province, and these offers: That Dr.
Wheelock therefore represented the necessity of a legal incorporation,
and proposed that certain gentlemen in America, whom he had already
named and appointed in his will to be trustees of his charity after his
decease, should compose the corporation. Upon this recital, and in
consideration of the laudable original design of Dr. Wheelock, and
willing that the best means of education be established in New
Hampshire, for the benefit of the Province, the king granted the
charter, by the advice of his Provincial Council.
The substance of the facts thus recited is, that Dr. Wheelock had
founded a charity, on funds owned and procured by himself; that he was
at that time the sole dispenser and sole administrator, as well as the
legal owner, of these funds; that he had made his will, devising this
property in trust, to continue the existence and uses of the school, and
appointed trustees; that, in this state of things, he had been invited
to fix his school permanently in New Hampshire, and to extend the design
of it to the education of the youth of that Province; that before he
removed his school, or accepted this invitation, which his friends in
England had advised him to accept, he applied for a charter, to be
granted, not to whomsoever the king or government of the Province should
please, but to such persons as he named and appointed, namely, the
persons whom he had already appointed to be the future trustees of his
charity by his will.
The charter, or letters patent, then proceed to create such a
corporation, and to appoint twelve persons to constitute it, by the name
of the "Trustees of Dartmouth College"; to have perpetual existence as
such corporation, and with power to hold and dispose of lands and goods,
for the use of the college, with all the ordinary powers of
corporations. They are in their discretion to apply the funds and
property of the college to the support of the president, tutors,
ministers, and other officers of the college, and such missionaries and
schoolmasters as they may see fit to employ among the Indians. There are
to be twelve trustees for ever, _and no more_; and they are to have the
right of filling vacancies occurring in their own body. The Rev. Mr.
Wheelock is declared to be the founder of the college, and is, by the
charter, appointed first president, with power to appoint a successor by
his last will. All proper powers of government, superintendence, and
visitation are vested in the trustees. They are to appoint and remove
all officers at their discretion; to fix their salaries, and assign
their duties; and to make all ordinances, orders, and laws for the
government of the students. To the end that the persons who had acted as
depositaries of the contributions in England, and who had also been
contributors themselves, might be satisfied of the good use of their
contributions, the president was annually, or when required, to transmit
to them an account of the progress of the institution and the
disbursements of its funds, so long as they should continue to act in
that trust. These letters patent are to be good and effectual, in law,
_against the king, his heirs and successors for ever_, without further
grant or confirmation; and the trustees are to hold all and singular
these privileges, advantages, liberties, and immunities to them and to
their successors for ever.
No funds are given to the college by this charter. A corporate existence
and capacity are given to the trustees, with the privileges and
immunities which have been mentioned, to enable the founder and his
associates the better to manage the funds which they themselves had
contributed, and such others as they might afterwards obtain.
After the institution thus created and constituted had existed,
uninterruptedly and usefully, nearly fifty years, the legislature of New
Hampshire passed the acts in question.
The first act makes the twelve trustees under the charter, and nine
other individuals, to be appointed by the Governor and Council, a
corporation, by a new name; and to this new corporation transfers all
the _property, rights, powers, liberties, and privileges_ of the old
corporation; with further power to establish new colleges and an
institute, and to apply all or any part of the funds to these purposes;
subject to the power and control of a board of twenty-five overseers, to
be appointed by the Governor and Council.
The second act makes further provisions for executing the objects of the
first, and the last act authorizes the defendant, the treasurer of the
plaintiffs, to retain and hold their property, against their will.
If these acts are valid, the old corporation is abolished, and a new one
created. The first act does, in fact, if it can have any effect, create
a new corporation, and transfer to it all the property and franchises of
the old. The two corporations are not the same in anything which
essentially belongs to the existence of a corporation. They have
different names, and different powers, rights, and duties. Their
organization is wholly different. The powers of the corporation are not
vested in the same, or similar hands. In one, the trustees are twelve,
and no more. In the other, they are twenty-one. In one, the power is in
a single board. In the other, it is divided between two boards. Although
the act professes to include the old trustees in the new corporation,
yet that was without their assent, and against their remonstrance; and
no person can be compelled to be a member of such a corporation against
his will. It was neither expected nor intended that they should be
members of the new corporation. The act itself treats the old
corporation as at an end, and, going on the ground that all its
functions have ceased, it provides for the first meeting and
organization of the new corporation. It expressly provides, also, that
the new corporation shall have and hold all the property of the old; a
provision which would be quite unnecessary upon any other ground, than
that the old corporation was dissolved. But if it could be contended
that the effect of these acts was not entirely to abolish the old
corporation, yet it is manifest that they impair and invade the rights,
property, and powers of the trustees under the charter, as a
corporation, and the legal rights, privileges, and immunities which
belong to them, as individual members of the corporation.
The twelve trustees were the _sole_ legal owners of all the property
acquired under the charter. By the acts, others are admitted, against
_their_ will, to be joint owners. The twelve individuals who are
trustees were possessed of all the franchises and immunities conferred
by the charter. By the acts, _nine_ other trustees and _twenty-five_
overseers are admitted, against their will, to divide these franchises
and immunities with them.
If, either as a corporation or as individuals, they have any legal
rights, this forcible intrusion of others violates those rights, as
manifestly as an entire and complete ouster and dispossession. These
acts alter the whole constitution of the corporation. They affect the
rights of the whole body as a corporation, and the rights of the
individuals who compose it. They revoke corporate powers and franchises.
They alienate and transfer the property of the college to others. By the
charter, the trustees had a right to fill vacancies in their own number.
This is now taken away. They were to consist of twelve, and, by express
provision, of no more. This is altered. They and their successors,
appointed by themselves, were for ever to hold the property. The
legislature has found successors for them, before their seats are
vacant. The powers and privileges which the twelve were to exercise
exclusively, are now to be exercised by others. By one of the acts, they
are subjected to heavy penalties if they exercise their offices, or any
of those powers and privileges granted them by charter, and which they
had exercised for fifty years. They are to be punished for not accepting
the new grant and taking its benefits. This, it must be confessed, is
rather a summary mode of settling a question of constitutional right.
Not only are new trustees forced into the corporation, but new trusts
and uses are created. The college is turned into a university. Power is
given to create new colleges, and, to authorize any diversion of the
funds which may be agreeable to the new boards, sufficient latitude is
given by the undefined power of establishing an institute. To these new
colleges, and this institute, the funds contributed by the founder, Dr.
Wheelock, and by the original donors, the Earl of Dartmouth and others,
are to be applied, in plain and manifest disregard of the uses to which
they were given.
The president, one of the old trustees, had a right to his office,
salary, and emoluments, subject to the twelve trustees alone. His title
to these is now changed, and he is made accountable to new masters. So
also all the professors and tutors. If the legislature can at pleasure
make these alterations and changes in the rights and privileges of the
plaintiffs, it may, with equal propriety, abolish these rights and
privileges altogether. The same power which can do any part of this work
can accomplish the whole. And, indeed, the argument on which these acts
have been hitherto defended goes altogether on the ground, that this is
such a corporation as the legislature may abolish at pleasure; and that
its members have no _rights, liberties, franchises, property, or
privileges_, which the legislature may not revoke, annul, alienate, or
transfer to others, whenever it sees fit.
It will be contended by the plaintiffs, that these acts are not valid
and binding on them without their assent,--
1. Because they are against common right, and the Constitution of New
Hampshire.