oj^a. '771 £ (i^ o 
 
 LO 
 
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 UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY
 
 71 W / 
 
 Walter a. McclUre
 
 p: 
 
 THE 
 
 DARTMOUTH COLLEGE 
 
 CAUSES 
 
 AND THE 
 
 SUPREME COURT OF THE UNITED STATES. 
 
 .f^*^ 
 
 By JOHN M. SHIRLEY. ^^^^^ 
 
 ST. LOUIS: 
 REVIEW PUBLISHING CO. 
 
 1895.
 
 6jA jm-c{ 
 
 fV'f^ 
 
 Entered according to Act of Congress, in the year 1879, by 
 
 JOHN M. SHIRLEY, 
 In the Office of the Librarian of Congress, at Washington. 

 
 ^ 
 
 Mt aim has been to put the reader in the place of the great 
 actors in these controversies. These pages were penned in the 
 fierce gallopade of a busy life, within earshot, as it were, of 
 the paternal homes of the Websters and Bartletts, those of 
 Thomas W. Thompson, Worcester, and their compeers, within 
 the shadow of the lone mountain they loved so well, upon the 
 historic ground so often trodden by them, and in the midst of the 
 traditions relating to these causes and their origin. Besides those 
 referred to in text and notes, I am indebted to Jeremiah Smith, 
 late one of the justices of the Supreme Judicial Court of New 
 Hampshire, and son of the late Chief Justice Smith, for a mass 
 of valuable papers ; James Barrett, of the Supreme Court of 
 Vermont, for the use of copies of letters of Kent to Marsh, 
 Hopkinson to Marsh, and others to which no special reference 
 has been made ; Charles H. Bell, President of the New Hampshire 
 Historical Society ; and the late Robert Means Mason, for 
 verifying copies of the ' ' Harvey-Webster Papers ' ' and ' ' Mason 
 Papers;" Professor Edwin D. Sanborn, of Dartmouth College, 
 for Webster's original notes of the arguments at Exeter and 
 Washington, his MS. argument, the brief of Hopkinson as written 
 out for publication by Webster, and letters of Hopkinson and 
 President Brown to Webster ; the New Hampshire Historical 
 Society, for placing their treasures, and particularly the "Farrar 
 Papers," at my service ; and William H. Duncan, for the use of 
 the "Olcott Papers." 
 
 J. M. S. 
 
 AxX)OVER, N. H., Oct. 1, 1879.
 
 CHAPTER I. 
 
 THE CAUSES SUMMARIZED— AVTEBSTER'S REASONS FOR BRING- 
 ING SUITS IN THE FEDERAL COURTS — CHANGES IN THE 
 CHxlRTER PROPOSED BY TRUSTEES AND OTHERS — EFFECT 
 OF THE DECISION— THE SUPREME COURT OF THE UNITED 
 STATES. 
 
 There were five civil causes. Four were brought to test 
 the validity of the act of the Legislature of New Hamp- 
 shire of June 27, 1816, "to amend the charter, and enlarge 
 and improve the corporation of Dartmouth College," and 
 the supplementary acts of December 18 and 26, 1816. 
 
 The College was located upon the Connecticut Eiver, at 
 Hanover, in the county of Grafton. Haverhill on the Con- 
 necticut, and Plymouth on the Pemigewasset, were then, as 
 now, the half shire-towns of that county. The Court of 
 Common Pleas sat at Haverhill on February 25, and at 
 Plymouth on September 9, 1817 ; and the Superior Court 
 sat at the same places respectively on May 20 and Novem- 
 ber 4, 1817. 
 
 The first action was " trespass on the case," brought by 
 "The Trustees of Dartmouth College," in the Common 
 Pleas, against William H. Woodward, chief justice of that 
 court, for converting, etc., on October 7, 1816, "divers 
 books & records in writing, containing the doings & trans- 
 actions of sd. trustees from the time of their first meeting 
 as a corporation until sd. seventh day of October, & also 
 of the orio^inal charter of sd. college and the common seal 
 of sd. college, & also of all the books of account containing 
 pharges in favor of sd. trustees, & all the leases, bonds, notes 
 & other assurances in writing," etc. The mandate was, to 
 attach the defendant's goods to the value of $50,000, " and 
 
 (1)
 
 DARTMOUTH COLLEGE CAUSES. 
 
 for want thereof," to arrest his body. The writ was dated 
 February 8, and served February 10, 1817, by "attaching 
 a chair," " valued at one dollar," and giving <' him a sum- 
 mons for his appearance at court." The case was entered 
 at the February term, 1817. 
 
 The defendant filed the formal plea of "not guilty," 
 " reserving liberty to waive this plea & plead anew, as well 
 in abatement as in bar, at the Superior Court." The plain- 
 tiffs, " agreeing to the reservation aforesaid, & reserving lib- 
 erty to waive this replication & reply anew at the Superior 
 Court," replied "that the plea aforesaid, in manner & 
 form aforesaid pleaded, & the matters therein contained, are 
 not sufficient in law to bar the plfs.," etc., and prayed 
 "judgment for their damages and costs." 
 
 The cause could not properly be tried before the defend- 
 ant, and these formal pleadings were filed by an arrange- 
 ment between the counsel, for the purpose of taking the 
 cause directly to the highest court of the State. Accord- 
 ingly it was entered at the May term, 1817, of the Supe- 
 rior Court. The plaintiffs amended their writ by striking 
 out the declaration and substituting a new one. It was 
 twice argued. The report states that " the cause was sub- 
 mitted to the decision of the court upon a statement of 
 facts, * * * and it was agreed that if either party 
 should desire it, the statement of facts should be turned into 
 a special verdict, in order that the case might be carried to 
 the Supreme Court of the United States." (1 N. H. 111.) 
 The precise facts will appear hereafter. 
 
 This case is reported in 1 N. H. 111-138, and in 1 Wheat. 
 518-715. (4 Curtis's Dec. 4G3-534.) The case in both 
 courts is also reported at length in a volume of about four 
 hundred pages, by Timothy Farrar, the son of one of the 
 plaintiffs, the former partner of Mr. Webster, and one 
 of the counsel in the cause, from whose report that of 
 Wheaton was taken. 
 
 The United States Cu-cuit Court, in which three of these
 
 THE CIVIL SUITS. 3 
 
 cases were brought, sat in the extreme south-eastern corner 
 of the State, at Portsmouth and Exeter, on May 1 and 
 October 1, 1818, respectivel}^ 
 
 The second was a suit in ejectment (for $3,000), brought 
 in this court by Horace Hatch, of Norwich, Vermont, against 
 Richard Lang, of Hanover, for a lot of hmd about one mile 
 east of the College. This writ was dated March 9, 1818. 
 In form, a special verdict about twenty pages in length 
 was rendered at the October term, 1818, and the case went, 
 upon a certificate of the division of opinion between the 
 judges, to the Supreme Court of the United States. 
 
 The third was a similar suit of ejectment in the same 
 court (for $2,000), brought by David Pierce, of Wood- 
 stock, Vermont, ex dem. Job Lyman, on March 27, 1818, 
 against Benjamin Gilbert, of Hanover. The tmstees of 
 the University were vouched in at the Oafcober term, 1818, 
 and made defendants, and the cause went to the Supreme 
 Court on a similar verdict. 
 
 The fourth was a similar suit (for $3,000), brought by 
 Charles Marsh, also of Woodstock, one of the trustees, and 
 one of the plaintiffs in the first suit in the State court, 
 against William Allen ( afterwards the plaintiff in the Bow- 
 doin College case, and the son-in-law of Dr. John Wheelock, 
 the former president of the College and University), Henry 
 Hutchinson, and Aliimaz B. Simpson, on March 27, 1818, 
 in the same court, with a like result. 
 
 Mr. Mason advised the bringing of another suit, to test 
 the right to the libraries, etc., but the clerks fail to find 
 any trace of it upon the files of the courts. 
 
 The criminal prosecutions instituted in the name of the 
 State, which grew out of these troubles, were fruitless, and 
 seemingly had no influence upon the current of the others. 
 
 The fifth was instituted on September 23, 1819, by "Wil- 
 liam Allen, clerk, & Maria AVheelock, widoAV," "executors 
 of the last will & testament of John Wheelock," against
 
 4 DARTMOUTH COLLEGE CAUSES. 
 
 the College for $10,000, for the services, etc., of Wheelock 
 as president of the College. It was entered at the Novem- 
 ber term, 1819, of the Superior Court, at Plymouth. At 
 the May term, 1820, judgment was rendered for the plain- 
 tiifs for $7,886.41 damages, and for their costs. This case 
 was supposed to involve, upon one point, the same question 
 as the others. 
 
 The suits in the United States Circuit Court were insti- 
 tuted by the special direction of Mr. Webster. His reasons 
 were twofold. The first suit was not instituted by him, but 
 by Mills Olcott, of Hanover, secretary, etc., of the board 
 of trustees. Webster came into it "at the eleventh hour." 
 
 The writ of error in this case was brought as a " forlorn 
 hope." It raised but ' ' a single point," — whether the legis- 
 lative acts impaired the obligation of contracts. Upon the 
 whole case, Webster had but little faith in that point. 
 
 Webster was not a learned man, much less a learned 
 lawyer ; but he was a great man. A sort of half justice 
 has been done to his purely intellectual gifts ; a century 
 hence ample justice may be done them. Few gave him 
 credit for tact and management ; but no American equalled 
 him in his knowledge of men, and his power to overawe 
 and persuade judges as well as others. No skilled per- 
 former ever handled the keys of his instrument with any 
 thing like the consummate skill and art with which Webster, 
 when hard pressed, played upon the prejudices, passions, 
 and sympathies, as well as the understanding, of men. He 
 turned his knowledge of genealogy into a system of philoso- 
 phy. He knew Judge Marshall, his court, their prejudices, 
 and their antecedents. 
 
 His conviction was that Marshall would set aside these 
 acts, upon the ground taken by Mason in his argument at 
 Exeter, that they were " not within the general scope of leg- 
 islative power," if that point could be got before the court. 
 
 The first reason Mr. Webster confided to those who were
 
 WEBSTER HIS PURPOSE. & 
 
 close to his heart, as he afterwards did to Choate. We 
 copy the following letter verbatim : — 
 
 Boston, Dec. 8, 1817. 
 Charles Marshy Esq. 
 
 Dear Sir, — You are aware that in the college cause, the only 
 question that can be argued at Washington, is whether the recent 
 acts of the Legislature of N. Hampshire do not violate the Con- 
 stitution of the U. S. This point, tho. we trust a strong one, is 
 not perhaps stronger than that derived from the character of these 
 acts, compared with the Constitution of N. Hampshire. It has 
 occurred to me whether it would not be well to bring an action, 
 which should present both and all our points to the Supreme 
 Court. This could be done by bringing the action originally in 
 the Circuit Court. I am a good deal inclined to favor the propo- 
 sition of bringing such a suit. Altho. I now mention it only for 
 consideration. Suppose the trustees should sue for the Wheelock 
 lands in Vermont? Or suppose they should lease portions of the 
 N. Hampshire lands to a citizen in Vermont? In either of these 
 cases an action might be brought in the courts of U. S. in which 
 all the questions could be considered. I have suggested this idea 
 to Mr. Mason & Judge Smith (& nobody else). If they should 
 think the hint worth considering I shall probably hear from them, 
 and in that case I write you again. Such a suit would not of 
 course at all interfere with our present proceedings. 
 I am dear sir, with great respect, 
 
 Yours, 
 
 D. Webster. 
 
 This letter was sent, not to Marsh, but to Francis Brown, 
 president of the College, with a note thereon, saying, "I 
 have written the above for the consideration of yourself and 
 Mr. Marsh." 
 
 Webster, in his letter of December 8, 1817, to Judge 
 Smith, says : " It is our misfortune that our cause goes to 
 Washington on a single point. I wish we had it in such 
 shape as to raise all the other ol))ectioiis, as well as the 
 repugnancy of these acts to the Constitution of the United 
 States. I have been thinking whether it would not be advis- 
 able to bring a suit, if we can get such parties as will give
 
 I) DARTMOUTH COLLEGE CAUSES. 
 
 jurisdiction, in the Circuit Court of New Hampshire. I have 
 thought of this the more from hearing of sundry sayings of 
 a great personage. Suppose the corporation of Dartmouth 
 College should lease to some man of Vermont {e.g., C. 
 Marsh) one of their New Hampshire farms, and that the 
 lessee should bring ejectment for it. Or suppose the trus- 
 tees of Dartmouth College should bring ejectment in the 
 Circuit Court for some of the Wheelock lands. In either of 
 these modes the whole question might get before the court 
 at Washington." (1 Webster's Priv. Cor. 267, 268.) In 
 his letter of the same date to Jeremiah Mason, Webster 
 says : "I am sorry our college cause goes to Washington 
 on one point only. What do you think of an action in some 
 court of the U. States that shall raise all the objections 
 to the act in question ? Such a suit could easily be brought ; 
 that is, jurisdiction could easily be given to the court of the 
 U. States by bringing in a Vermont party." In his let- 
 ter from Washington, of March 11, 1818, to Mr. Brown, 
 Webster says: "Yours of the 28th Feb. I received this 
 morning. I am glad a suit is to be brought. I am very 
 much inclined to think the court loill not give a judgment 
 this term. It is therefore most essential to have an action 
 in which all the questions arise. Pray therefore take care 
 that a 2)roper action be proper??/ commenced, and in the ear- 
 liest season, in the Circuit Court of N. H." (Mason's 
 Papers.) In his letter to Mr. Mason, of March 22, 
 1818, Webster says: "I believe it is fully exi^ected that 
 a case raising the question in the amplest form will be 
 presented at the Circuit Court. I have given some reason 
 to expect this, and, unless for good causes, should be mor- 
 tified if it were not so." (1 Webster's Priv. Cor. 278.) In 
 his letter to Mr. Brown, of March 30, 1818, he says : " 1 am 
 glad an action is l)rought, and hope it will come on regularly 
 at the May term." (1 Webster's Priv. Cor. 279.) In his 
 letter to Mason, of April 28, 1818, he says : " I saw Judge 
 Story as I came along. He is evidently expecting a case
 
 WEBSTER'S VIEWS. 7 
 
 which shall present all the questions. It is not of great con- 
 sequence whether the actions or action go up at this term, 
 except that it would give it an earlier standing on the docket 
 next winter. The question which we must raise in one of 
 these actions, is whether by the general principles of our gov- 
 ernments the State Leo-islatures be not restrained from 
 divesting vested rights. This, of course, independent of 
 the constitutional provision respecting contracts. On this 
 question I have great confidence in a decision on the right 
 side. This is the proposition with which you began your 
 argument at Exeter, and which I endeavored to state from 
 your minutes, at Washington. The particular provisions in 
 the New Hampshire Constitution no doubt strengthen this 
 general proposition in our case ; but, on general principles, 
 I am very confident the court at Washington would be with 
 us. If so, then nothing will remain but this : ' Are the pow- 
 ers, privileges, or authorities of the trustees under this char- 
 ter, rights within the meaning of the proposition? Are 
 they franchises, liberties, or privileges such as the law pro- 
 tects, or are they merely disinterested duties or ofiicial ser- 
 vices? 'j I cannot state this question very accurately, but 
 this is the general idea. If we get up one of these cases in 
 due form, we shall defeat our adversaries." (1 Webster's 
 Priv. Cor. 282, 283.) 
 
 It is to be observed that the last letter was written 
 nearly two months after Mr. Webster had made his. cele- 
 brated efibrt at Washington in Judge Woodward's case. 
 It shows most distinctly the ground upon which he relied, — 
 and that not the obligation clause. 
 
 The policy of legislative interference did not originate 
 with the acts in question, nor has it been confined to them. 
 Contrary to the almost universal understanding, based 
 mainly upon the argument put by counsel to intensify a 
 point, the necessity and propriety of amending this college 
 charter have been conceded by the leading trustees from a 
 very early period.
 
 O DARTMOUTH COLLEGE CAUSES. 
 
 John Wheelock came from Yale, was a student there, and 
 was familiar vnih the troubles of President Clap which 
 grew out of the attempt to secure the jDassage by the Legis- 
 lature of Connecticut, in 1763, of an act providing for the 
 government of Yale, and for the appointment of a " Com- 
 mission of Visitation," to rectify abuses in the College, or 
 report thereon to the General Assembly. In 1791, before 
 the troubles which resulted in the exclusion of Wheelock 
 from the board had arisen, its controlling minds, with 
 Wheelock and Olcott at their head, of their own accord, 
 adopted a plan by which the Senate and the House were to 
 have "some" share in the government of Dartmouth 
 College. 
 
 On February 5, 1789, the State granted to the College a 
 township eight miles square, with the following proviso : 
 
 " And be it further enacted, that the President and Council of 
 the State for the time being shall be, and they are hereby incor- 
 porated with the Trustees of said College, so far as that they shall 
 have a right to act with them, as one board, in regard to the 
 expenditures and applications of this grant & all others which 
 have been, or may hereafter be made by New Hampshire." 
 
 This grant was a substitute for tlie Landalf grant, wliich 
 had failed, and was duly accepted by the corporation. 
 
 The trustees, on June 5, 1805, addressed a memorial to 
 the Legislature, praying for " aid ; " setting forth that the 
 College was a matter of " common concern to the citizens " 
 of the State ; and that ' ' Your memorialists would with def- 
 erence suggest whether, as the Trustees, actuated by no 
 personal interest, consider themselves bound to attend to 
 the concerns of the Seminary only as it is an object of 
 public importance," etc. Whereupon the Legislature, on 
 June 15, 1805, granted them $900. 
 
 On June 18, 1807, tlie Legislature made a grant of a 
 township six miles square, with the proviso that the mem- 
 bers of the Council, president of the Senate, and the chief
 
 THE POLICY OF INTERFERENCE. 9 
 
 justice of the highest court should be, "ex officio, members 
 of the Board of Trustees in respect to this and any future 
 grant to said College." 
 
 Threats that the legislative authority would be invoked 
 were apparently bandied about and openly discussed in the 
 board, from 1805, till it came in 181G. The charter created 
 the first Board of Trustees, made them the corporation, and 
 gave them and their successors the power of filling all vacan- 
 cies. It fixed their number, "forever," at "twelve and 
 no more," and made the board a species of " Council of 
 Ten." 
 
 On June 19, 1816, while the act subsequently passed 
 was pending before the Legislature, Thompson, Paine, and 
 McFarland, three of the leading trustees, addressed to that 
 body a remonstrance against its passage, covering nearh' 
 eight pages in print. As might have been expected from 
 the ability of the draughtsman, the objections to the bill 
 were stated with great force and clearness. Among other 
 things, they said : — 
 
 "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 rea- 
 son 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, thej' 
 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 annuallj^ at the College, on the day preceding 
 commencement. They shall have an independent right to organize 
 their own bod}'^, and to form their own rules ; but as soon as the}' 
 shall have organized themselves, they shall give information 
 thereof to the trustees. Whenever any vote shall have been
 
 10 DARTMOUTH COLLEGE CAUSES. 
 
 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 quo- 
 rum 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 re- 
 quested 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 excel- 
 lency 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." 
 
 The truth is, the trustees were willing that almost any 
 amendment should be made to the charter, if so framed that 
 they could exclude Wheelock and his friends from any share 
 in the government of the College, and could retain posses- 
 sion for themselves and their friends. 
 
 Soon after the decision, in 1819, some of the trustees, who 
 so stoutly resisted all similar attempts on the part of the 
 State, proposed to make material changes in this " invio- 
 lable " contract, by creating a Board of Overseers, etc. ; and 
 these attempts have continued till the present day. It is 
 unnecessary to inquire now what would have become of the 
 corporation in the possible, but improbable, event of the 
 death of a quorum of the trustees, or their neglect or re- 
 fusal to choose successors. Under the charter, the alumni
 
 CHARTER CHANGES PROPOSED. 11 
 
 have no rights, but for years they have been knocking at 
 the door of the corporation, and asking recognition and 
 representation in the Board of Trustees. As they had given, 
 or were expected to contribute, liberally to the aid of their 
 alma mater, the demand was in itself reasonable. The 
 trustees were inclined to grant it, if it could be done. 
 There was the "rub." The "successors" of those who 
 denied all legislative power in the premises in 1816-17, 
 gravely considered the proposition to ask the Legislature 
 to amend the charter so that the alumni could elect a por- 
 tion of the trustees ; but they had not forgotten that a step 
 somewhat akin to this, proposed by Olcott and others, who 
 had denied the power in 1816-19, was under considera- 
 tion in 1821, nor that Daniel Webstei' (see his letter to his 
 brother Ezekiel, of June 17, 1821), probably having in 
 mind the argument of Parsons on that point, to which we 
 shall hereafter advert, advised against the scheme as one 
 " not without danger," and said : "It would be injurious, 
 I think, to propose to take this important alteration in the 
 charter, before the ground was well explored." 
 
 In his letter to Webster, of June 13, 1821, Mills Olcott 
 says: "Some of the friends of old D. College who are 
 here have thouo^ht that her real interest mis-ht be subserved 
 by some legislative arrangements at this time, whereby not 
 only State patronage, but State funds, should be obtained. 
 They have thought of a board of overseers, say of 20, — 
 to include the president of the Senate, the speaker of the 
 House, the others to be appointed by the Governer & Coun- 
 cil, — to have a veto upon the appointment, &c., of the 
 trustees, & afterwards fill up their own vacancies them- 
 selves, & to be somewhat on the footing of Caml^ridge. 
 A tax is expected to be raised for the State treasury this 
 session from banks, & from this fund have say $5,000 
 annually for ten years appropriated for D. C. There is no 
 real college man in the Legis., except Bro. Ez. & my hum-
 
 12 DAETMOUTH COLLEGE CAUSES. 
 
 ble self, & we cannot have the benefit of consulting with 
 trustees. 
 
 ' ' I therefore take the liberty to ask your advice as to 
 the policy of attempting this or any thing of the kind, more 
 especially of the best way to bring Mason's giant abilities 
 & influence into hearty & strenuous exercise. He can do 
 here ( as he can almost everywhere ) what he chooses to set 
 himself about in earnest. He has been consulted, & I be- 
 lieve is sincerely well disposed ; but unless he is the prime 
 mover, so that it acquires its momentum from him in the 
 first instance, I should hardly expect success in efiecting any 
 thing. Some influential republicans profess to be pleas' d 
 with a reconciliation, though it has only been whispered to 
 a few. 
 
 " Will you take the trouble to give me your views of 
 what is advisable on this subject as early as may be. You 
 may rely on its being most strictly confidential, if you 
 wish it." 
 
 This letter was written from Concord, while the Legisla- 
 ture was in session, Olcott being a member of the House 
 from Hanover, and Ezekiel Webster, who was as gifted in 
 his way as his famous brother, representing Boscawen, as 
 he did for many years 
 
 Webster, in his reply, writing from Boston, under date 
 of June 17, 1821, says : " I wish I had more hope of good 
 than I have to the'College from the Legislature. Of course 
 you know best the feeling on such subjects at present exist- 
 ing, but for myself I do not believe the College could get a 
 dollar from the Genl. Court. They would be very likely to 
 accept the proposition to appoint overseers, but as to the 
 money part of the bargain I do not think they would give 
 a cent. Besides, I do not think the present a favorable 
 moment to create a board of overseers by executive appoint- 
 ment, with power afterwards of filling their own vacancies. 
 It is easy to see what sort of men would be first appointed.
 
 OLCOTT MASOX THE WEBSTEllS. 13 
 
 & what sort of men they would perpetuate. All would be 
 political & nothing literary. My own impression is, that if 
 the College must die, it is better that it should die a natural 
 death. A board of overseers, such as would probably be 
 appointed, would negative every important nomiiiation of the 
 trustees. Of this I have no sort of doubt. There are rea- 
 sons not applicable to D. College, &, to such a board as you 
 would create, which alone prevented elsewhere the utmost 
 embarrassment. 
 
 " I have given my opinion, as 3^ou request, & l^eg you to 
 treat it as entirely confidential. I have no room to state 
 reasons at large. At any rate, I should not think it expe- 
 dient to move in the matter without much circumspection, 
 & a previously arranged plan, which should have reed, 
 the approbation of the trustees. Is there any reliance to be 
 placed in the quarter from which the first appointments 
 would proceed ? My own judgment & opinion do not answer 
 that question favorably. 
 
 "I had hoped to be in Concord before you leave it, & 
 still intend so to be, but our Sup. Court is still in session 
 & may last too long for my purpose. Mr. Blake, with Mrs. 
 B. & George, are gone to Newport on a little excursion, 
 partly to attend the Circuit Court and partly for pleasure." 
 
 In this letter, probably Mr. Webster did not intend to 
 reflect upon his personal friend and client, the governor, but 
 upon other influences that might control the appointing 
 pov/er through the Council. 
 
 This project was recently abandoned as " too hazardous." 
 The proposition lately under consideration by the trustees 
 was, in substance, to adopt regulations whereby the alumni 
 should "nominate" a certain number of the trustees, with 
 the understandino* that the trustees should "confirm" that 
 "nomination," by going through the forms of an election. 
 It is understood that a majority of the trustees were in favor 
 of the plan stated.
 
 14 DARTMOUTH COLLEGE CAUSES. 
 
 The following, issued April 21, 1878, shows what steps 
 were ultimately taken : — 
 
 Nomination of Trustees by the Alumni of Dartmouth College. — 
 On the 12th of August, 1875, the trustees of Dartmouth College 
 voted to submit to the Association of Alumni the following plan : 
 
 I. On the occurrence of the next three vacancies in the Board 
 of Trustees, including one outside of New Hampshire, the 
 trustees will request the alumni to make nominations in the 
 following manner : — 
 
 [1.] Information of each vacancy shall be given by the sec- 
 retary, as soon as it occurs, to the secretary of the Alumni 
 Association, and he shall give timely notice to the alumni, in 
 such manner as the association shall determine, requesting the 
 graduates in course, of four years' standing, both of the academic 
 and scientific departments, to send to him, before the next meet- 
 ing of the board, a nomination under their own signature, of four 
 eligible candidates for said vacant place. And the secretary shall 
 state in said notice the limitations, if any, imposed by the charter, 
 as to the class or locality from which the vacant place is to be 
 filled. 
 
 [2.] The four names receiving the largest number of votes 
 shall be reported by the secretary of the alumni to the board. 
 While there are certain legal objections to any positive and formal 
 agreement on the subject, it is understood that ordinarily, and in 
 all probability, invai'iably some one of the persons nominated will 
 be elected to the vacant place. 
 
 [3.] When any of the places so filled shall become vacant, by 
 death or otherwise, it shall be refilled in the manner aforenamed. 
 
 II. [1.] If either the Association of the Alumni or the Board 
 of Trustees shall hereafter desire any modification of the arrange- 
 ment, it may be signified to the other party, and become the 
 subject of conference between them. 
 
 [2.] This arrangement may be terminated, by vote of either 
 the association or the board, if at any future time it shall be 
 deemed desirable by either. 
 
 The above plan was presented to the Alumni Association at 
 their meeting in June, 1876, and was unanimously adopted, and 
 the curators of the association were appointed a committee with
 
 LEGISLATIVE AUTHORITY. 15 
 
 powers to attend to any details, on the part of the association, 
 necessary to carry out the plan ; and the secretary of the associa- 
 tion duly certified said action to the Board of Trustees. 
 
 S. C. Bartlett, 
 
 President. 
 
 This arrangement has been carried into execution. It 
 is difficult to understand how trustees charged, as claimed, 
 in the most solemn manner with the execution of oreat 
 trusts, by the very instrument to which they owed their 
 own existence and their powers, could, of their own motion, 
 lawfully divert or annihilate the one, and change the legal 
 effect of the other. If one step like this can be taken, 
 another may ; and this " inviolable " charter would be vir- 
 tually abolished by the trustees. 
 
 The Legislature seemingly had some " color " of author- 
 ity for these enactments. Before and since the Revolution, 
 the legislative bodies in New Hampshire were its " General 
 Court." That court was accustomed to set aside fraudu- 
 lent conveyances, order specific performance, revive rules 
 of reference, blot out levies, cancel executions, open, annul, 
 and relieve against judgments, and grant new trials, and in 
 general to give relief where justice had not been done by the 
 ordinary legal tribunals. This was sometimes, though 
 rarely, done upon the ground that there was "no remedy 
 at common law." These powers were exercised, not as 
 a court of chancery, eo nomine, but subject to a few 
 theoretical restraints, upon the ground of legislative or par- 
 liamentary omnipotence. From 1692 to 1821, New Hamp- 
 shu-e had no court of chancery. In 1821, two years after 
 the final decision in this cause. Mason, one of the leading 
 counsel in it, as chairman of the committee on the judiciary, 
 reported a bill, which became a law, conferring chancer}'^ 
 powers in relation to trusts upon the highest court of the 
 State. 
 
 The act of June 19, 1817, granting a new trial to Dolly 
 Merrill, as administratrix of the estate of Benjamin Mer-
 
 16 DAETMOUTH COLLEGE CAUSES. 
 
 rill, for which a petition had been pending before the Legis- 
 lature for years, was carried by one of Mr. Webster's most 
 memorable efforts. Mason defended the constitutionality 
 of this act, which was before the court at the same time as 
 Trustees v. Wooodward. The positions necessarily taken 
 by Webster and Mason in these cases were, in some 
 respects, antagonistic. This act was set aside in Merrill v. 
 Sherburne (1 N. H. 199-217), upon the ground that " an 
 act of the Legislature awarding a new trial in an action 
 which has been decided in a court of law is an exercise of 
 judicial power. It is also in its operation retrospective ; 
 and, for these two reasons, is unconstitutional." 
 
 If, as Webster and Mason contended, the acts amending 
 the charter of the College were the exercise of a judicial and 
 not of a legislative power, it was doubly clear that the act 
 granting a new trial, which the one had carried through the 
 Le2:islature and the other defended before the court, was 
 unconstitutional. To this may be added the doubts, to call 
 them by their mildest name, of Judge Smith, and the 
 adverse opinion of Mason, to say nothing of that afterwards 
 given by Chancellor Kent. 
 
 The practical results of the final judgment in Trustees v. 
 Woodward exhibit in a strikins: liii'ht the short-sightedness 
 of men. That decision was invoked by one of the warring 
 factions in the Board of Trustees to dethrone another. It 
 made, what the parties to the charter and the "laws of 
 Eno^land " never did, a contract which no human external 
 power could ever modify or change. 
 
 Judge Marshall decided, in effect, that the Kevolution 
 blotted out the legal existence of the ' ' party of the first 
 part," — the fountain from which all its chartered blessings 
 flowed, — and put the State of New Hampshire in his place ; 
 that prior to the adoption of the Constitution of the United 
 States, the charter might lawfully have been so modified or 
 changed; that the most vital attribute of the "contract," 
 an inviolability as fixed as the laws of the jNIedes and Per-
 
 THE DECISION. 17 
 
 sians, inhered not in the hmg-uage used by the parties and 
 the recognized law at the time of its creation, but had been 
 injected into it, twenty years after it was made, by that Con- 
 stitution. 
 
 But the important question for the American people is 
 not whether the judgment against Judge Woodward could 
 liave been sustained upon other grounds, which the judges 
 of the Supreme Court could not consider without a violation 
 of the Constitution, the laws of the United States, and their 
 oaths, but whether the principle underlying that decision 
 is definite, tangible, and sound ; whether it covers the innu- 
 merable causes which have found shelter under the wings 
 of the opinions popularly supposed to have been delivered 
 when that decision was given ; and, in fact, whether the 
 countless and constantly increasing array of corporations 
 in this great country have more of sovereignty than the 
 power which gave them being. No questions which can 
 1)e raised involve such far-reaching consequences as these. 
 And their importance increases year by year, in a ratio 
 which has no parallel in the past, and can have none when 
 we have attained a population of from two to five hundred 
 millions. 
 
 The tide of events will force their discussion and compel 
 their determination. They must be brought in review. The 
 truth will be sought till found. It is best that this should 
 be done by judicial decision. The court, as now consti- 
 tuted, may not be able to settle them : if not, their suc- 
 cessors must ; or, if the republic endures, the people, in 
 the proper way, will. 
 
 The present judges are of varying, but, in general, of emi- 
 nently respectable attainments. Some of them are very 
 eminent in special departments ; but no fact is more pain- 
 fully apparent to those Avho have f-tudied closely the course 
 of that great tribunal, than that its decisions lack the unity 
 which marked them during the dictatorship of Marshall and 
 under the great triumvirate of the " old bench," — Tanev,
 
 16 DAKT.AIOUTII COLLEOE CAUSES. 
 
 Nelson, and Campbell. For years it has had no command- 
 ing spirit on its quarter-deck. It has lost its reckoning ; it 
 has been beating about in a storm ; it has relapsed into the 
 chaos of doubt and uncertainty which marked the earlier 
 years of its existence, when the politicians — or statesmen — 
 of that day bivouacked in the chief justiceship on their 
 march from one political position to another. 
 
 The territorial extent of the Union when that court was 
 created, as compared with the present, was but a "patch 
 upon the earth's surftice." The population has gone up 
 from four to more than forty millions, and the judicial busi- 
 ness has increased out of proportion to both. The country 
 has outgrown the court. Laying out of the case the mass 
 of causes originating in the District or Circuit Courts, which 
 may go to the Supreme Court for final determination, it is, 
 as to a most important class of questions, the court of last 
 resort for nearly fifty States and Territories. That the dis- 
 parity must increase year by year is inevitable. It was the 
 remark of Judge Curtis, one of the most eminent judges of 
 the Supreme Court, that no lawyer could be of much assist- 
 ance to a court unless he had grown up in the atmosphere 
 of the statutes and the practice of that jurisdiction. It is 
 simply impossible for the judges to have this knoAvledge of 
 the local law, which they are so often called upon to inter- 
 pret. The result of all this has been hasty, conflicting, and 
 ill-considered decisions and opinions, sometimes slipshod, 
 and wandering in darkness, while filled with learning. 
 
 Recruited at an early period in our history by the political 
 department of the government, and to a great extent from 
 political life, and hence to a certain degree fashioned by it, 
 the Supreme Court has betrayed in its acts the defects of 
 its organization. It has suffered from internal dissensions 
 and outside pressure. It has sometimes done the things 
 which it ought not to have done, and much oftener omitted 
 to do those things which it ouo;ht to have done. 
 
 The power of taxation is generally conceded to be one of
 
 THE SUPREME COLUT. 19 
 
 the primary attributes of sovereignty. If corrupt legisla- 
 tive bodies can irrevocably auction off this power to the 
 highest bidder by instalments, why not the whole, and at 
 once? If one of these attributes can be constitutionally 
 converted into merchandise under the legislative hammer, 
 why not others? Did the Constitution, under the clause, 
 "' no State shall * * * pass any * * * law impair- 
 ing the obligation of contracts," establish the doctrine of 
 State suicide, or grant the power to destroy the " founda- 
 tion idea of the government," or forever prohibit the States 
 from so amending their respective Constitutions as to confer 
 judicial power upon their legislative bodies?
 
 CHAPTEE 11. 
 
 ORIGIN AND HISTOEY OF MOOR'S INDIAN CHARITY-SCHOOL 
 IN CONNECTICUT — ATTEMPTS TO PROCURE A CHARTER 
 FOR IT — FUNDS COLLECTED FOR THE SAIVIE — REMOVAL TO 
 NEW HAMPSHIRE — THE SCHOOL AND COLLEGE DISTINCT — 
 COLLEGE CHARTER. 
 
 The Dartmouth College causes have a history. With Coke, 
 as briefly as we may, let us begin at their "fountains 
 to trace the streams." Sorely against the will of the set- 
 tlers, who numbered less than four thousand, the king, in 
 1680, created the province of New Hampshire, for the pur- 
 pose of enabling the roj^al favorites to plunder them of 
 the fruits of their lands, which they had reclaimed in spite 
 of the red man's scalping-knife and fagot. For years they 
 suffered severely from these proconsular robbers and their 
 agents ; but, at a later period, under the guidance of able 
 leaders, the province had far less occasion to complain of 
 the royal policy than man}'^ of her sister colonies, and often 
 received marked favors at the hands of the crown. Massa- 
 chusetts had long claimed dominion over the heart of the 
 province, by an alleged boundary-line running from "Endi- 
 cot's tree," "three miles due north of the crotch" of the 
 Merrimack River, through a point about four miles north 
 of Webster's birthplace, and due west to the South Sea. 
 But on April 9, 1740, the king decided against Massachu- 
 setts, and established the existing boundary-line, which was 
 supposed to extend to a point twenty miles east of the 
 Hudson River. Soon after, Benning Wentworth, governor 
 of New Hampshire, laid out and granted away one hun- 
 dred and thirty-eight towns, containing more than half a 
 milhon acres of land, west of the Connecticut River, in what 
 is now the State of Vermont, ending Avith Bennington, 
 
 (20)
 
 THE GRANTS WHEELOCK 0CC0:M MOOR . 2 I 
 
 named for himself. Dunmore, governor of New York, sul)- 
 sequently granted away five hundred and eleven thousand 
 nine hundred acres of the same lands. This brought on 
 the controversy between New York, New Hampshire, Ver- 
 mont, and the settlers in the valley, about the " New 
 Hampshire grants," which kept the settlers on both sides 
 of the river in a political ferment for years, and brought 
 t,he whole to the very verge of civil war. 
 
 In 1733, Eleazar Wheelock graduated at Yale, and in 
 1735 was ordained, and settled as the minister of the set- 
 ond (or north) society, in Lebanon, Connecticut, then called 
 "Lebanon Crank," and since about 1800 known as the 
 town of Columbia, where he remained till late in 1770. 
 His salary was nominally £140 ; l)ut some years he received 
 only about one-third of that, partly paid in provisions. 
 Finding his salary inadequate, he taught a few pupils at his 
 house. Wheelock was a man of powerful intellect, great 
 tact, energy, and intense religious zeal. He stood in the 
 van of the great relijnous awakenino- of 1740. 
 
 In December, 1743, Wheelock took Samson Occom, a 
 Mohegan Indian, into his family, where he remained for 
 five years. Occom proved to be an excellent scholar, of 
 rare ability, and soon became a "preacher of distmction." 
 
 From this humble origin sprang the Charity-School. On 
 July 17, 1755, Joshua Moor, a farmer of Mansfield, gave 
 by deed a house, shop, and about two acres of land "for 
 the Foundation, Use, and Support of a Charity-School, for 
 the Education of Indian Youth ; " and in consequence this 
 school was ever after called ' ' Moor' s Indian Charity-School . ' ' 
 
 William Smith, of New York, in his letter to Wheelock, 
 of August f), 1755, suggested to him that there was "no 
 incorporation." Soon after, Wheelock took steps to obtain 
 a " royal charter" for this school. He applied to Lord 
 Halifax. In his "Narrative," Wheelock says: — 
 
 " Sometime after those Boys came, [December 18, 1754] the 
 Affair appearing with an agreeable Aspect, it being then a Time of
 
 22 DARTMOUTH COLLEGE CAUSES. 
 
 profound Peace in this Country, I represented the Affair to Colonel 
 Elisha Williams, Esq.; late Rector of Yale-College, and to the 
 Rev'd Messi'rs Samuel Moseley of Windham, and Benjamin 
 Pomeroy of Hebron, and invited them to join me ; they readily 
 accepted the Invitation ; and a Gentleman learned in the Law sup- 
 posed there might be such an Incorporation among ourselves as 
 might fully answer our Purpose. And Mr. Joshua Moor, late of 
 Mansfield, deceased, appeared to give a small Tenement in this 
 Place, for the Foundation, Use and Support of a Charity-School, 
 for the Education of Indian Youth, «&c. But it pleased God to 
 tdke the Good Colonel from an unthankful World soon after the 
 Covenant was made and executed, and thus deprived us of the 
 Benefit of his singular Learning, Piety and Zeal in the Affair. 
 Notwithstanding, a Subscription was soon made of near £500 law- 
 ful Money, towards a Fund for the Support of it, at 6 per Cent. 
 But several Gentlemen of the Law, doubting of the Validity and 
 Sufficiency of such an Incorporation ; several steps were taken to 
 obtain the Royal Favour of a Charter, but none effectual." 
 
 The result is thus stated by Wheelock in his letter to Wil- 
 liam Smith, of 1760 : " We sent home some years ago for 
 the Royal favor of a charter. Lord Halifax approved the 
 design, but (to save expense) advised, instead of a char- 
 ter, the establishment of the school hy a law of Connecti- 
 cut Colony, and promised that when sent there it should 
 be ratified in council, which he supposed would be as 
 sufficient as any act there. Hereupon I attended our 
 Assembly in May, 1758, with a memorial. The jDrayer of 
 which was granted by the House of Representatives ; the 
 governor and council negatived it upon the ground that their 
 action would not be valid if ratified in England, heyond 
 this Colony, and that a corporation within a corporation 
 might be troublesome as Yale College had sometimes been. 
 I am since informed that the Earl of Dartmouth has prom- 
 ised, if the matter shall be put into a proper channel, to 
 undertake and go through with it at his own expense." 
 (See Smith's History of Dartmouth College, etc., 41.) 
 
 In May, 1764, "^Mieelock without avail petitioned the
 
 THE SCHOOL INCORPORATION. 23 
 
 Counecticut Assembly "to incorporate " six gentlemen of 
 that colony, including George Willys, of Hartford, and him- 
 self, as legal guardians of this school. AVhat he desired was 
 a charter that would enable him to locate in any of the 
 American colonies. 
 
 While the movements to secure a charter were going on, 
 subscription papers were circulated throughout the colonics, 
 commencing in 1755, and Avere numerously signed, by which 
 the subscribers promised to j^ay, etc., for the sole " use and 
 benefit" of this " school," " as soon as the school should = 
 become a body corporate," etc. 
 
 In December, 1765, Wheelock sent Occom to England and 
 Scotland to preach, and solicit funds for the school, where 
 he arrived early in 1766. He aroused great enthusiasm 
 among the clergy and nobility, and his mission was a suc- 
 cess. In 1766, the king gave £200 and the Earl of Dart- 
 mouth £50 for this school. Over £9,000 Avere collected in 
 England, and placed ni the hands of a board of London 
 trustees, of which the Earl of Dartmouth Avas the head, and 
 John Thornton, a rich merchant of London, treasurer and 
 one of the principal managers. Between £2,000 and £3,000 
 Ave re collected in Scotland, and called the Scotch fund, 
 which Avas deposited Avith the " Scotch Society for the Propa- 
 gation of Christian KnoAA^ledge," etc. As manager of the 
 school. Dr. Wheelock always accounted for his disburse- 
 ments to these trustees. Occom returned, haA^ing raised 
 about £12,000 in all. The Legislatures of Connecticut, 
 Massachusetts, and Ncav Hampshire also granted aid. 
 
 Wheelock had thus been instrumental in securino; lari^e con- 
 es o 
 
 tributious for this purpose in England and Scotland, as well 
 as America. 
 
 The foUoAsdng is from William Smith to Wheelock' s 
 
 agent : — 
 
 New York, 30 March, 1767. 
 
 Several questions proposed by Mr. Phelps relating to Mr. 
 Wheelock' s Indian School. 
 
 1st. Whicli will be most for the interest of the school, the
 
 24 DARTMOUTH COLLEGE CAUSES. 
 
 lodging of the money given to it in a bank at home, or the trans- 
 fer of it to America ? 
 
 Answer. Tlie preference must be given to that country where 
 it will produce most and be most safe. I am confident that it can 
 be let out in the province of New York for the legal interest of 
 seven per cent, and secui'ed by bonds and mortgages of persons, 
 and on lands worth ten times as much as the sums let, & that it may 
 be let out in large sums of one, two, or three thousand pounds 
 together. I suppose it will not raise in England above four per 
 cent. 
 
 2d Question. Ought the school and its funds to be in the hands 
 of a private trustee, suppose Mr. Wheelock, and he to appoint a 
 successor by his last will, or will it induce most to its interest to 
 have it incorporated by charter ? 
 
 Answer. Beyond all doubt it would be best to have a charter. 
 Incorporating a number of warm friends in America, near to each 
 other to direct and govern the school, and some reputable friends 
 in England for correspondence and protectors. This is the only 
 way to render the project permanent, to secure wisdom and 
 council equal to the work, to defend it against opposition, and to 
 encourage future donations ; but I refer to what I wrote upon this 
 head to Dr. Finley, who communicated my remarks to Mr. Whee- 
 lock, and also to the suggestions contained in my letter to Mr. 
 Wheelock last fall. I shall only add that a charter is more neces- 
 sary for such an institution in this country than it can be in 
 England. An incorporated body will not only acquire rights 
 maintainable by law in the courts of justice, but command the 
 favor of the officers of the government, who, without that sanc- 
 tion, may at such distances from the crown oppress the undertaking 
 a thousand ways and utterly destroy it. * * * 
 
 3d Question. By what method can a charter be obtained? 
 
 Ansiver. A petition should be profferred to his majesty, for a 
 mandamus to the governor and council, and all subordinate of- 
 ficers, to pass a charter according to a form annexed in hoc verba, 
 under the great seal of the province ; and at the same time a 
 standing ' instruction should be procured to the governor and 
 secretary for Indian Affairs, to aid, countenance and protect the 
 corporation in the execution of the powers and privileges granted 
 to' them by the charter, as they will answer to the * * * at 
 their peril.*
 
 LOCATION THE "FOUNDATION." 25 
 
 It is noticeable that the course pointed out was not taken 
 in New Hampshire, though the common process for many 
 years had been to induct appointees into office, and accom- 
 plish other special objects by mandamus. The Home Office 
 suggested" to Wheelock to go to the Legislature of Con- 
 necticut for his charter. No such suggestion was made m 
 relation to New Hampshire, nor was any such attempt made. 
 "Why should the Colonial Legislature of Connecticut be 
 deemed to have the jjower, and that of New Hampshire not? 
 
 After he ascertained that no incorporation could be had 
 from Connecticut, plans were set on foot to remove the 
 school to lands on the Mississippi, given to the officers of 
 the old French War ; to fix it in the Middle States ; to 
 remove it to All)any, New York ; to establish it in Spring- 
 field and other places in Massachusetts ; and to locate it at 
 Landaft', Bath, Haverhill, Piermont, Lyme, Orford, Hano- 
 ver, Lebanon, Cornish, Hinsdale, Canaan, Plymouth, Rum- 
 ney, Campton, and other towns in New Hampshire. Whee- 
 lock spent over two years in fixing upon a new location, and 
 in preparation for its removal ; but after repeated confer- 
 ences with the governor of New Hampshire and several of 
 its leading men, the " Indian Charity-School " was removed 
 to Hanover. 
 
 On July 20, 1768, Wheelock commissioned Ebenezer 
 Cleveland, and his son, Ralph Wheelock, to explore the 
 province with reference to the location, and, in effect, to 
 ascertain what grant, if any, would be made. In his report, 
 made in December, 1768, which describes the town of Lan- 
 daff, sets out its situation, and that the governor was ready 
 to make a grant, he says : " I waited upon His Excellency, 
 John Wentworth, Esq., Governor of New Hampshire. He 
 appeared very friendly to the design, promised to grant a 
 township six miles square to the use of the school, pro- 
 vided it should ])e fixed in that province, and that he would 
 use his influence that His Majesty should give the quit-rents 
 to the school, to be free from charge of fees, except from
 
 26 DARTMOUTH COLLEGE CAUSES. 
 
 surveying. ' ' ( Smith' s History of Dartmouth College, etc. , 
 35, 36.) Other things no doubt contributed materially; 
 but without this promise, upon which Wheelock relied, it is 
 safe to say that ' ' the school ' ' never would have been re- 
 moved to New Hampshire. 
 
 After Landaff had been occupied for some time, ques- 
 tions arose as to the validity of the judgment of forfeiture 
 entered up by Wentworth and his council without notice, 
 which preceded the grant, and the trustees, declining to enter 
 into litigation, lost the grant in 1787 ; but in 1789 the State 
 replaced it by that already referred to. 
 
 The rivalry between New Hampshire towns for the loca- 
 tion was intensely bitter. As late as 1770, the trustees in 
 New Hampshire instructed Wheelock to locate at Landaff, or 
 within a mile of it. Situated as he was with reference to 
 all, it became a matter of policy on the part of Wheelock 
 to transfer the formal responsibility of fixing the location to 
 the board of trust who held the foreign funds of the school 
 and were responsible for their " due application." Whee- 
 lock, in his " Narrative," says : — 
 
 "The determination of the site of this school now appeared to 
 be an affair so public and so important, and that in which so many 
 gentlemen of character were now interested, and therefore so 
 delicate, that I could not thhik it prudent to attempt it mj^self , but 
 to refer it wholly to the decision and determination of the honora- 
 ble trust in England, who had condescended to patronize the 
 institution by becoming sureties to the generous donors for the 
 due application of the monies collected in South Britain for the 
 only use and benefit of it ; and accordingly, I faithfully repre- 
 sented to them the case, and all the reasons which were offered in 
 favor of the respective places to which it was invited, in order 
 fully to enable them understandingly to give the preference, and 
 determined to be governed mj'self wholly by their determination 
 thereon. In consequence of which, for many weighty reasons, 
 they gave the preference to the western part of the province of 
 New Hampshire, on Connecticut river, and determined that to be 
 the place for it. ' '
 
 THE CHARTER. 27 
 
 Nothing can be clearer than that all this refers, not to a 
 college, but to the charity-school. 
 
 The negotiations for a charter between Wheelock and 
 Governor Wentworth were carried on through Wheelock' s 
 agents, and by correspondence. 
 
 For twelve years prior to this time, the clergy of the Con- 
 gri'eorationalist denomination of eastern and middle New 
 Hampshire had in vain sought to obtain a charter for an 
 academy or a college. They applied to Governor Benning 
 Wentworth for it. He was friendly to the Presbyterians, 
 but a member of the Church of England, and much attached 
 to its interests. In his grants of townships he reserved a 
 right for the benefit of his church. When the application 
 was made to him for a charter, he refused to grant it unless 
 the institution was put under the direction of the Bishop of 
 London. 
 
 Wheelock did not ask for a charter for a colleofe. He 
 
 o 
 
 made no formal petition or ' * application ' ' for a charter for 
 any thing. 
 
 The board of trust were opposed to any incorporation for 
 the school even. In his letter of April 7, 1769, to Dr. 
 Langdon, Wheelock says, referring to the board of trust : 
 " The afiair is very delicate, and as such must be conducted, 
 or it will disgust those who are the gentlemen, and overset 
 all. Their sentiments of an incorporation have been differ- 
 ing from mine. They have insisted that I should conduct 
 the whole affiiir without one, and that my successor should 
 be nominated and appointed by my will. Experience, they 
 think, has fully taught them that hy means of an incorpora- 
 tion, such designs become jobs, and are soon ruined thereby. 
 They choose to hold the moneys collected there in their own 
 hands for this purpose, and accordingly have publicly de- 
 clared their trust of the same under their hands and seals, 
 and have disposed of it, as their wisdom directed, for the 
 l)enefit of the school." (Smith's Historj'- of Dartmouth 
 College, etc.)
 
 28 DARTMOUTH COLLEGE CAUSES. 
 
 In June, 1769, Wheelock wrote to Wentworth : *' I have 
 been making some attempts to form a charter in which some 
 proper respect may be shown to those generous benefjictors 
 in England who condescended to patronize this school, and 
 I want to be informed whether you think it consistent to 
 make the trust in England a distinct corporation, with power 
 to hold real estate, &c., for the uses and purposes of this 
 school." 
 
 At least the postscript of the following letter is impor- 
 tant : — 
 
 Leban% Aug. 22, 1769. 
 Sir: — May it please y'' Excellency. A few days ago I rec'd 
 from the Hon'^' Trust in England their unanimous preference of 
 y"" Western part of y*" province for the site of my school. We 
 had just before been advised by y" public prints of your Excel- 
 Ienc3''s tour to Nova Scotia, which necessitates a delay of y'' whole 
 affair till you return, and my physician advises that I make trial 
 of a mineral spring near Albany for the recovery of my health, 
 which I design (D. V.) soon to attempt. As it is near the season 
 which favors my aim and y*" design, and which will likely be at 
 the expense of some weeks, by which means likely I shall not be 
 able to wait upon j'our excellency on your return, however I shall 
 appoint my son, or some suitable person or persons, in my name 
 to wait upon you, if you please, to know your determination on a 
 rough draft of a charter of incorporation for the academy which I 
 herewith transmit and humbly submit to your Excellency's correc- 
 tions. * * * And it becomes me to advise your excellency by 
 the earliest opportunity of the so interesting determination of the 
 Hon' Trust. * * * Considering how far the year has advanced, 
 and how much there is to be done in securing the donations gen- 
 erously made, to invite and encourage its settlement in your 
 Province (after you have made it capable of the disposal of them) 
 before I can with prudence or honor enter upon the performance 
 on my part, and when these steps are taken I shall make it the 
 object of my attention to prepare for y" removal of my family and 
 school by next June if possible, which I think I can have no ground 
 to expect unless the spot be fixed upon and all materials for build- 
 ing, &c., be provided this fall & winter, & a sufficient number of 
 laborers be ready to enter upon the work early in the spring.
 
 THE SCHOOL AND ACADEMY. 29 
 
 I find y* a great number of the best sort of inhabitants in 
 these parts are spirited, and much engaged to remove into that 
 country and settle with me, which strengthens my hope that the 
 affair will be owned of God, and be made eminently beneficial to 
 that new and wide country, and that I may live to enjoy a com- 
 fortable settlement there. 
 
 That your excellency may live long to bless a people already 
 happy under j'our mild and prudent administrations, and at last 
 receive a crown of righteousness as the reward of grace at the end 
 of your toil, is the earnest prayer of him who is with highest esteem 
 & respect. 
 
 May it please your Excellency, 
 
 Your most obedient and most humble servant, 
 
 Eleazar Wheelock. 
 
 P. S. — Sir, if you think proper to use the word "college" 
 instead of "academy," in the charter, I shall be well pleased 
 with it. 
 
 To his ExceWy Gov"^ Wentivorth. 
 
 Wheelock had been gathering funds for this school, by sub- 
 scription and otherwise, for at least fourteen years. So far 
 as appears, not a penny was subscribed or pledged after this 
 postscript was written, and before the granting of the char- 
 ter. Up to this time, he had never suggested to any authority 
 supposed to have power to incorporate, that he desired a 
 charter for a college or university. 
 
 Wheelock had many agents, but his principal ones in rela- 
 tion to the charter were his son-in-law, Phelps, and Rev. 
 Dr. AVhittaker. 
 
 The following correspondence clears up many things 
 which have not hitherto been understood. Governor Went- 
 worth, in his letter to Wheelock, of October 18, 1769, says : 
 *' Colonel Phelps has this morning show' d to me your let- 
 ter 5th Oct. You are sensible, Sir, of my earnest disposi- 
 tion to serve the public Charity under your care. My Con- 
 duct both here and in Europe testify for me. I wish my 
 private Abilities were more equal to support an enlarged 
 liberality, yet what is given is with a willing heart. I am
 
 30 DARTMOUTH COLLEGE CAUSES. 
 
 certain there must have been an important misunderstanding 
 of my proposal convey' d to you. Without entering into 
 the accident, I wish now to be explicit, and am sure that 
 you nor no other catholic Christian can object. As many 
 insinuations have been and are yet frequently transmitting 
 to England, to depreciate the reputation of the intended 
 College, insinuating that the benevolent Charity's will be 
 applied merely and exclusively to the advancement of secta- 
 ries and particular opinions, ^vith a fix'd view to discourage 
 the establish' d Church of England, it is not only important 
 but essential that such ideas should be exterminated, therefore 
 I propos'd to add the present Bishop of London by name to 
 the Trust at Home in England, solely without any other con- 
 nection than any other of the Geut^ mentioned in London ; 
 that thereby all the world may know our sincerity and uni- 
 versal good wishes to mankind ; at his demise the vacancy to 
 be filled up by selection, as of other members. This is so 
 open and candid that I think it cannot be a bugbear to any 
 man of common sense, nor objected to unless upon party 
 principles, incompatible with and dishonorable to our gener- 
 ous plan of Education and government propos'd, and am 
 therefore certain that in this light you will not only see, but 
 approve the nomination, which, it is my opinion, will be 
 cordially acceptable to the respectable trust at home, who I 
 am convinc'dwill at all times gladly accede to so respectable 
 a nomination, w^ must eminently tend in that country and 
 in this to evince the extensive principles of the Society. 
 The nomination of the three provincial Officers to be of the 
 active, influential conducting Trust in this country, I 
 strongly recommend, but do not insist upon. They will be 
 a natural defense, honor, and security to the institution, 
 which perhaps may be the more eligible as they can't be sup- 
 posed to be at any time other than the safest and most nat- 
 ural guardians of Education . However I shall not insist upon 
 them, yet would wish so well to the design as to be desirous 
 of its being avail' d of such an Iionorable patronage. That I
 
 wentworth's views. 31 
 
 did not mention any other than the Gov'" to be of the trust 
 can by no means be preclusive, neither did I so intend it. 
 The same reason would operate Equally against any part, 
 every part of the Charter \v^ you did not particularly men- 
 tion to me. It was indeed show'd on my side that the 
 Gov'" should be one. But by no reason or considerate sup- 
 position can it be thence infer" d, the only one ; for if so, 
 all those that are mentioned by you must also be contrary 
 to the plan — which I by no means suppose. In short, sir, 
 I entertain a high respect for the Institution as proposed to 
 me in England, and since in America. My promises I will 
 sacredly make good and exceed them, influenc'd by an 
 ardent desire to do right without discrimination of sects or 
 names. I shall at all times seek the welfare of the College, 
 the good of the remote part of the province, which you 
 intimate may (be in their opinion) crossed, upon the general 
 principles of Candor and rectitude, w^ will produce the just 
 stability, w^ you are politely pleased to attribute to me, 
 whatever may be the event, believe me Sir, I am hearty in 
 the cause, and doubt not, as we profess the same, that 
 exi3lanations of sentiment will unite our judgment ; at least I 
 promise you that however I may have in future to blame my 
 head, I will not leave the least self-reproach upon my heart, 
 either for too rigid requisitions or unsupported deviating 
 conclusions." 
 
 Colonel Phelps, in his letter of October 19, 1769, to "VYhee- 
 lock, says : "I this morning had an audience y^ Gov., who 
 appears very Friendly to you personally and to y^ School, 
 and I conceive he was not understood when he made his pro- 
 posal to add y*" Bishop of London to the Trust, he says he 
 did not mean that he should be of y*^ Trust on this side the 
 water, but of y*" Trust in England. I then asked how he 
 could add him in the Charter, which upon considering he 
 says he cannot, but only recommend him to y'' Gentlemen of 
 y* Trust at home to elect him, which if they would comply 
 with, he then would be of the Trust. I then urg'd tliat
 
 62 DARTMOUTH COLLEGE CAUSES. 
 
 he could not be made non-elective, to which he consented. 
 I then said that he, as Bishop of London, could not I con- 
 ceiv'dbe a member of y® trust for y*^ time being, and upon 
 y^ whole y® Gov"^ consents to make a charter, only inserting 
 therein a Recommendatory Clause in y® Charter to y^ Trust 
 at Home to Elect the present Bishop to be one of the 
 Trust in England to act with them and them only, 
 and also not to recommend him as Bishop to be one, 
 but only considered in private character, and that his 
 recommendation shall not extend to his successors. I 
 also queried with the Gov"" whether y® Trust at home 
 could add him to their number, and he seems to think 
 they cannot without a vacancy, and he is willing even to 
 suppress y® said Bishop in s'^ recommendation, and I think 
 he will consent to omit the addition of y^ President of 
 the Council, as speaker of y^ House, or Judge of y^ 
 Supreme Court. I have not had time to advise with but 
 two of Y*^ Council and one or two others, they are wholly 
 averse to a Bishop in particular being concern' d in y^ 
 School, or any other Non-Elective member, but they whose 
 judg't I think you would value (Strict Dissenters) seem 
 to think y*^ Bishop of London, being only a nominal member 
 of y^ trust in England, is but a mere matter of moon- 
 shine and not worthy of much consideration. Y*^ Bearer is 
 desired to wait on you with this, and * * * ye Qov'^'"^ 
 present purpose, as I have mentioned, should be so dis- 
 agreeable that you will not comply, I pray you would write 
 to me by a special post, who may be here by Saturday 
 of next week. 
 
 " Y*" Trust at home can, if they please, choose y® Bishop 
 of London without the Gov''"^ recommendation, and they 
 can refuse him if recommended. 
 
 " S', please to recommend me to my wife, to whom I 
 can't write if y® Bearer waits for this. 
 
 "I don't think y® Gov*" has any view to Clogg y® School 
 by recommending y® present Bishop of London to y" Trust
 
 PHELPS 'S LETTER WHEELOCK's REPLY. 33 
 
 at home to be one of s*^ Trust * * * and he can't if 
 y^ Trust at home shall see fit to elect him, have any influ- 
 ence on y^ School ; this is y^ sentiment of y® best men here, 
 who are averse to y^ Church * * * y*^ Gov"" has given 
 up almost ever}'' thing I asked, and will it not be a pity to 
 break with him for a mere circumstance, if the school 
 should be * * * I fear he will not be its benefactor, 
 and if fixed in his province, I believe he will do everything 
 for 3^ou, yours, & y^ School, he says he abhors every 
 thing like party, and I don't [believe] he is a Church- 
 man." 
 
 Wheelock replied to Went worth as follows: *'I have 
 this minute rec'd your Excellency's Favour of 18th inst., 
 and have read it with great pleasure and satisfaction. 
 The bearer of it having been retarded in his Journey 
 leaves me no time to consult a Friend in the case, and 
 make this return to your proposal by the time fixed for 
 it by Col. Phelps ; and indeed your proposal, since you 
 have explained it, appears so condescending, your views so 
 catholic, 3^our motives so great, your reasonings so strong, 
 and your friendship, integrity, and iiprightness therein so 
 evident as scarcely leave room for hesitation, or any appre- 
 hension of any need I have of council, in order to a full 
 compliance with what you propose, viz. To add the pres- 
 ent Bishop of London by name to the Trust at home in 
 England solely ; without any other connection than any 
 other of the gentlemen mentioned in London, that thereby 
 the world may know our sincerit}^ and universal good wishes 
 to Mankind, and at his demise the vacancy to be filled up 
 by Election as of another Member. — This indeed appears 
 to be as safe a passage thro' the straits between 8cylla and 
 Oharybdis as perhaps can be tho't of ; and yet I conceive 
 the bare mention of the name of Bishop in this affjiir will 
 give offence to numbers, tho' I cannot see at present but 
 their offence must be groundless, and I will therefore run 
 the venture of the consequences. But what authority your
 
 34 DAKTMOUTll COLLKGE CAUSES. 
 
 Excellency or any other man may have to add him to that 
 trust, or whether anything more can be done than to express 
 a desire that he might be one, is out of my Province to 
 determine. 
 
 " I here present you a Narrative lately printed in London, 
 in which your Excellency may see a copy of their declara- 
 tion of their Trust, and perhaps be thereby assisted in form- 
 ing your judgment in that matter. I perfectly agree with 
 your Excellency's sentiments of the importance of exter- 
 minating all Ideas that the benevolent charities are designed 
 to be applied merely and exclusively to the advancement of 
 Sectaries and particular opinions, with a fixed view to dis- 
 courage the established Church of England — yet, as the 
 reigning Distempers & Prejudices of our Day are, and con- 
 sidering also the vast disadvantage of an unwieldy Body, 
 and more so by having the IMembers at a great distance, I 
 am glad your Excellency will not insist upon the addition 
 of the Pro\dncial Officers 3'ou mentioned. And if your 
 Excellency shall see fit in your Wisdom & Goodness to 
 compleat the Charter desired, and it will be the least satis- 
 faction to you to christian the House to be built after your 
 own name, it will be exceeding grateful to me, & I believe 
 to all concerned ; and that God may lengthen out your 
 important Life to bless the rising Institution, and make to 
 you thereby a name better than of Sons and Daughters even 
 to the latest Posterity, will be the fervent prayer of him 
 who is with the most sincere respect and esteem," etc. 
 
 In 1768, there were but eight lawyers in New Hampshire, 
 and apparently none of them were consulted by Wheelock 
 in relation to the charter. Wheelock drafted a charter 
 himself, — not an application for one, — with such assist- 
 ance as he procured from his counsel, who were, probably, 
 William Smith and William Smith, Jr., of New York; 
 George Willys and John Ledyard, of Hartford, Connecti- 
 cut. William Parker, of Portsmouth, New Hampshire, 
 was apparently the sole legal adviser of Governor Went-
 
 COUNSEL WHEELOCK's DRAFT. 35 
 
 worth, and the changes made in the " draught of the 
 charter," to a great extent, were undoubtedly the work of 
 his hand. 
 
 Judge Parker was born in Portsmouth, New Hampshire, 
 in 1703 ; was a tanner by trade, and after he became of age 
 was a school-master. Later he studied law, and was admit- 
 ted to the bar in 1732, and in 1737 was clerk of the com- 
 missioners to settle the line between New Hampshire and 
 Massachusetts. Later he was register of probate; in 1765, 
 a representative to the Assembly; and in 1771, a justice 
 of the Superior Court. He was self-educated, and died in 
 Portsmouth, April 29, 1781, aged seventy-seven. 
 
 Judge Parker, in his letter to Wheelock, of October 28, 
 1769, says : "I have had an opportunity of confering with 
 Col. Phelps on the affair of the college proposed to be 
 erected here. 
 
 '•' You will find some alterations in the scheme & draft 
 of the charter. They are supposed to be amendments, and 
 I think they (to say the least) will not be impediments. I 
 cannot stay to enumerate them, the charter will show them 
 & the Col . will be able to explain the gi-ounds and reasons 
 of them. I have spent some considerable time with the 
 governor to form the plan in such a manner as will make it 
 most beneficial, and to prevail on him to make such conces- 
 sions as would suit the gentlemen with you. I am apt to 
 think the plan will be more serviceable as it now stands 
 than it was before. I shall be glad to serve the cause, and 
 have persuaded Col. Phelps to communicate it before the 
 finishing stroke tho. it will cost him another journey. I 
 have only to add that I am with great esteem," etc. 
 
 The Wheelock draft is still in existence, and apparently 
 in the handwi-iting of Sylvanus Ripley, Wheelock' s rela- 
 tive and bosom friend. We have carefully compared this 
 draft with the charter. 
 
 About two-thirds of a page in print was struck out of 
 the original draft, and two pages and a half added to the
 
 36 DARTMOUTH COLLEGE CAUSES. 
 
 charter. Some of these changes were vital. " In this the 
 title is ' Dartmouth Academy,' instead of ' Dartmouth Col- 
 lege,' and Dr. Wheelock is called the founder of the school^ 
 and not of the academy. The words are; ' "We appoint 
 our trusty and well beloved Eleazar Wheelock, doctor in 
 divinity, the founder of the said school, to be president of 
 said Dartmouth academy.'^ (Memoir of Eleazar Wheelock, 
 by Dr. Allen, Am. Quar. Register, August, 1837.) 
 
 The governor struck out the names of some of the trus- 
 tees inserted in the " draught," and added the names of six 
 Connecticut clergymen, retaining his own name and that of 
 one member of the Connecticut colonial government ; and 
 contrary to the expressed wish of Wheelock, inserted the 
 names of four of the provincial officers of New Hampshire. 
 He also struck out the names of Ralph Wheelock and Samuel 
 Kirtland. 
 
 Wentworth, and not Dartmouth, was the chief benefactor 
 and patron of the institution, and it should have borne his 
 name; "and this, in fiict. Dr. Wheelock authorized his 
 agent, in the negotiation al>out the charter, to propose to 
 the governor." (Memoir of Eleazar Wheelock, by Dr. 
 Allen.) 
 
 How the institution came to be named for Dartmouth 
 may never l)e known. Such a thing was manifestly no part 
 of Wheelock' s original intention or purpose. It did not 
 originate with Dartmouth or the London trustees. They 
 not only knew nothing about it, but were bitterly opposed 
 to the charter and establishment of the College when they 
 found it out. The probabilities are that it was proposed 
 l)y Wheelock, to avert the storm which he must have known 
 would follow, and that Governor Wentworth acquiesced for 
 the same reason. 
 
 On Marcii 12, 1770, Wheelock enclosed to Dartmouth a 
 copy of the charter, saying : " Governor Wentworth thought 
 best to reject that clause in my draught of the charter which 
 gave the honorable trust in England equal power with the
 
 CHANGES LOCATION OF THE COLLEGE. 37 
 
 trustees here to nominate and appoint the president i'loni 
 time to time, apprehending it would make the body too 
 unwieldy, but he cheerfully consented that I should express 
 my gratitude and duty to your Lordship by christianing after 
 your name, and as there seemed to be danger of many 
 embarrassments in many ways in the present roughened and 
 distempered state of the kingdom, I thought prudent to 
 embrace the first opportunity to accomplish it." 
 
 The wishes of Governor Wentworth were disregarded in 
 relation to the location of the CoUei^e. In his letter of 
 January 29, 1770, to Wheelock, he says: "Col. Phelps 
 is very justly desirous to have some certain to^vn deter- 
 mined on immediately for the site of Dartmouth College. 
 It is scarcely possible to give any proper advice upon the 
 subject, unless I know what soil was in each toAvn, and 
 the other interest, circumstances of reward or gratuity w^ 
 wou'd arise from any particular people obtaining it within 
 their district. Yet from all I can at present gather, either 
 Bath or Haverhill have the most advantages. As to the 
 particular spot in either of these towns, it can only be 
 chosen by actual and intelligent survey, perhaps cmteris 
 paribus, the center of either may be expedient for com- 
 munications with others. I wish that the college may have 
 the gov* of the town wherever it stands, as is usually in 
 England. This cannot be so easily had in Landaff, which 
 upon all accounts is much my preference, but by no means 
 my positive determination, which will be much inclin'd to 
 pursue your advice in it. Upon the whole, I consent to 
 Bath, Landaff, or Haverhill. The college to have at least 
 one hundred acres adjoining, & to stand not less than a 
 mile from the River. I have great pleasure in hearing, by 
 Mr. Cushman, of your good health, and sincerely wish you 
 every blessing." 
 
 Wheelock, in his " Narrative," after setting forth in detail 
 the offers made if he would locate the school in other juris- 
 dictions, and what was promised if it should be located in
 
 38 DARTMOUTH COLLEGE CAUSES. 
 
 New Hampshire, and stating the promised grant of land 
 (as b}' "THE King's most gracious Majesty, by advice of 
 his Excellency John Wentworth, Esq. ; his Majesty's Gov- 
 ernor of the province of New Hampshire, and of his council, 
 a Charter of the township of Landaff, about 24,000 acres," 
 which was followed by a printed list of subscriptions several 
 pages in length), says, in relation to the charter : — 
 
 "My next business was to secure the generous donations made 
 to it in said province. And in order thereto, having consulted the 
 principal gentlemen of the law, in this and the neighbouring 
 provinces, who unanimously advised that an incorporation, if it 
 could be obtained, was the only course I could take that would be 
 safe for the institution, * * * i therefore fixed upon this as 
 my next and immediate object, * * * and accordingly I 
 employed a proper agent to solicit his Excellency Governor Went- 
 worth, whom God has raised up to serve the interests of the great 
 Redeemer, in his province, and who appears to be unwearied in 
 doing good, and by him have obtained a generous charter, by the 
 name of DARTMOUTH COLLEGE, endowed with all the powers 
 and privileges of a university, with which this school is connected, 
 and to which it is designed to be subservient, and is by said char- 
 ter invested with the donations made to it in said province, though 
 the school itself remains under the same jurisdiction and patron- 
 age as before. 
 
 "But as neither the honorable trust in England, nor the charter 
 had fixed upon the particular town or spot on which the buildings 
 should be erected. Wherefore to complete the matter, as soon as 
 the ways and streams would allow, I took the Rev. Mr. Pomeroy, 
 and Esq. Gilbert, (a gentleman of known ability for such a pur- 
 pose,) with me to examine thoroughly, and compare the several 
 places proposed within the limits prescribed, for fifty or sixty 
 miles on, or near said river ; and to hear all the reasons and argu- 
 ments that could be offered in favor of each of them, in which 
 service we faithfully spent eight weeks, and in consequence of our 
 report, and representation of facts, the trustees unanimously 
 agreed that the southwesterly corner of Hanover, adjoining upon 
 Lebanon, was the place above any other to fix it in ; and that for 
 many reasons. * * *
 
 UNIVERSITY SCHOOL. 39 
 
 " The charter of this school requiring the meeting of the corpo- 
 ration within a 3'ear from the date of it, I did therefore, as was 
 requisite to save the forfeiture of it, call a meeting of the trustees 
 on the 22d day of October. — At which meeting it was proposed 
 to the trustees whether something could not be done by them to 
 perpetuate the name and deed of Mr. Joshua Moor, late of Mans- 
 field, in Connecticut, deceas'd ; who was the first considerable 
 benefactor to the school when it was obscure, and by many 
 esteemed contemptible, and after taking the matter into considera- 
 tion, it was resolved that they had no right by the charter to do 
 anything in that matter, and that the charter gives the trustees no 
 right of jurisdiction hut over the college; and that the school remains 
 still under the same 2^citronage, authority and jurisdiction as it 
 vjas under before the charter loas given.'" 
 
 One of the rules established for the government of the 
 institution provided : — 
 
 "Lastly, That this Indian charity-school, connected with Dart- 
 mouth College, be constantly hereafter, and forever, called and 
 known by the name of floor's School. * * * And I would 
 also take this opportunity to advise the generous subscribers, in 
 the Colony of Connecticut, and province of Massachusetts Bay, 
 &c., who have not yet paid their subscriptions made in the year 
 1755, and following, for the only use, benefit, and support of this 
 school (the yearly interest whereof was pa3^able on condition, and 
 so long as the school should be continued, and the principal to 
 become payable as soon as the school should become a body corpo- 
 rate, and thereby capable of the tenure and disposal of land, <&c. ), 
 that I suppose the said subscriptions are noio become payable by 
 this incorporation, according to the true design and intention of 
 the pious subscribers. * * * As to the surmises and preju- 
 dices thereby raised at a distance, that I have changed my object, 
 and that the charitable donations made for the use of this school 
 and missionaries are in whole or part perverted to my own, or 
 some other English design, &c., were it not for the operation of 
 these slanders beyond my acquaintance, I should not think it 
 worth my pains to say a word about them. * * * 
 
 " I have invariably kept the same object in view, and there has 
 not been a step taken, nor a stroke struck by me or my order, in
 
 40 DARTMOUTH COLLEGE CAUSES. 
 
 the whole affair of my removing, settling and accommodating 
 myself, family, and this seminary in this wilderness, but what has 
 been meant, calculated, devised, and designed, to be in direct 
 subserviency to my first object, viz., the gospelizing the Indians; 
 nor lias there been anything done here (excepting what I or others 
 have done at our own expense), hut it mxist have heen done if an 
 English college had never heen thought of. The Indians are the 
 first object in the charter., and the first object designed by all the 
 lands secured thereby, and of many other subscriptions and dona' 
 tions made to it. And there never has been, from the first to this 
 hour, du'ectly or indirectly, one farthing of the money collected 
 on either side of the water, for the use of my Indian school, or 
 for the support of missionaries, improved for my own, or my 
 family's support, or for anj?- other purpose, with my knowledge or 
 consent." 
 
 The ' ' Narrative ' ' further sets out the circumstances under 
 which £500 were given hy tlie General Assembly of the 
 province, £200 sterling by the king, the Pliillips donation, 
 and others. On July 30, 1770, one of the trustees, re- 
 ferring to Dartmouth and Thornton, wrote to Dr. Whee- 
 lock: " They, as well as the other trustees, see clearly that 
 by the affair of the charter, the trust here is meant to be 
 annihilated. It was certainly a very wrong step for you to 
 take without consulting us." 
 
 Dr. Wheelock, in his reply of November 9, 1770, three 
 months after his removal to Hanover, says: "There was 
 no design on the part of any of the trustees in Connecticut to 
 annihilate the trust in England ; " on the contrary, he says, 
 * ' that the Connecticut trustees desired that the trustees in 
 England should have not only the patronage of the school, 
 but of the college too, so far as to have an equal share in 
 the choice of a president, so long as they should see fit to 
 perpetuate their board, and so the charter was drafted, 
 when it was sent to Governor Wentworth ; nor have I ever 
 heard that one of the trustees in this province objected 
 against it, but the governor, apprehending it would be a 
 burden you would not be fond of, and that it would
 
 MANDATE OF THE BOARD OF TRUST. 41 
 
 make the body too unwieldy, rejected that clause in it. 
 The charter means to incorporate the school with the college, 
 and give it possession of the donations and gi'ants made 
 in tJiis province to it. But the charter was never designed 
 to convey the least power or control of any funds collected 
 in Europe, nor does it convey any jurisdiction over the 
 school to the trustees of the colleije. The charter oranted 
 them jurisdiction only over the college. If I resign my 
 office as president of the college, I yet retain the same rela- 
 tion to the school and control of it as ever." On April 25, 
 1771, the board wrote "Wheel ock the following letter : '* We 
 have lately taken into our serious consideration the affairs 
 of your Charter, and the matter appears to us in the same 
 light now as it did when we wrote to you the 30th of July 
 last. When we consider that the money collected here was 
 given for the express purpose of ' creating, establishing, 
 endowing and maintaining an Indian ' Charity-school and a 
 suitable number of missionaries to be employed in the 
 Indian Country, for the instruction of Indians in the Chris- 
 tian * Religion,' and for no other purpose whatsoever, we 
 cannot but look upon the charter you have obtained, and 
 your intention of building a college and educating Eng- 
 lish youths, as going beyond the line by which both you 
 and we are circumscribed. The motives that induced the 
 subscribers to contribute so generously to this undertaking 
 were doubtless the hope of spreading the knowledge of the 
 only true God and of his son Jesus Christ, that his way 
 might be knoAvai on those dark corners of the earth, and 
 his salvation amono; those unenlio^htened nations. With 
 the same views and upon the same plan we formed our- 
 selves into a Trust and pledged ourselves to the subscribers 
 as the guardians of their contributions to see them faith- 
 fully applied (as far as should be) to the purposes above 
 mentioned and no other. We think ourselves bound to 
 adhere invariably to this original plan, and must therefore
 
 42 DARTMOUTH COLLEGE CAUSES. 
 
 insist upon it that you do not deviate from it. We shall 
 expect that you keep a regular and distinct account of all 
 the monies laid out in erecting the school, educating Indian 
 youths, and equipping and maintaining missionaries agree- 
 able to the design of our institution, and that you do not 
 blend them with your College, and other matters foreign 
 to and separate from our undertaking ; that you do not 
 attempt to draw bills on us ui^on any other consideration, 
 but that you keep the accounts as before mentioned, clear 
 and separate, and annually transmit them to us, properly 
 authenticated, with the seal of the Province annexed ; and 
 moreover, that you endeavor to compile and draw up a 
 fresh Narrative as a continuation of that drawn up by us 
 and printed in 17(59. It is high time there should be one, 
 and the pul^lic expect it. We have no materials by us since 
 your unhappy division with Mr. Kirtland. His separation 
 from you renders the accounts we have from him abortive, 
 and we have no other, so it entirely rests with you, and if 
 you mean to stand fair in the eye of the public, or hope 
 for any further assistance from them, do not neglect or 
 delay sending over such a narrative, and be as open and 
 explicit as possible. We are desirous of strengthening 
 your hands and furthering the design while it appears to be 
 well executed, and no longer. With regard to Mr. Kirt- 
 land and your misunderstanding one another, as you are 
 parted, our interfering will not avail. Dr. Whitaker has 
 sent us a long letter in your behalf, and others have 
 informed us as fiivorably on Mr. Kirtland' s ; all we can say 
 of him is to wish him well, and that the Lord may own and 
 bless his labors among the Indians, and abundantly supply 
 his place with other missionaries in your connection. You 
 have and will continue to have our warmest wishes for your 
 success in the great and important work of bringing Indians 
 to the faith of Christ, and you may depend upon having 
 our best support in anything that comes within the limits
 
 WHEELOCK OBEYS. . 43 
 
 of the design, bejond which we do not think ourselves at 
 liberty to apply the money that has been deposited in our 
 hands." This letter was signed by Dartmouth, S. S. 
 Smythe, John Thornton, Chas. Hardy, Dan'l West, Sam'l 
 Savage, and Rob't Keen. This letter cannot be misunder- 
 stood. Wheelock obeyed its mandate.
 
 CHAPTEK II. — Continued. 
 
 Wheelock died April 24, 1779. His last will was appar- 
 ently executed April 2, 1779. In it he says: "I have 
 founded on my own tenement, and at my own expense, an 
 Indian Charity-School, now called Moor's Charity-School ;" 
 sets out that he is the founder thereof, ' ' and as founder 
 and proprietor thereof, as well as by grant in said charter," 
 undertakes " to dispose of said school, and all donations, 
 and grants of land, and other interests any way given or 
 granted for the benefit of said school," and appointed his 
 son his "successor in said office of president of my Indian 
 Charity-School and Dartmouth College," etc. 
 
 By it he gave two acres of land to the college. After 
 referring to the Indian school, he says : " To this charity- 
 school, I do give and bequeath the stream called Mink 
 Brook, with mills," etc. He also gave his servant-boy, 
 Archelaus, his freedom, upon certain conditions, when he 
 should attain the age of twenty-five years. The bequest, 
 etc., to the College and that to the school were as distinc- 
 tive from each other as was this to the slave. On June 14, 
 1785, the Legislature of Vermont granted to the school and 
 to the College, each, one-half of the township of Wheelock, 
 Vermont, which was six miles square. The terms of the 
 grant were distinctly to " the said Wheelock as president, 
 and his successors in office, to have and hold the one moiety 
 of said premises as above described solely and exclusively 
 for the use and benefit of said school forever, and the said 
 trustees and their successors in office to have and to hold 
 the other moiety solely and exclusively for the use and 
 benefit of said Dartmouth College forever." 
 
 (44)
 
 THE SCHOOL THE COLLEGE. 45 
 
 At a regular meeting of the Board of Trustees of Dart- 
 mouth College, holden at said College, May 7, 1789, the 
 following preamble and resolutions were adopted : — 
 
 Representations having been made to this board that appre- 
 hensions have arisen in the minds of some persons that monies col- 
 lected in Great Britain by the Revd. Messrs. Whitaker and Occom 
 for the use of Moor's Charity- School under the direction of the 
 Revd. Dr. Wheelock have been applied by this board to the use 
 and benefit of Dartmouth, — 
 
 Resolved that this board have never had any control or direc- 
 tion of said monies, nor have they to their knowledge at any time 
 received or appUed any sum or sums thereof to the use & benefit 
 of sd. college, but on the most critical examination relative 
 thereto, we are convinced this board have ever considered them- 
 selves as having no concern with the application of the said monies, 
 but that they were subject to the application of the late Rev'd. 
 Dr. E. Wheelock «&; his successors in the Presidency of Moor's 
 Charitj^-School, & those only ; nor have they to their knowledge 
 any interest in their hands on which revenues have arisen to them 
 as the effect of monies laid out by Dr. Wheelock or others, which 
 were of monies collected by Dr. Whitaker and Mr. Occom in 
 Great Britain as aforesaid ; and should any such in future arise, 
 it is the sense and intention of this board that such revenues be 
 applied by Dr. Wheelock' s successors solely to the objects for 
 which those donations in Great Britain were made. 
 
 On June 10, 1807, the Legislature of New Hampshire 
 passed the following act, entitled " An act more eifectually 
 to define and improve the charitable establishment known 
 by the name of the President of Moor's Charity-School, and 
 the powers and duties of the President thereof, and to con- 
 stitute a board to assist in directing the expenditures of 
 the funds of said school " : — 
 
 Whereas a school was a long time since founded by the late 
 Rev. Eleazer Wheelock, S. T. D., who was President or director 
 thereof, and also President of Dartmouth Cohege, which was 
 formerly and still is known by the name of Moor's Charity-School, 
 as well as Moor's Indian Charity-School, and has since the death
 
 46 DARTMOUTH COLLEGE CAUSES. 
 
 of said Eleazer been kept up and continued at Hanover in this 
 State, by the Hon. John Wheelock, LL.D., President thereof 
 and of Dartmouth College, as the successor of said Eleazer, as 
 President of said College and said school, — 
 
 And whereas money and valuable donations and grants have 
 been made of property in America for the benefit of said school, not 
 only to the said Eleazer, but to the said John, the successor of 
 said Eleazer in the office of President or director thereof, consid- 
 ered as being distinct in its objects from Dartmouth College, — 
 
 And whereas it has always been considered that Dartmouth 
 College and Moor's Charity-School are different branches of the 
 same institution, and that the President of said college ever has 
 been and ever should be President of said school ; and as the 
 trustees of said college have not considered that they had any 
 oflScial right to be concerned in the application of the funds of 
 said school, and as it is the desire of the President and deemed 
 by the friends of the institution advisable that the President in 
 the application of the funds of said school should act by and 
 with the advice and concurrence of other persons, — 
 
 Therefore, Be it enacted by the Senate and House of Repre- 
 sentatives in General Court convened, that the said John Whee- 
 lock, President of Dartmouth College, and his successors in Office 
 for the time being, appointed agreeably to the Charter of said 
 College, whether by the last will of the President preceding or 
 otherwise, shall forever hereafter be, and hereby is declared to be 
 the President of Moor's Charity School, and the Board of Trustees 
 of Dartmouth College for the time being shall forever hereafter 
 be and hereby is declared to be the Trustees of said School ; and 
 that said School as a Corporation, and as heretofore considered 
 for the purposes aforesaid may and shall be known and called 
 hereafter by the name of the President of Moor's Charity-School; 
 and that said President with the advice and consent of said 
 Trustees may and shall expend the issues and avails of all the 
 funds and property of said school for the uses intended by the 
 donors. Provided nevertheless that the funds of said College 
 and School, and their proceeds, shall be distinct and separate ; and 
 that nothing herein contained shall be considered as having any 
 concern with the funds in the care of the Hon. Society in Scot- 
 land for propagating Christian Knowledge, or as interfering with
 
 LEGISLATION. 47 
 
 their rights of inspection, or as affecting any other property 
 belonging to said School, than such as has been or may be here- 
 after granted in America for the use and benefit of said school. 
 
 And the funds of the school have been so kept and admin- 
 istered to this day. All these important grants, commencing 
 with that of the town of Wheelock, besides largo donations, 
 were secured through the exertions of the second Wheelock. 
 
 A protest against the act of June 27, 1816, was prepared 
 by the trustees, signed by most of the minority, and spread 
 upon the legislative records. In that, fourthly, "they 
 protest, because if this act can have any legal opera- 
 tion without the consent of the trustees under the char- 
 ter, it must in effect destroy the former corporation, and 
 consequently endanger the funds belonging to the College ; 
 especially the valuable township of Wheelock, granted to 
 the College and Moor's School by the State of Vermont. 
 So sensible did the House of Representatives appear to be 
 of this consequence, that they refused so to amend the act 
 as to make the State of New Hampshire responsible for the 
 losses the College might sustain by reason of passing the 
 act protested against." 
 
 The charity-school from the outset was a preparatory 
 school. 
 
 The gazetteers show that at times the school numbered 
 between fifty and sixty scholars. The hand-books say that 
 it ceased to exist as a separate and distinct institution iu 
 1846. The records, however, show that Asa Weeks was 
 the last " preceptor " of Moor's School, and that he ceased 
 to occupy that position in 1849. The treasurer of the Col- 
 lege has never had any thing to do "vvith the funds of the 
 school. 
 
 The entire management has been in the hands of the 
 president alone. A scanty fund still exists. Indians still 
 have the benefit of this fund, though they take the same 
 courses, enter the same classes, and receive the same 
 instruction as other students.
 
 48 DARTMOUTH COLLEGE CAUSES. 
 
 If they fail to pass examination when they apply for 
 admission, they are sometimes sent to a neighboring academy 
 as a "preparatory school." 
 
 We transcribe from the original draft, among the Whee- 
 lock papers, the following deed of trust : — 
 
 To all the x>&ople to tvhom these x>resents shall come, greeting. 
 
 Whereas Eleazar Wheelock of Lebanon in the county of 
 Windham and Colony of Connecticut in New England, in America, 
 doctor of divinity, Lath heretofore with great zeal and diligence 
 and of his own accord, founded a charity-school within the said 
 town of Lebanon in the colony aforesaid, with the sole view and 
 design of civilizing and gospelizing the Indian natives of North 
 America, in which (with the smiles of heaven) he hath been 
 hitherto very successful ; and may in time bring about (with the 
 same blessing) that most happy and important event ; towards the 
 encouragement of which great and laudable undertaking, there 
 have been made to the said Eleazer Wheelock, both in Europe and 
 America, many valuable gifts, grants, contributions and dona- 
 tions, and especially those of late so genei'ousl}^ given and collected 
 in Great Britain, upon the application and address of that worthy 
 undertaker, the Revnd. Doctor Nathanael Whitaker commissioned 
 and appointed for that purpose by the said Eleazer Wheelock, and 
 by and with the advice and influence of those noble and generous 
 friends and benefactors, the right Hon'^'*^ William Earl of Dart- 
 mouth, Mr. Baron Smythe, John Thornton, Samuel Roffey, Charles 
 Hardy and Daniel West, Esquires, Mr. Samuel Savage, Mr. Josiah 
 Eobarts, and Mr. Robert Keen, all of London in Great Britain 
 aforesaid, who voluntarily became guarantees to the public for the 
 due application of the monies that should be there collected for 
 and in behalf of the said Eleazer Wheelock for the design and 
 purpose aforesaid. 
 
 And whereas by means thereof it hath pleased the Almighty, 
 who hath the hearts of all men in his hands, to dispose many free 
 and charitable people both in England and Scotland to give and 
 contribute to the said Eleazer Wheelock for the establishing and 
 promoting the institution aforesaid many large sums of money, 
 amounting nearly to the sum of £11,000 sterUng money of Great 
 Britain aforesaid, which said monies have been received and put
 
 THE DEED OF TRUST. 49 
 
 into the hands of the aforesaid right Hon'^'*^ WilHam Earl of Dart- 
 mouth, Mr. Baron Smythe, John Thornton, Samuel Roffey, Charles 
 Hardy and Daniel West, Esquires, Mr. Samuel Savage, Mr. Josiah 
 Robarts, and Mr. Robert Keen, who now hold the same for the 
 said Eleazer Wheelock untill further advice and order necessary 
 thereto be by him given for the better securing and improving 
 the said monies and donations, and the interests and profits thereof 
 for the uses and purposes aforesaid. 
 
 And whereas it may so happen that further gifts and dona- 
 tions may hereafter be made, both in Europe and America, 
 towards, and for the furtherance of the undertaking and purposes 
 aforesaid, for the well being, ordering and disposing whereof, as 
 well as of those which have been so generously contributed as 
 aforesaid, it will be necessary that a board of trustees be 
 nominated and appointed by me the said Eleazer Wheelock, in 
 Europe and America, with several and distinct powers and in- 
 structions and to several purposes ; for the taking and receiving 
 all gifts, grants, subscriptions or donations made or to be made 
 on each side of the water; for the nse, support and due regula- 
 tion of said school, and the missionaries and officers thereof, that 
 may or shall, from time to time, be appointed ; and also to dispose 
 of and improve the same, according to the true intent, will and 
 meaning of the donors, and for the advancement of the great 
 and good ends proposed thereb3^ 
 
 Now therefore know ye that I Eleazer Wheelock, for the 
 considerations aforesaid, and for divers other weighty and good 
 reasons me thereunto moving, (and committing the affair to the 
 wise Disposer of all things,) do nominate and appoint my much 
 honoured and worthy friends aforesaid, the Right Hon'^'^ William 
 Earl of Dartmouth, Mr. Baron Smythe, John Thornton, Samuel 
 Roffey, Charles Hardy and Daniel West, Esquires, Mr. Samuel 
 Savage, Mr. Josiah Robarts and Mr. Robert Keen to be trustees 
 as aforesaid. And I do also by these presents give, grant and 
 make over unto them the Right Hon'''^ William Earl of Dartmouth, 
 Mr. Baron Sm5'the, John Thornton, Samuel Roffey, Charles Hardy 
 and Daniel West, Esquires, Mr. Samuel Savage, Mr. Josiah Rob- 
 arts and Mr. Robert Keen, and to their successors in trust, and 
 for the sole use and purpose aforesaid, all such grants, gifts, sub- 
 scriptions or donations, as have been or may hereafter be made
 
 50 DARTMOUTH COLLEGE CAUSES. 
 
 or given, of any kind or iu any way whatsoever thro' their hands 
 means or influence, and also all such monies, gifts or grants, already 
 collected and by them received, or to be received in any parts or 
 places in Europe for the uses and benefits aforesaid, for them and 
 their successors, to have, hold, dispose of and improve in the best 
 way and manner, only for the uses aforesaid under such limita- 
 tions and regulations as shall hereafter be mentioned ; and to do 
 whatsoever they shall judge proper and necessary to be done on 
 that side the water, for the security, well-being, prosperity, suc- 
 cess, and increase of the whole design in view. And in case of 
 the death or resignation of any of the aforesaid nine gentlemen, 
 such vacancy be declared and others chosen by a majority of the 
 remaining trustees to fill up suoh vacancy or vacancies, of such 
 men as are of the Protestant Reformed religion, and who believe 
 the Scriptures according to the publick standards of the Protestant 
 churches. 
 
 I do also nominate and appoint one (whom I have named in 
 my last will) to be my successor in the immediate care, oversight, 
 guidance and direction of this whole affair, reserving to him all 
 the power, privilege, jurisdiction, and authority which I now 
 have or may have, in and about the premises, so long and under 
 such limitations and restrictions, as shall hereafter be mentioned. 
 
 I do also nominate and appoint my faithful and trusty friends 
 Col. William Pitkin, Esqr. of Hartford, the Revnd. Benjamin 
 Pomeroy of Hebron, the Revnd. James Lockwood of Weathers- 
 field, the Revnd. Timothy Pitkin of Farmington, the Revnd. 
 Nathaniel Whitaker, D.D. of Norwich, the Revnd. William Pat- 
 ten of Hartford, and my son Ralph Wheelock, all of the Colony 
 of Connecticut, and the Revnd. Samuel Kirtland missionary, or 
 any others whom I shall think fit in my last will to add to their 
 number or appoint in their stead to be trustees of all the dona- 
 tions that have been, or shall hereafter be made, in the American 
 colonies for the use, support, and benefit of the school and mis- 
 sionaries as aforesaid ; and to them the trustees last mentioned I 
 give, grant, and make over a lot of land or tenement in the second 
 society in Lebanon aforesaid given originally by Mr. Joshua 
 Moore of Mansfield in said colony, and since confirmed to me by 
 a deed from his widow for the use and support of said school ; 
 together with the subscriptions made by diverse well disposed
 
 THE DEED OF TRUST. 51 
 
 persons in these colonies for tlie support and benefit of tlie same ; 
 and any, and all other real or personal estate that has been or 
 shall be given or any way conveyed or made over to this school 
 and missionaries, or to me for the use and benefit of the same ; to 
 them the trustees last mentioned and to their successors, to have 
 and to hold, or alienate and dispose of, as they, or the major part 
 of them shall judge best, only for the uses aforesaid. And that 
 they or any five of them the whole being duly notified (by letters 
 from my successor or otherwise,) of the time and place of meet- 
 ing, shall have full power to choose another trustee if they shall 
 think fit, and then to confirm the appointment I have made of my 
 successor, or to chase another of their number in his stead ; and 
 that the same so chosen to be mj^ successor, be approved by the 
 right honorable, noble and worthy gentlemen of the trust in Eng- 
 land, otherwise that a new nomination be made by either set of 
 trustees, till one be found on which all may unite, and that the one 
 appointed by the trust on this side of the water, shall officiate as 
 my successor till that matter be settled. 
 
 And I do further order and appoint, that my successor be 
 from time to time appointed by will, with the advice or approba- 
 tion both of the trustees here and in England, forever, or untill 
 a legal incorporation shall be obtained ; and that he be approved 
 by each of the boards of trustees, or that another be by them 
 chosen, as aforesaid. And in case my successor or successors shall 
 be without will, that one be chosen by both sets of trustees as 
 aforesaid, and that he who shall be appointed by the trustees in 
 America, oflaciate till that matter be settled as aforesaid. And 
 in case of any vacancy by the death or resignation of any of the 
 trustees here, that such vacancy or vacancies be supplied by 
 others chosen by the major part of the remaining trustees. 
 
 And it shall be the duty of the American trustees to examine 
 and authorize missionaries and school masters and appoint them to 
 their respective services and judge of their skill and fidelity in 
 performing the same ; and accordingly to place and continue, or 
 displace and remove them, as they shall judge fit ; and do any- 
 thing for the help and assistance of my said successor, in the 
 vigorous prosecution of the said great design. And to appoint 
 determine and fix upon laws rules and orders, for the due govern- 
 ment, edification, decency and good economy of the whole affair
 
 52 DARTMOUTH COLLEGE CAUSES. 
 
 on this side of the water, as they shall from time to time judge 
 necessary submittuig the same to the correction and approbation 
 of the trustees in England. 
 
 Also that my successors keep a faithful and fair account of 
 all the expenses and disbursements in this whole affair, and trans- 
 mit the same twice a year with an account of all successes and 
 remarkable occurrences, to the trust in England. And also that 
 he shall do the same with respect to any new plan which he or the 
 trust here shall think fit to introduce in the ijrosecution of this 
 design, when and as soon as there is an opportunity for it, and if 
 it may be, before he enters upon the execution of it, in order for 
 the approbation of the trust in England. And the account being 
 thus kept and transmitted, my successor or successors shall have 
 power to draw for monies as occasion shall require, and the trust 
 in England shall not have right to pi'otest any bill or draughts 
 made upon their treasurer to pay any expenses, made before my 
 successor shall have received notice of their disapprobation of 
 the measures he is pursuing. And I hope in God, who hath 
 hitherto so marvellously appeared to maintain and promote this 
 cause, which is his own, that he will yet take care of it and per- 
 form the highest wishes and hopes of his saints concerning it; 
 and particularly that he will yet further open the hearts of such as 
 he hath endowed with ability to provide a lasting fund for the sup- 
 port, not only of the school, but of the president, instructors, 
 and other officers necessary for the same. 
 
 And I do by these presents bind myself, &c., that the plan 
 aforesaid shall not by me be altered, without the consent and 
 approbation of the trust in England, but shall remain and be the 
 form and manner of the school, only reserving to myself the lib- 
 erty to change my successor or to nominate another instead of 
 him who is now named in my will, and also to add two trustees 
 more than are now named, or remove either of these, and appoint 
 another or others in their stead, if I shall think it expedient. 
 
 The College charter, iu the form of "Letters Patent, 
 under the publick seal of the Province," issued on Decem- 
 ber 13, 1769. It was recorded in the office of the Secre- 
 tary of the Province, December 18, 1769, and the corpora- 
 tion was duly organized under it, October 22, 1770. The
 
 CHARTER GRANTED BY AVIIOM. 53 
 
 charter, in theory, was granted by George III., the same as 
 all writs in the province were issued in his name ; but in fact 
 it was grantcdby John Wentworth, governor of the province, 
 without the knowledo;e of the kinof or the Home Office. 
 
 The royal commission to Governor John Wentworth is a 
 very elaborate document, covering nine long pages in print, 
 and details the powers conferred upon him with great minute- 
 ness ; yet nowhere in terms, or by any reasonable implica- 
 tion, does it confer upon him the power of chartering 
 colleges, or any other form of what are termed private 
 corporations . 
 
 The charter declared Dr. Wheelock the founder, made 
 him the first president of the College, and authorized him, 
 by his last will, to appoint his successor. 
 
 The following grant was made by Governor Wentworth, 
 months before the acceptance of the charter by the trustees : 
 
 Province of New Hampshire. 
 
 George the third by grace of God of Great Britain, France and Ireland 
 King, Defender of the faith, & so forth. 
 
 To all people to loliom these ijresents come, greeting. 
 
 Whereas many liberal & pious Donations both in Europe & 
 America have been made for the purpose of civilizing & educating 
 Indians, & for the furtherance of christian knowledge, — • apd 
 whereas the most extensive good will undoubtedly result from 
 such a wise & generous design both to the cause of Christianity 
 & knowledge and also to our service &, the permanent security of 
 our Colonies by reclaiming the savages to virtuous knowledge & 
 social subordination to the Laws and also enabling our good sub- 
 jects in those remote parts of our dominions to acquire learning 
 and thereby preventing their insensibly & unavoidably sinking into 
 an ilUterate and savage state unhappy to themselves & dangerously 
 dishonorable to good government, and whereas a College hath by 
 us been incorporated «fc erected by the name of Dartmouth College 
 under the great seal of our said Province, for these and man};- 
 other equally worthy & commendable purposes of the like nat- 
 lu-e, — Now Know ye, that for these purposes, we, of our special 
 grace, certain knowledge & mere motion, and for the due encour-
 
 54 DARTMOUTH COLLEGE CAUSES. 
 
 ageraeut of settling a new plantation within our said Province, 
 b}' and with the advice of our trusty and well beloved John Went- 
 worth Esquire our Governor & Commander in chief, in & over our 
 said Province of New Hampshire in New England and of our 
 Council of the same, Have upon the conditions and reservations 
 hereinafter made given & granted & by these presents for us our 
 heirs and successors do give & grant as a public donation to the 
 Trustees of Dartmouth College (lately incorporated and erected 
 in this our said Province) and to their successoi'S in that trust for 
 the use and benefit of said College and to their assigns a certain 
 tract or parcel of land commonly called and known by the name 
 of Landaff, situate, lying, and being within our said Province & 
 containing by admeasurement twenty-five thousand two hundred 
 and fort3'-se\'en acres, three roods & ten perches, out of which an 
 allowance is to be made for highwa3's & unimprovable lands by 
 rocks, ponds, mountains & rivers, one thousand & forty acres free 
 according to a plan & survey thereof exhibited by our Surveyor 
 General of lands for our said Province by our said Governor's 
 order & returned into the Secretary's office, a copy whereof is 
 hereunto annexed, butted & bounded as follows, vizt: — 
 
 [Description omitted.] 
 
 To have and to hold the said tract of land as above expressed 
 together with all the privileges & appurtenances to them the said 
 Trustees of Dartmouth College in their said capacity & to their 
 successors in said Trust & to their assigns for the use and benefit 
 of said College forever by the name of Landaff upon the following 
 terms, conditions & reservations, vizt. : First, that there shall be 
 settled & resident on the premises sixty families by the expiration 
 of four years, vizt., twelve families in one year from the first day 
 of March next, also twelve families more in the next year, vizt., 
 by the first day of March 1772, also twelve families more in the 
 third year, vizt., by the first day of March 1773, and also twenty- 
 four families more in the fourth j^ear, vizt., by the first day of 
 March which will be in the year of our Lord 1774, on penalty of 
 the forfeiture of any & every delinquent's share & of such share 
 or shares reverting to us, our heirs & successors, to be by us or 
 them entered upon & regi-anted to such of our subjects as shall 
 effectually settle aud cultivate the same. Second, that all white 
 and other pine trees within the said Township fit for masting our
 
 GRANT TO THE COLLEGE. 55 
 
 royal navy be caref nil}' preserved for that use & none to be cut or 
 felled without our special license for so doing first had & obtained 
 on penalty of the Forfeiture of the right of any proprietor pos- 
 sessor or settler to us our heirs & successors, as well as being 
 subject to the penalties prescribed by any present as well as future 
 act or acts of Parliament. Third, that a site for a town plot be 
 within one year laid out by the Trustees in such part of the said 
 Township as they shall find best for settlement of at least one 
 hundred and fifty families to each an acre, which town plot shall 
 be laid out in streets parallel to each other so as to intersect at 
 right angles, the two middle streets to be one hundred «&; thirty 
 feet wide, and all other streets to be at least sixty feet wide. 
 Fourth, that there be cut, cleared & made passable for carriages 
 a road of four rods wide through the said tract & this to be com- 
 pleted in two years from the date of this grant, in failure whereof 
 the premises to revert to us, our heirs & successors. Fifth, yield- 
 ing and paying therefor to us, our heirs & successors on or before 
 the first day of March 1779, the rent of one ear of Indian corn 
 only if lawfully demanded. Sixth, that every proprietor settler or 
 Inhabitant, shall yield & pay unto us, our heirs & successors 
 yearly & every year forever from and after the expiration of one 
 year from the above said first day of March, vizt. , on the first day 
 of March which will be in the year of our Lord Christ 1780, one 
 shilling proclamation money for every hundred acres of land he 
 so owns, settles or possesses & so in proportion for a greater or 
 lesser tract of the said land, which money shall be paid by the re- 
 spective persons above said their heirs & assigns in our Council 
 Chamber in Portsmouth or to such officer or officers as shall be 
 appointed to receive the same. Seventh, that any of the said 
 tract appearing to be well adapted to the growth of hemp or flax, 
 there shall be annually cultivated & improved a due proportion of 
 the said land not less than ten acres in every thousand acres with 
 that beneficial article of produce & these to be in lieu of all rents 
 & services whatsoever. In testimony whereof we have caused the 
 seal of our said Province to be hereunto affixed. Witness John 
 Wentworth Esquire our Governor & commander in chief in & over 
 said Province of N. H. the nineteenth day of January in the tenth 
 year of our Reign Anno que Domini 1770. 
 Recorded Jan'y 22, 1770.
 
 56 DARTMOUTH COLLEGE CAUSES. 
 
 PROvrNCE OF Nkw Hampshire. 
 
 George the Second by the grace of God of Great Britain, France 
 [l. s.] and Ireland King, Defender of the Faith, &c. 
 
 To all to whom these presents shall come, Greeting. 
 
 Whereas we did by our letters patent under the seal of our 
 Pi'ovince aforesaid dated the thirteenth day of December 17fi9 
 erect & incorporate a college within our said Province by the name 
 of Dartmouth College for the laudable purpose of spreading 
 Christianity among the Indians, and we did also thereby erect & 
 incorporate certain of our loving subjects therein named into a 
 body corporate & politic & their successors to have continuance 
 forever & to be known & distinguished as the Trustees of Dart- 
 mouth College «fe by that name to receive, purchase & possess & 
 enjoy lands, tenements, hereditaments, jurisdictions and franchises 
 for themselves and successors in fee simple &, to erect any houses 
 or buildings as they may think needful and convenient for the pur- 
 poses of said college, all which will more fully appear by reference 
 to our said letters patent. And it being represented unto us that 
 the said Trustees have accordingly erected part of the build- 
 ings of the said college on a tract of land of about five hundred 
 acres situate in the southwesterly angle of the town of Hanover 
 in our said Province which tract as yet remains ungranted 
 by us, — 
 
 Know Ye therefore that of our special grace & favour for re- 
 claiming the Savages to virtuous knowledge &. by and with the 
 ad%ice of our trusty & well beloved John Wentworth Esq. our 
 Gov"" & Commander in chief in &, over our said Province & of our 
 Council of the same Have upon the conditions and reservations 
 hereinafter made given & granted & by these presents for us, our 
 heirs & successors to give and grant unto the Trustees of Dart- 
 mouth College & to their successors in that trust for the use & 
 benefit of the said College & to their assigns, three hundred acres 
 of land being the particular spot on which said College stands, the 
 same being butted & bounded as follows : — 
 
 [Description omitted.] 
 
 To have and to hold the said tract of land as above expressed 
 together with all the privileges & appurtenances to them the said 
 Trustees of Dartmouth College in their said capacity & to their
 
 GRANT TO WHEELOCK. 57 
 
 successors in that trust & their assigns for the use & benefit of 
 said College forever, upon the terras hereafter mentioned. And 
 in consideration of the faithful endeavours of our trusty & well 
 beloved Eleazer Wheelock, Doctor in Divinity the present Presi- 
 dent of our said College to further & promote the general 
 advantage & benefit of the same, particularly in his having gener- 
 ously made a donation of four hundred acres of land in the said 
 Town of Hanover to the said College we have by & with the advice 
 aforesaid & by these presents do give & grant unto the said 
 Eleazer Wheelock & to his heirs & assigns forever two hundred 
 acres of land being the remaining part of the aforesaid five 
 hundred acres butted & bounded as follows : — 
 
 [Description omitted.] 
 
 To have & to hold the said two hundred acres of land to him 
 the said Eleazer Wheelock & to his heirs & assigns forever upon 
 the following terms, conditions & reservations, viz — First, That 
 a road of three rods wide be cut, cleared & made passable for car- 
 riages of all kinds through each of the tracts of land aforesaid as 
 may be hereafter directed or ordered by the Gov"" & Council afore- 
 said. Second, That five acres for every fifty acres of land con- 
 tained in the above described premises respectively be improved, 
 cultivated & planted within two years from the date of this grant 
 on penalty of the forfeiture of the delinquents right in these 
 presents & of its reverting to us our heirs & successors. Third, 
 That all white & other pine trees fit for masting our Royal Navy 
 be carefully preserved for that use & none to be cut or felled 
 without our special license for so doing first had & obtained on 
 penalty of the forfeiture of the right of the grantee in the premises 
 his heirs & assigns to us our heirs & successors as well as being 
 subject to the penalties prescribed by any present as well as 
 future act or acts of Parliament. Fourth, Yielding and paying 
 therefor to us, our heirs & successors on or before the nineteenth 
 day of December 1774 the rent of one ear of Indian corn only, if 
 lawfully demanded. Fifth, That the said Trustees and their suc- 
 cessors in their capacity aforesaid & the said Eleazer Wheelock his 
 heirs & assigns shall respectively yield & pay unto us our heirs & 
 successors yearly & every year forever from & after the expiration 
 of five years from the date of this Grant one shilling proclamation 
 money for every hundred acres contained in their respective rights
 
 58 DARTMOUTH COLLEGE CAUSES. 
 
 in the premises hereby granted ; which money shall be paid as 
 above said in our Council chamber in Portsmouth or to such 
 officer or officers as shall be appointed to receive the same & these 
 to be in lieu of all other rents & services whatsoever. In testi- 
 mony whereof we have caused the seal of our said Province to be 
 hereunto affixed. 
 
 Witness John Wentworth Esq. our aforesaid Governor & com- 
 mander in chief the nineteenth day of December in the twelfth 
 year of our reign A. D. 1771. 
 
 J. Wentworth. 
 
 By his Excellency's command &c. 
 
 Theodore Atkinson, Secy. 
 
 Wheelock, in his letter from Lebanon, Connecticut, to 
 Colonel Phelps, dated I^ovember 20, 1769, says: "For 
 your direction in the business on which I now employ 
 you, I need only give you some general hints, and leave 
 you to conduct the whole affair according as your own 
 prudence, wdth the advice of such as you shall see fit to 
 consult, shall dictate. When his excellency Gov. Went- 
 worth has given me the charter, & you have got it 
 recorded, let the deed of lands given to the school & 
 myself be executed, in which let your eye be upon having 
 as much near & convenient for speedy improvement for 
 the present support of my family & school, as may be. 
 Bring the several offers made to induce a preference for 
 the site of it in particular places, and have with you the 
 estimate of judicious & impartial men relative thereto, and 
 especially his excellency's reasons for jDreferring the place 
 he shall choose to fix it in. 
 
 " Give my duty to his excellency the late Govern'', and tell 
 him I would humbly propose to his consideration, whether 
 it would not be an offering well pleasing to Christ if, in 
 addition to all his acts of piety and charity, he should set- 
 tle a pension for the support of a professor, or tutor, or 
 some needy youths in Dartmouth College, as his wisdom 
 and goodness shall direct, and the benefited person to bear 
 his name and so perpetuate his memory with the memory
 
 wheelock's labors. 59 
 
 of his deed, to the latest posterity. Let the proposal be 
 properly made to his excellenc}'^, and I am persuaded he will 
 gladly embrace the opportunity to give such a dying testi- 
 monial of his respect to the kingdom of the great Kedeemer. 
 
 " See what donations may be had by charitably disposed 
 gentlemen of materials which shall be necessary for the 
 buildings, such as glass, putty, coloring, papering, sj)ikes, 
 nails, for floors, ceiling, enclosing, shingling, clapboarding, 
 lathing, locks, latches, * * * hinges, fire-shovels, 
 tongs, hand-u'ons, &c. 
 
 " And if a good bell should be offered, don't refuse it. 
 
 '< See what provision may be made most conveniently for 
 putting seed of all kinds into the ground seasonably for the 
 support of my family and school, & what provision for 
 my removal, & what way my family and school may be 
 supported there at first, &c. 
 
 " See what materials for building may be had on the 
 spot, viz., of boards, shingles, clapboards, window frames, 
 sashes, laths, &c., stones, limestone, brick. 
 
 " And how laborers of all kinds may be employed in the 
 cheapest manner for the school," etc. 
 
 The reference to the late governor is to Benning Went- 
 worth. 
 
 The distinction here drawn between the College and the 
 school is as marked as that between himself and either. 
 
 The following exj^lains the grant to Wheelock : "In the 
 Memoirs of Dr. Wheelock it is stated that for his great 
 labors, eight or nine years president of the College and 
 school, professor of divinity, and pastor of the church in the 
 College, he received no salary, his only compensation being 
 a supply of provisions for his family. The Legislature of 
 New Hampshire, after the College was established, voted 
 him one hundred pounds. 
 
 " Governor Wentworth granted him, December 19, 1771, 
 two hundred acres of land in Hanover, in consideration of his 
 having made a donation of four hundred acres in Hanover 
 to the College. The history of tlie affair is this : Benning
 
 60 DARTMOUTH COLLEGE CAUSES. 
 
 Wentworth had given five hundred acres to the College, 
 and the proprietors of the town had given Dr. Wheelock 
 four hundred acres. At the first meeting of the trustees, 
 October 22, 1770, they agreed with him, at his . request, 
 to exchanse two hundred acres out of the five hundred for 
 his four hundred acres ; but this gift proving illegal, Gover- 
 nor John Wentworth made the grant of the two hundred 
 acres directly to Dr. Wheelock, Avho allowed the College to 
 retain the four hundred acres formerly agreed to be given 
 for the same two hundred acres." (See Memoir of Whee- 
 lock, by Dr. Allen.) 
 
 It is not only apparent that Governor Wentworth intended 
 to put the College upon the same footing as the universities 
 at home, with which he was familiar, but, from the " Narra- 
 tive," from which we have already quoted, that Dr. Wheelock 
 regarded the charter as creating a university ; that the trus- 
 tees in the most solemn manner, for years even after the 
 troubles commenced, so denominated the institution. Dr. 
 Belknap, the unfriendly critic of Wheelock, who was familiar 
 with the whole history, says : " The township of Hanover, 
 on the eastern l)ank of the Connecticut River, was finally 
 determined as the most convenient situation for the school ; 
 to which the Governor annexed a charter of incorporation 
 for an university, which took the name of Dartmouth Col- 
 lege, from its benefactor, the Earl of Dartmouth. Of this 
 University Dr. Wheelock was declared the founder and 
 president." (2 Belknap's History of New Hampshire, 270.) 
 
 Dr. Wheelock' s views probably appear more fully than 
 elsewhere in the following elaborate memorial to the Ver- 
 mont Legislature : — 
 
 To the Honorable the General Assembly of the State of Vermont 
 to be convened at Bennington June, 1778. 
 The Memorial of the Eev. Elefizer Wheelock D.D. President 
 of Dartmouth College on Connecticut River. 
 Humbly showeth 
 That Your Memorialist did, at his own expense and upon his 
 own inheritance above 20 years ago found a Charity-School for the
 
 THE UNIVERSITY WHEELOCK's MEMORIAL. 61 
 
 education of the Children of the native Savages of this land and 
 also such Youth of the English as should appear of pregnant parts 
 and piously disposed in the learned Languages and all the liberal 
 Arts and Sciences and especially in the doctrines and principles 
 of our holy religion in order to qualify them to spread the knowl- 
 edge of the only true God and Saviour and to advance the King- 
 dom of the Redeemer amongst all the several Nations and Parties 
 of Men upon this Continent ; and by the blessing of God on his 
 feeble endeavors many Missionaries and School-masters educated 
 here have been sent forth and many schools set up and children of 
 the savages taken into them in the Wilderness and the prospects 
 were so encouraging as that numbers of piously disposed Gentle- 
 men not only in America but Gentlemen and Noblemen of first 
 characters in Europe have condescended to patronize and encour- 
 age the same. And generous collections were made for the sup- 
 port and furtherance of it in consequence of the solicitations of 
 the Rev. Dr. Whitaker and the Rev. Mr. Sampson Occom whom I 
 sent into Europe for that purpose ; that in consequence thereof 
 many subscriptions of landed and other interests were generously 
 made in the several governments of New England and parts adja- 
 cent to invite the settlement of it with them respectively. 
 
 The decision of which being referred to the right Honorable 
 and Worthy Trustees in London who gave the preference to the 
 place where it is now settled. Tlie royal favor of a charter was 
 hereupon granted at the desire of your Memorialist, amply 
 endoicing it tvith jurisdictions powers immunities and privileges 
 equal to any University tvithin the Realm of Gh'eat Britain, and 
 whereby it became a body corporate and politic as independent as 
 any corporation — or any other incorporate body whatsoever is or 
 can be ; that since the commencement of the present War all 
 resources for its support from beyond the Seas have been wholly 
 cut off and suspended, whereby it has been exposed to great ne- 
 cessities and to require a charitable patronage and assistance from 
 some one or other of the United States in America. And as it is 
 by the Providence of God located in your vicinity and I have 
 with pleasure observed in your well formed constitution the 
 expressions of your pious care early to lay a foundation to pro- 
 mote Religion, Learning and Virtue in your State, and particu- 
 larly to erect a University in the same for the encouragement of 
 those pious purposes, I am encouraged to make this proposal to
 
 62 DARTMOUTH COLLEGE CAUSES. 
 
 you and desire you to take it into consideration whether you will 
 or not take this School under your friendly and charitable patron- 
 age and assist and vindicate the rights, jurisdictions, immunities, 
 powers and privileges which it is entitled to by royal Charter and 
 which has since been ratified and confirmed by the Honorable 
 Continental Congress and particularly that till it shall be in a 
 capacity to appoint such Officers and Orders as it is by Charter 
 entitled to for the safety edification and well-being of the same 
 that you would enact that the President for the time being shall 
 be a justice of the peace he being duly qualified therefor, and that 
 the Corporation of said College shall have right to appoint another 
 to that Office to be an assistant and officiate with him therein, and 
 this more especially for the trial of causes which concern the /School 
 or University, that they shall have right as occasion shall require 
 to call in a Magistrate or Magistrates a Justice or Justices of the 
 peace of the vicinity in your State to assist as there shall appear 
 occasion in the trial of such causes as may be before them and 
 that the Officers of your State shall be under the same obligation 
 to obey the precepts issued forth by the aforesaid authority, 
 that they are to obey any other Officer or Judicatory whatsoever ; 
 that appeals from this court shall be to the superior court of your 
 State ; that all trycds and determinations icherein those are con- 
 cerned who do not belong to or are not connected tvith this School 
 or University and all processes respecting such shall he according to 
 the Laivs of your State. And moreover, that j'ou grant unto this 
 University, that there be two or three Charity-Schools or Acade- 
 mies besides the present erected upon the same plan and under the 
 same jurisdiction and for the same pious purposes as the present 
 in connexion with this University is, and they to be fixed in such 
 places as your State shall judge most convenient ; that the respec- 
 tive schools shall be endowed with landed and other interests as 
 the charity and pious disposition of j'our State or any individual 
 thereof shall induce them to liberality towards the same. — That 
 this corporation shall have liberty as they see occasion, due 
 respect being had to the friendship and liberality shown to 
 them respectively by the inhabitants in the vicinity, to give the 
 preference to either of them as the place for the Annual Com- 
 mencement to confer the honors of said University, or to erect a 
 principle building to accommodate the students belonging to the 
 same ; that those glebes of land which were granted in the respec-
 
 avheelock's iviemorial. G3 
 
 tive Townships to the Society in Land as for the propagating of 
 the Gospel in foreign parts shall, or such part of them as you 
 shall judge fit, be granted and sequestered to the only benefit use 
 behoof and support of said Schools or of the University to which 
 they shall be subordinate and this as being most agreeable to the 
 original charitable and pious purpose and design of the same, and 
 I submit to your consideration tvhether you ivill not esteem a grant 
 to this University of the Township of Kingsland which was once 
 granted for the encouragement and building up of an Episcopal 
 College in New York to be a reasonable and acceptable return 
 and offering to the Lord Jesus Christ for the signal tokens of the 
 divine favor hitherto manifested to your State ; and as to what I 
 have said respecting your charitable endowment of this Institution 
 it is wholly submitted to your wise and prudent determination. 
 And OS to ivhat concerns the poivers, jurisdictions and immunities of 
 the same here expressed they do not exceed those which were granted 
 by the roycd charter. And your own thoughts will suggest whether 
 they are more than are necessary for the safety and well-being of 
 an Institution of such a nature and so liberally endowed with an 
 invaluable treasure to be defended and secured or more than will 
 best subserve the honor and reputation of your State and render 
 it respectable in the account of the present and of generations 
 yet to come. 
 
 Respected Gentlemen, with my best wishes and ardent prayers 
 that you may enjoy peace, unanimity and divine guidance and 
 direction in all your consultations and determinations in the im- 
 portant matters that are before you and that the word of God in 
 due time may have free course, run and be glorified and the 
 Redeemer's Kingdom be built up and glory dwell in your state, 
 
 I subscribe with much affection and esteem your Honorable 
 
 Assembly's most obedient and most humble servant, 
 
 Eleazar "Wheelock. 
 Dartmo. College, 4 June, 1778." 
 
 "We have italicised some of the more important passages. 
 The following extracts from its journals show to some 
 extent the actions of the Continental Congress : — 
 
 July 12, 1775. 
 That as there is a Seminary for the instruction of Indian youth 
 which has been established under the care of Dr. Wheelock, on
 
 64 DARTMOUTH COLLEGE CAUSES. 
 
 Connecticut River, and as there are nine or ten Indian youths at 
 that school, chiefly from the tribes residing near Quebec ; and as 
 for want of a proper fund, there is danger that these youths may 
 be sent back to their friends, which will probably excite jealousy 
 and distrust, and be attended with bad consequences, the Commis- 
 sioners for Indian Affairs in the Northern Department be authorized 
 to receive, out of the Continental Treasury, a sum not exceeding 
 Five Hundred Dollars, to be applied by them for the support of 
 said Indian youths. ( 1 Jour, of Cont. Cong. 163. ) 
 
 jAir. 10, 1776. 
 Resolved, That the Commissioners for Indian Affairs in the 
 Northern Dept. be directed to pay Rev. Dr. Wheeloek $500, 
 agreeable to a resolution of Congress passed the 12th day of July 
 last. (2 Jour, of Cont. Cong. 18.) 
 
 April 10, 1776. 
 
 Resolved, That although the prosperity of Dartmouth College, 
 in the colony of New Hampshire, is a desirable object, it is neither 
 reasonable nor prudent to contribute towards its relief or support, 
 out of the public Treasury. (2 Jour, of Cont. Cong. 126.) 
 
 Sept. 19, 1776. 
 
 As it may be a means of conciliating the friendship of the 
 Canadian Indians, or at least of preventing hostilities by them, in 
 some measure, to assist the President of Dartmouth College in 
 New Hampshire, in maintaining their youth, who are now there 
 under his tuition, and whom the revenues of the College are not, 
 at this time, sufficient to support ; that for this purpose $500 be 
 paid to the Rev. Dr. Eleazer Wheeloek, President of the said Col- 
 lege. (2 Jour, of Cont. Cong. 365.) 
 
 Friday, 18 December, 1778. 
 
 A report from the Board of Treasury was read. Whereupon 
 Congress came to the following order and resolution : — 
 
 Whereas Dr. Wheeloek has incurred expense in supporting a 
 number of Indian Youth of the Caghnawaga tribe at his school 
 which in times past has been the means of conciliating the friend- 
 ship of that tribe : — 
 
 Ordered that a warrant issue on the Treasurer in favor of 
 Lieutenant Colonel Wheeloek for nine hundred and twenty-five 
 dollars for the use of the said Doctor Eleazer Wheeloek.
 
 COXTINENTAL CONGRESS COLLEGE DISTRICT. 65 
 
 "When the Indian school and College were established in 
 the wilderness at Hanover, Wheelock's religious and per- 
 sonal friends from Connecticut swarmed up the valley and 
 located above and below him on both sides of the river. 
 Fifty-two people from Connecticut settled Hanover, and 
 eight hundred families from Connecticut gathered in a few 
 towns on the New Hampshire side alone. In a word, he 
 founded on the extreme western border of New Hampshire, 
 separated from the rest of that State by a vast wilderness, a 
 Connecticut colony which had but a mystical legal connec- 
 tion with it. The better to conserve his power, a district 
 three miles square, called Dresden, was created, to be under 
 the immediate jurisdiction of Dartmouth College, and 
 special jurisdiction over this little empire was given to Presi- 
 dent Wheelock as its magistrate. Aside from Wheelock, 
 the College faculty were at the bottom of the secession of 
 the sixteen river towns from New Hampshire, and the move- 
 ment to establish a new confederacy, with the College district 
 as its capital. The church, school, and College were under 
 the personal, or, as he termed it, the " paternal," govern- 
 ment of the president till his death, in 1779, when they 
 descended as an heirloom to his son John Wheelock, who 
 was called from the army, and became by force of his 
 father's will his dynastic successor. He retained his office 
 until he was removed by the trustees in 1815, after a service 
 of thirty-six years. 
 
 The second Wheelock had had the benefit of foreig:n 
 travel ; gathered contributions for the College in all coun- 
 tries ; was rich, courtly, and strong-willed ; had given his 
 services, and oftentimes his money, to the College, and had 
 proposed to give more, and make it, in effect, his heir.
 
 CHAPTER III. 
 
 THE KELIGIOUS PHASE OF THE CONTROVERSY — DIFFER- 
 ENCES BETWEEN DR. WHEELOCK AND DR. BELLAMY — 
 CHURCH TROUBLES AT HANOVER — THE FAMILY DY- 
 NASTY—CORRESPONDENCE—THE STANDING ORDER — THE 
 CLERGY EXEMPTED FROM TAXATION — LIBERAL VIEWS 
 AND POLICY OF GOVERNOR PLUMER— DR. WHIPPLE'S TOL- 
 ERATION ACT. 
 
 A FUNDAMENTAL provisioii of the College charter was that 
 there should be no discrimination on account of religious 
 faith or principles. 
 
 The population of the province, at this time, was about 
 sixty thousand, and probably a majority of them were ortho- 
 dox of the Plymouth Rock school ; but Episcopalians were 
 quite abundant on the sea-coast, and many of the prominent 
 men of the province, including the governor who granted the 
 charter, affiliated with that church. Presbyterian churches 
 were scattered along the valley of the Merrimack. Whee- 
 lock had great popularity, and, in his later years at least, 
 was a Presbyterian, and gathered about him churches of 
 that order. 
 
 There were natural and substantial reasons for Wheelock's 
 course. His lot was early cast in what was essentially a 
 Scotch settlement, to whom the faith and forms of their 
 fathers came by inheritance. From first to last, the Presby- 
 terian Church cordially sustained him, and contributed with 
 marked liberality to forward the great enterprise which was 
 nearest his heart. The royal governors of New Hampshire, 
 though strongly attached to the Church of England, favored 
 the Presbyterian Church over the Congregationalist. Ex- 
 ceedingly strict in morals and decided in matters of faith, 
 
 (r.6) ^'
 
 wheelock's course — haze's case. 67 
 
 he was tolerant far beyond his time of those who differed 
 from him in opinion, as long as he felt that they were sin- 
 cere and led pure lives. Unworthy persons had been 
 brought within the fold through the half-way covenant, and 
 otherwise ; and he felt that such would be less likely to 
 vote themselves and their fellows out of its pale than a more 
 conservative body like the sessions. 
 
 Difficulties arose in the church at Hanover. 
 
 There was " a woman in the case." We quote the fol- 
 lowing : — 
 
 To y^ Session of y^ Church of Christ in Hanover. 
 
 Rev'd and Beloved. Y® subscriber being aggrieved with Sam'l 
 Haze, [Hayes] a member of said Church, for his browbeating 
 and insulting me when attempting to admonish him for forbid- 
 ding his family to come to my house unless of an arrand ; in 
 telling me I was doing all in my power to undo his family, and 
 that I had been trying to do it this number of years ; also for tell- 
 ing me I was meddling y*^ most of my time with that I had no 
 business with, and that my character was, as a certain man told 
 me, as black as Hell, he told me I knew where ; also he told me I 
 had almost broke up one school by my conduct ; also for telling 
 me when put in mind of our neighbor's settlement, that he had 
 never settled anything with me ; also by way of irony, he told me 
 if I proceeded against him, he supposed I would get Mr. Rudd to 
 enter y*' complaint ; also he told me my dealing with him was pub- 
 lick ; and being asked how that came to be, told me that he had 
 made it so ; also that my conduct was erroneous, and far worse 
 than Mr. Bassetts ; which conduct of Said Haze I apprehend to be 
 a breach of y'^ ninth command, and also a violation of his cove- 
 nant engagement ; and having taken y^ more private steps, and 
 being unable to recover y'' brother from his error, I, in this way, 
 tell it to y*^ Church, that he may be dealt with as God, in his word 
 requires. 
 
 Rachel Murch. 
 Hanover, April 26, 1783. 
 
 Mr. Haze was tried, convicted, and censured by the ses- 
 sions. He appealed to the Grafton Presbytery, which then
 
 68 DARTMOUTH COLLEGE CAUSES. 
 
 embraced most of the churches in that region, and which, 
 in effect, held him guilty, but not censurable. The sessions, 
 led by the pastor, Rev. Dr. Burroughs, remonstrated, and 
 arraigned the presbytery for its decision. The latter vacil- 
 lated, but finally cited the sessions, which refused to obey 
 until the obnoxious decision was annulled. In March, 1784, 
 the sessions, and such of the church as adhered to them, — 
 fifty-six persons in all, — separated from the presbytery, 
 which, in May, 1784, cited them to appear at Orford to 
 show cause why they should not be dealt with as rebels and 
 covenant-breakers. On June 4, 1784, this summons was 
 formally defied by the sessions. Four days later, the presby- 
 tery decided that Dr. Burroughs and his followers, in sep- 
 arating themselves from the church and presbytery, were 
 covenant-breakers, and cut them oflT from fellowship with 
 the churches connected with that presbytery ; but, as there 
 was no synod, proposed a mutual council. The sessions 
 promptly rejected the proposition, and the church confirmed 
 their action. The other church at Hanover, Wheelock, the 
 professors, and some of the trustees, were involved in the 
 controversy until Dr. Burroughs was dismissed, in 1809, 
 when there was a change of form in these church troubles. 
 
 From the outset, the pivot question was one of discipline, 
 and into that the one of church government entered. 
 
 The mass of details, into which we cannot enter, have 
 been gathered with praiseworthy industry by the Rev. 
 Charles A. Downs, superintendent of public instruction in 
 New Hampshire, and former pastor of the Congregational- 
 ist church at Lebanon, which is about five miles from the 
 College. 
 
 In the Board of Trustees, Dr. John Wheelock led the Pres- 
 bjrterian wing, and Dr. Shurtleff, apparently, but Judge 
 Niles really, led the other. 
 
 Judge Niles was a favorite student of and read theology 
 with Dr. Joseph Bellamy, of Connecticut, who graduated at 
 Yale in 1735, two years after the elder Wheelock.
 
 WHEELOCK NILES THE TRUSTEES. 6t) 
 
 Bellamy was a pungent controversialist, and there was a 
 radical dift'erence between him and Dr. Wheelock about 
 church polity, etc. 
 
 Dr. Wheelock claimed that the Presbyterian, and Dr. 
 ShurtlefF that the Congregational, form of church govern- 
 ment should prevail. The former was a government by the 
 eldership, and the latter by major vote of the body of the 
 church, — a pure democracy. 
 
 Many of those who are best informed believe that the sub- 
 sequent troubles and the famous litigation arose in fact, as 
 well as in form, from this apparent difference of opinion 
 about church government. The eight trustees who removed 
 Dr. Wheelock were manifestly of the opposite opinion. 
 They say : ' ' The trustees now solemnly declare that they 
 do not feel, and never have felt, any hostility toward the 
 Presbyterian form of church government, or toward the 
 church of which the president is a member ; nor any wish to 
 give the new church any advantage over the old, or in any 
 way to interfere with their unhappy controversy. * * * 
 They do, however, believe that the seeming attachment of 
 the president to this particular form of church government 
 is mere pretence." 
 
 We think this difference was only the name of the case, — 
 the John Doe and Richard Eoe of the ejectment ; or, as 
 Judge Crosby emphatically puts it, " The second Wheelock 
 lost his presidency by removal. True, perhaps too true. 
 It was not caused by incompetency, nor by neglect of duty, 
 nor change of religious opinion, but simply to rid the board 
 and College of the family dynasty." 
 
 Mr. Adams was a professor in the College under Dr. 
 Wheelock. He was the special, intimate, and confidential 
 correspondent of Thomas W. Thompson, one of the hostile 
 trustees, and one of the most active and efficient manao-ers 
 on the anti-Wheelock side. On September 10, 1814, he 
 wrote a lengthy letter to the elder Farrar, another trustee, 
 in relation to politics and the affairs of the College. In it
 
 70 DARTMOUTH COLLEGE CAUSES. 
 
 he says : "I have heard it suggested that a project is on 
 foot to have the president resign, the trustees first pledging 
 themselves to appoint Mr. Allen. This is indeed a project 
 I have expected, but did not look for it quite so soon. I 
 trust, however, that the trustees are not yet prepared to 
 give a warranty of the college to the family dynasty. I 
 hope also that they do not think they have such a set of 
 turbulent, refractory professors that it is necessary to place 
 over them a democratic president to punish them for their 
 iniquities." 
 
 Ever since the Kevolution, and indeed before, the Con- 
 gregationalist, the " standing order," asit was often termed, 
 had been the dominant religious sect. It had become a spe- 
 cies of " State religion." Its ministers were nearly all Fed- 
 eralists, and its laymen largely so. But a few years before 
 this explosion, a representative man asserted, in a public 
 address, that there were in the denomination, in the State, 
 but two clergymen who were Anti-Federalists, and as pub- 
 licly urged that they should be ' ' cast out ' ' for their irre- 
 ligion in politics. 
 
 Taxation in those days was a grievous burden, and no part 
 of it was borne by the clergy. By a law passed in 1705 it 
 was made the duty of the freeholder who took the account for 
 the purposes of assessment to faithfully perform ' ' the trust," 
 " in going through the town," " to every inhabitant thereof, 
 to take a just and true account of each person's ratable 
 estate." By the act of May, 1719, it was made the duty of 
 the selectmen, in making their assessments, "to make perfect 
 lists under their hands, or the major part of them, setting 
 down every person's name and several proportion." By an 
 act of 12 Geo. II. it was provided "that the selectmen 
 and assessors of said towns, parishes, and precincts are 
 hereby authorized and enabled to assess the polls and estates 
 of the inhabitants within their respective districts, each one 
 according to his known ability, their proportion of all 
 province, charge and taxes yearly, upon the receipt of the
 
 CLERGY EXEMPTED FROM TAXATION. 71 
 
 treasurer's warrant, to be directed to the selectmen as has 
 been usual." Those acts did not exempt clergymen, or pro- 
 vide that they should not be deemed "persons." There 
 were other acts in a similar vein. 
 
 In Kelley v. Bean and others, selectmen of Warner, the 
 highest court in the State, at the May term, 1798, in Hills- 
 borough County, decided " that a minister of the church 
 and congregation in a town ' ' was not liable to be taxed. 
 
 In Kidder v. French, decided by the same court, in the 
 same county, at the April term, 1807, it was held by a 
 majority of the court that the estate of an ordained minister 
 of the gospel who is not settled over a corporate society was 
 not exempt from taxation. From this decision Wingate, J., 
 dissented. Chief Justice Smith was a liberal in his religfious 
 views and opinions. We undoubtedly owe to that fact, and 
 his influence with his associate, that they were not exempted 
 from taxation under all circumstances. The plaintiff, Kid- 
 der, failed because the pastoral relations between himself 
 ' ' and the church and town of Dunstable ' ' had been dis- 
 solved prior to the assessment of the tax. (Smith's N. H. 
 Rep. 155.) 
 
 In Moore v. Poole, decided by the Supreme Court, in the 
 same county, in December, 1815, upon a demurrer to the 
 declaration, the general doctrine of Kelley v. Bean was 
 affirmed. The demurrer was overruled, and the plaintiff 
 had judgment for $7.08. The court held that when an 
 assistant assessor of the United States direct tax enumerated 
 in the list of taxable property the real estate of a settled 
 minister, and a tax was afterwards assessed upon this list by 
 the principal assessor, and was collected, the minister's 
 land was exempt, and that he could maintain case against 
 the assistant assessor. The opinion was delivered by the 
 chief justice, and these cases are to be found in his MS. 
 reports. 
 
 There were other cases to the same import. All other 
 denominations had to support, not only their own church
 
 72 DAETMOUTH COLLEGE CAUSES. 
 
 organizations, but, through the " contract " system and the 
 tax power, were also compelled to contribute to the support 
 of this denomination as if they were members of it. By the 
 act of May, 1714, it was provided that every town, in town- 
 meeting, might by themselves, or by any other person 
 appointed, "agree with a minister or ministers for the 
 supply of such town, and what annual salary shall be 
 allowed him or them ; and the minister or ministers so made 
 choice of and agreed with shall be accounted the settled 
 minister or ministers of such town ; and the selectmen, for 
 the time being, shall make rates and assessments upon the 
 inhabitants of the town for the payment of the minister's 
 salary, as aforesaid, in such manner and form as they do for 
 defraying of other town charges. * * * Provided^ 
 always^ That this act do not at all interfere with her 
 majesty's grace and favor in allowing her subjects liberty of 
 conscience ; nor shall any person, under pretence of being 
 of a different perswasion, be excused from paying toward the 
 support of the settled minister or ministers of such town, 
 aforesaid ; but only such as are conscientiously so, and con- 
 stantly attend the publick worship of God on the Lord's day 
 according to their own perswasion, and they only shall be 
 excused from paying towards the support of the ministry of 
 the town." 
 
 "Sec. 2. And it is hereby further enacted and ordained, That 
 for building and repairing of meeting-houses, ministers' houses, 
 school- houses, and allowing a salary to a school-master, of each 
 town within this province, the selectmen, in their respective towns, 
 shall raise money by an equal rate and assessment upon the inhab- 
 itants, in the same manner as in this present act dire^^ted for the 
 maintenance of the minister." 
 
 The act of February 8, 1791, provided " that the inhabi- 
 tants of each town in this State, qualihed to vote as afore- 
 said, at any meeting duly and legally warned and holden in 
 such town, may, agreeably to the Constitution, grant and 
 vote such sum or sums of money as they shall judge neces-
 
 ONE SECT TAXES THE PEOPLE. to 
 
 sary for the settlement, maintenance, and support of the 
 ministry, schools, meeting-houses, school-houses, the main- 
 tenance of the poor, for laying out and repairing highways, 
 for building and repairing bridges, and for all the necessary 
 charges arising within the said town, to be assessed on the 
 polls and estates in the same town, as the law directs." 
 
 The same statute declared parishes with town privileges 
 towns. 
 
 The law of 1791 was, in practice, treated as a reaffirmance 
 of the prior law. Under these laws, " the Congregational 
 clergy in the State had been originally settled by the towns 
 or parishes where they preached, and the inhabitants were 
 all taxed for their support. But many individuals of their 
 congregations, having now become Baptists, Methodists, or 
 Universalists, were no longer willing to jjay for preaching 
 they did not attend. Property had been taken, in many 
 cases, on distraint, for taxes so assessed, and suits were 
 commenced to ascertain the rights of the parties." (Life of 
 Governor Plumer, 185.) 
 
 The Constitutions of 1784 and 1792, with the exception 
 of the disgraceful provisions (always a dead letter) which 
 prohibited Catholics from holding a few political offices, 
 put all religious denominations upon the same level. 
 
 They provided, — 
 
 " That the several towns, parishes, bodies corporate, or religious 
 societies shall at all times have the exclusive right of electing their 
 own pubhc teachers, and of contracting with them for their sup- 
 port and maintenance ; and no person of any one particular religious 
 sect or denomination shall ever be compelled to pay toward the 
 support of the teacher or teachers of another persuasion, sect or 
 denomination. 
 
 " And every denomination of Christians, demeaning themselves 
 quietly and as good subjects of the State, shall be equally 
 under the protection of the law ; and no subordination of any one 
 sect or denomination to another shall ever be established by 
 law. 
 
 "And nothing herein shall be understood to affect an}' former
 
 74 DARTMOUTH COLLEGE CAUSES. 
 
 contracts made for the support of the ministry, but all such con- 
 tracts shall remain and be in the same state as if this Constitution 
 had not been made." 
 
 These provisions wrought no essential change in these 
 settlements or the form of the contracts. As late as 1806, 
 one of the most important towns in the State " settled " a 
 clergyman, eminent for his scholarship, over the parish 
 where the writer dwelt in his boyhood, under a " contract " 
 
 vote *' that the town of pay $450 annually, for 
 
 preaching and attending to all the duties incumbent on a 
 settled minister of the gospel in said town, until two-thirds 
 of that part of the town denominated Congregationalists 
 shall wish to discontinue the salary ; and it shall be discon- 
 tinued in one year after a regular notification, in writing, 
 
 from the town to said , purporting such wish." He 
 
 retained this charge for about forty-six years. This instance 
 well illustrates the whole system in its best estate. Except 
 for such purposes of taxation, the existence of those who 
 were not Congregationalists was practically ignored. Those 
 who would not pay such taxes were harassed with suits. 
 Their difficulty was to satisfy courts and juries that they 
 were not making ' ' pretence of being of a different persua- 
 sion," etc. The astute counsel for the settled ministers 
 dragged into all these jury trials every conceivable ecclesias- 
 tical dogma and theological vagary, and the most subtle dis- 
 tinctions between baptism, immersion, etc., their point being 
 to induce the juries to hold that, for the purposes of church 
 taxation, everybody was a Congregationalist, though he 
 might not be for any other purjiose. " In one such case, 
 where the party resisting the tax was a Universalist, the 
 decision was against him. Judge Wingate charged the jury 
 that if the party claiming the exemption did not prove him- 
 self, in the words of the Constitution, to belong to ' another 
 persuasion, sect or denomination,' he was bound to pay his 
 tax for the support of the minister of the town ; and that, 
 to make him such, the difference must be something more
 
 JUDICIAL INJUSTICE. 75 
 
 than that which separated Calvinists from Universalists ; in 
 other words, that a person who believed in universal salva- 
 tion might, in the eye of the law, be of the same persuasion 
 with another who believed that not one in ten would be 
 saved. They agreed, said the judge, in more points than 
 they diflfered in. They were both Christians ; and the infer- 
 ence, somewhat harshly drawn, was that they were both 
 bound to support the same preacher." (Life of Plumer, 
 186.) 
 
 Wingate was a clergyman, and one of the judges of 
 the highest court, whose judicial life terminated in 1809. 
 Judge Farrar, one of the trustees, though more discreet 
 in their expression, shared and enforced the same general 
 views of Wingate. He was a judge of the same court 
 for about thirteen years, ending in 1803, and chief jus- 
 tice of the Common Pleas for more than three years, ending 
 in June, 1816. 
 
 With such judges, and juries who were not likely to agree 
 against a church of which, in general, a majority of them 
 were members, or in sympathy, the people were compelled 
 to pay "tithes" to the dominant sect, or to be ruined by 
 litigation. 
 
 Acts of incorporation in the interests of the " standing 
 order" were granted, but similar acts in the interests of 
 other denominations were denied. 
 
 When the College quarrel opened the breach, the other 
 denominations took courage and massed tosrether to wrino; 
 the legislation which followed — the College Acts, the laws 
 equalizing taxation, and " the Eeligious Toleration Acts" — 
 from the " standing order," which they succeeded in doing 
 in less than seven years. 
 
 The College was located on the border. The district was 
 the birthplace of secession ; prior to the Federal Constitu- 
 tion, the Confederacy had denied and defied the jurisdiction 
 of New Hampshire ; the liberals in politics and religion had 
 long regarded the institution as exclusive, aristocratic, and
 
 76 DARTMOUTH COLLEGE CAUSES. 
 
 the stronghold of Federalism and the " standing order," and 
 the leading Federalists and their organs had given Wheelock 
 the cold shoulder. The politicians were not slow to see the 
 drift, and took the rising tide. 
 
 Mason, the most sagacious of men, saw the gathering of 
 the elements, and in the circles where he moved, as in his 
 letter to his cousin Marsh, of August 15, 1815, warned them 
 of the consequences ; but the warning passed unheeded, and 
 the deluge came. 
 
 The Anti-Federalists put William Plumer, Jr., "the 
 Eppino* wizard," as he was termed by some of his oppo- 
 nents, who had been governor in 1812, again in the field. 
 
 In 1849, Webster, in a public address, said of his old 
 opponent : ' ' Governor Plumer is a man of learning and of 
 talent. He has performed important service in the Congress 
 of the United States. He has been many years governor 
 of the state of New Hampshire. He has lived a life of study 
 and attainment, and, I suppose, is, among the men now 
 living, one of the best informed in matters pertaining to the 
 history of his country. He is now more than ninety years 
 of age." (Life of Plumer, 518, 519.) 
 
 Plumer was a strong man and an eminent lawyer. When 
 a mere child he was a Baptist preacher, whose powers of 
 reasoning astonished even the veterans of his day. After- 
 wards he relapsed into the liberalism of Jeiferson, and took 
 to the law. 
 
 In the House, in 1791, Welman, an ex-preacher, moved 
 that any person " convicted of speaking disrespectfully of 
 any part of the Bible should have his tongue bored through 
 with a hot iron." (Life of Plumer, 112, 113.) Plumer, 
 by great exertions, succeeded in defeating its passage by a 
 small majority. In the same year, he was a member of the 
 convention which formed the Constitution of 1792. That 
 Constitution, which, with a single amendment, remained 
 unchanged until 1876, was popularly termed " Plumer' s 
 Constitution." " On the subject of religion he proposed,
 
 VIEWS OF GOYEUXOll TLUMER. 77 
 
 instead of the former provisions, an article securing to 
 every person in the State the inestimable privilege of wor- 
 shipping God in a manner agreeable to the dictates of his 
 own conscience ; and prohibiting the Legislature from com- 
 pelling any person either to attend any place of public wor- 
 ship, or to pay taxes for the building of churches, or for 
 the support of religious teachers, except in pursuance of his 
 own free act and agreement. This amendment was wide 
 enough to embrace the Roman Catholic, on the one hand, 
 and the Deist on the other." (Life of Plumer, 116, 117.) 
 This was defeated. He moved to abolish the relio-ious test 
 for office-holders, who were required by the Constitution to 
 be " of the Protestant religion." This provision vras at 
 first rejected, but afterwards adopted by the convention 
 though rejected by the people. " He refused, in the church- 
 tax cases, to be of counsel for any town or parish which 
 sought to compel men to pay taxes, contrary to their ^vill, 
 for religious purposes ; but offered his services readily to 
 those who claimed exemption from such taxes." He had 
 defied the judges. " During the session of the Superior 
 Court at Dover (February, 1799), Judge Livermore pri- 
 vately informed me," says Governor Plumer, "that his 
 brethren, Farrar and Wingate, had exj^ressed to him a 
 decided disapprobation of my constancy and zeal in support- 
 ing those who claimed exemption from taxes for the main- 
 tenance of clergymen. I replied I was sorry that any of the 
 court were so much in favor of supporting a privileged order ; 
 but that this circumstance, instead of checking, would 
 increase my exertions, and so long as I remained at the bar, 
 the court would find me a persevering and determined advo- 
 cate for the rights of conscience and of property, both 
 involved in these issues." (Life of Plumer, 185, 187.) 
 
 In his message to the Legishiture of June 6, 1816, Gov- 
 ernor Plumer said : " The rights of conscience and of private 
 judgment in religious matters are not only secured by our 
 Constitution to all men, but are, in their nature, inalienable.
 
 78 DARTMOUTH COLLEGE CAUSES. 
 
 Civil and religious liberty have usually flourished and expired 
 together. To preserve their purity requires the constant, 
 unremitted vigilance of the people and their legislators. If 
 any religious associations request acts of incorporation, to 
 enable them more fully and securely to enjoy their religious 
 privileges, it appears to be our duty to grant them. The 
 correctness of their tenets is a subject that lies between God 
 and their own consciences, and is one that no human tribunal 
 has any right to decide. While, therefore, it becomes 
 every man scrupulously to examine the foundations of his 
 own belief, he cannot guard with too much jealousy against 
 the encroachments of the civil power on his religious lib- 
 erties." 
 
 Emanating from almost any other source, the easy flowing 
 words of the message in relation to religious toleration would 
 have had little significance ; but coming from Plumer, it was 
 otherwise. 
 
 Everybody knew that he had been assailed without meas- 
 ure for these opinions ; that for more than a quarter of a 
 century he had been the unyielding, persistent, and unpaid 
 champion of religious toleration, and that his message was 
 the signal gun for an assault all along the line. The Legis- 
 lature promptly responded by passing acts of incorporation 
 in the interest of all denominations. 
 
 In the Senate, on June 27, 1816, an attempt was made to 
 engraft upon the College Act the anti-toleration views so 
 ofiensive to Plumer, by an amendment providing " that the 
 president and other executive officers of said University shall 
 be of the Protestant religion." This was defeated, four of 
 the senators, led by Bingham, — Webster's college chum 
 and intimate friend, — voting in the affirmative, and eight 
 in the negative. 
 
 The act amending the charter provided that ' ' perfect 
 freedom of religious opinions should be enjoyed by all the 
 students and officers of the University." 
 
 The rule which Governor Plumer observed in the appoint-
 
 RELIGIOUS TOLEKATION. 79 
 
 ment of trustees and overseers of Dartmouth University is 
 thus stated by his son : " He introduced men of both polit- 
 ical parties, and of all the prominent religious sects. The 
 College government had been hitherto Calvinistic in its 
 religion and Federalist in its politics. His appointments 
 brought both political parties into each board, without giving 
 any one religious sect the preponderance in either. Dr. 
 Parish having written to him, ex}3ressing the hope that a 
 man's being a Federalist would not prevent his being elected 
 an officer of the institution, he said, in reply : ' It has been a 
 subject of deep regret to me that the cause of Dartmouth 
 University has been considered a party question. My polit- 
 ical op23onents made it such, in hopes of obtaining supj)ort 
 of their party politics. But, had I the power of appointing 
 the officers of the University, I would select those men only 
 for office who are best qualified, without regard to the 
 religious sect or political party to which they are attached.' " 
 (LifeofPlumer, 439.) 
 
 On December 25, 1816, the Legislature passed an act 
 providing — 
 
 " That the real and personal estates of all ordained ministers of 
 the gospel, of every denomination, within this State, shall hereafter 
 be assessed and taxed in the same way and manner as other estates 
 are now, or hereafter may, by law, be taxed ; any law, usage or 
 custom to the contrary notwithstanding. Provided, nevertheless, 
 that nothing in this act shall be so construed as to affect any con- 
 tract, in writing, heretofore made between any town in this State 
 and the minister thereof." 
 
 After a most unprecedented struggle, this movement for 
 religious toleration culminated, in 1819, in Dr. Whipple's 
 Toleration Act. This was so called because Dr. Whipple, 
 the member from Wentworth, — member of Congress from 
 1822 to 1830, — was the author of its most vital provisions, 
 and supported it with great ability and eloquence. Its 
 passage marked an era in the religious and political history 
 of the State.
 
 80 DARTMOUTH COLLEGE CAUSES. 
 
 On June 22, 1819, Dr. Whipple proposed the following 
 amendment to the pending bill : — 
 
 And be it further enacted. That every religious sect or denom- 
 ination of Christians in this State may associate and form societies, 
 may admit members, may establish rules and by-laws for their 
 regulation and government, and shall have all the corporate pow- 
 ers which may be necessary to assess and raise money by taxes 
 upon the polls and ratable estate of the members of such associa- 
 tion, and to collect and appropriate the same for the purpose of 
 building and repairing houses for pubhc worship, and for the sup- 
 port of the preaching of the gospel ; and the assessors and col- 
 lectors of such associations shall have the same powers in assessing 
 and collecting said moneys, and shall be liable to the same penal- 
 ties, as similar town officers now have and are liable to. Provided, 
 That no person shall be compelled to join or support, nor be classed 
 with or associated to, any congregation, church, or religious so- 
 ciety, without his express consent first had and obtained. Pro- 
 vided, also, If any person shall choose to separate himself from 
 such society or association to which he may belong, and shall 
 leave a written notice thereof with the clerk of such society or 
 association, he shall thereupon be no longer liable for any future 
 expense which may be incurred by said society or association. 
 
 This amendment was supported by Ichabod Bartlett, coun- 
 sel for Judge Woodward and others, Dr. Whipple opening 
 and closing the debate. It was carried: yeas, 96; nays, 
 88. The passage of the act was treated with a storm of 
 denunciation. Its supporters were declared to be infi- 
 dels, — enemies of God and religion. It was said, " When 
 the wicked bear rule, the people mourn," and the people 
 were advised to burn their Bibles. But time, which tests 
 all things, demonstrated that this sect, like others, could 
 live, thrive, and prosper without the aid of what were virtu- 
 ally " forced loans."
 
 CHAPTER TV. 
 
 ORIGIN OF THE CONTROVERSY — THE TRUSTEES — THE WAR 
 OF THE PAMPHLETEERS — WHEELOCK RETAINS WEBSTER, 
 AND APPLIES TO THE LEGISLATURE — HEARING BEFORE 
 THE LEGISLATIVE COMMITTEE — WEBSTER FAILS TO 
 APPEAR — CORRESPONDENCE — REMOVAL OF WHEELOCK, 
 AGAINST THE ADVICE OF MASON — BROWN PUT IN WHEE- 
 LOCK'S PLACE. 
 
 The College troubles probably had their primal source 
 in the antagonisms, personal and otherwise, between the 
 elder Wheelock and Dr. Bellamy, the theological tutor of 
 Judge Niles. John Wheelock and Niles inherited their 
 views respectively from father and tutor. The rill fresh- 
 ened into a stream, and, gathering affluents on every hand, 
 finally swept all before it. 
 
 Niles became a trustee in 1793. Those who thoroughly 
 understood the natures of the two men must soon have 
 seen that it was only a question of time when one or the 
 other would be driven from the board. 
 
 The quarrel which resulted in the College causes came to 
 the surface in the Board of Trustees some twelve years 
 before the removal of the second Wheelock.^ Political dif- 
 ferences there had nothing to do with it, nor matters of faith ; 
 
 ^ Trustees of Dartmouth College : — 
 
 Name . Trustee from — to 
 
 Nathaniel Niles 1793-1821 
 
 Thomas W. Thompson 1802-1817 
 
 Timothy Farrar 1804-1826 
 
 Elijah Paine 1806-1828 
 
 John Taylor Oilman 1807-1819 
 
 Charles Marsh 1809-1849 
 
 Rev. AsaMcFarland 1809-1822 
 
 Rev. Seth Payson 1813-1820 
 
 Rev. Francis Brown 181.5-1819 
 
 Rev. John Smith 1811-1820 
 
 (81 
 
 Died. 
 
 Age. 
 
 1828 
 
 86 
 
 1817 
 
 51 
 
 1849 
 
 101 
 
 1842 
 
 85 
 
 1828 
 
 74 
 
 1849 
 
 83 
 
 1827 
 
 57 
 
 1820 
 
 62 
 
 1820 
 
 36 
 
 1831 
 
 65
 
 82 DARTMOUTH COLLEGE CAUSES. 
 
 for the board were nearly all rank Federalists, and differed 
 in form, only, as to church polity. 
 
 The Board of Trustees, etc., was, and for years had been, 
 a strange medley in composition, but as a whole the mem- 
 bers were endowed with remarkable intellectual gifts. 
 
 Judge Niles graduated at Princeton, in 1766. He was 
 the classmate and devoted friend of the elder Adams. In 
 theory, he was a follower of Calvin in theology and of 
 Jefferson in politics. He was a man of angles and opposites ; 
 a tactician, and an adept at what he termed " caucusing ;" a 
 manager of men ; one who read every thing, remembered 
 and questioned it. He was a member of the Legislature, 
 speaker of the House, six times a presidential elector, a 
 representative in Congress from 1791 to 1795, and one of 
 the judges of the Supreme Court of Vermont. He was an 
 inventor, manufacturer, poet, lawyer, priest, physician, and 
 metaphysician, — a man of great and varied powers. Jeffer- 
 son once said of him, " He was the ablest man I ever knew." 
 
 It will be long before the people of Vermont will forget 
 Captain Trotter's jest at his expense. 
 
 Judge Paine was born in Brooklyn, Connecticut, January 
 21, 1757, and graduated at Harvard, in 1781. 
 
 He was the first president of the Phi Beta Kappa Society 
 at Harvard, and pronounced the first oration before the 
 same. 
 
 Settling in Vermont, he was one of its pioneers, and was 
 farmer, road-maker, manufacturer, and lawyer. In 1786, he 
 was a member and secretary of the Convention called to revise 
 the State Constitution ; and in 1787, was elected to the State 
 Legislature, and was a member until 1791, when he was 
 appointed judge of the Supreme Court of Vermont. He 
 was one of the commissioners to settle the controversy be- 
 tween Vermont and New York in 1789, president of the 
 Vermont Colonization Society, and held many other respon- 
 sible positions. He was a senator in Congress from 1795 
 to 1801, when he was appointed by President Adams judge
 
 NILES PAINE MA1I8II THOMPSON. 83 
 
 of the District Court of Vermont, which brought him into 
 close connection with Judge Livingston, and which office 
 he held until his resignation in 1842. 
 
 He was a man of iron, and in physical and mental stature 
 a giant. It is said that his voice could be heard distinct 
 and audible three-fourths of a mile. Fair-minded, sincere, 
 and obstinate, by nature, he was in many respects the Drouet 
 of the board. 
 
 Judge Marsh, as he was popularly called, — he had from 
 the most creditable motives refused to accept the position 
 of chief justice of the Supreme Court of Vermont, — was a 
 man of immense ability, the cousin of Jeremiah Mason, and 
 the father of that eminent scholar and diplomatist, George 
 P. Marsh, long one of our foreign ministers. He was en- 
 dowed with an understanding of singular penetration, was 
 tenacious, a hater of what he termed demagogues, unspar- 
 ing in speech, trenchant ^vith the pen, ever on the alert, 
 unyielding and unfearing to the last degree, and an intense 
 Federalist. 
 
 None of these were New Hampshire men. 
 
 Thomas W. Thompson was born in Boston ; fitted for 
 college at Dummer Academy, in Byfield, in the town of 
 Newbury, Massachusetts, entered Harvard College in 1782, 
 received his degree in 1786, served in Shay's Rebellion, 
 studied theology, became a tutor in Harvard, read law at 
 Newburyi3ort with Chief Justice Parsons, and was admitted 
 to the bar early in 1791. In June, 1791, he removed to 
 Salisbury South Road, New Hampshire, and entered upon 
 the practice of the law. About a year later, he moved near 
 to the Webster place, in what is now Franklin, formerly 
 kno^^^l as the "Elms Farm," and now as the Orphans' 
 Home, — Richard Fletcher, afterwards one of the justices 
 of the Supreme Court of Massachusetts, taking Thompson's 
 place at the South Road in 1809. 
 
 Thompson was several times a meml)er of the State Legis- 
 lature from Salisbury and Concord ; was speaker of the
 
 84 DAKTMOUTH COLLEGE CAUSES. 
 
 House in 1814. In 1805-7, he was a representative, and 
 afterwards a senator, in Congress ; in 1809, he removed from 
 Salisbury to Concord, where he resided at the time of his 
 death. He was an eminent lawyer ; was, with Judge Web- 
 ster, an influential member of Parson Worcester's church ; 
 and the leading, managing politician of the Federal party 
 in New Hampshire. He was rich and courtly,^ a gentle- 
 man of the old school. He had been the patron and legal 
 instructor of Daniel Webster, and was one of his most inti- 
 mate friends. 
 
 Judge Farrar was another. He was a leading Federalist, 
 and the father of the second Judge Farrar, — who read law 
 with Webster, was his partner at Portsmouth from 1812 to 
 181 B, and one of the counsel in the case against Judge 
 Woodward. 
 
 Mills Olcott, the father-in-law of Rufus Choate, was an 
 eminent lawyer at Hanover. He was born at Norwich, Ver- 
 mont, and was a son of General Olcott, who was a member 
 of the Council and lieutenant-governor of that State. He 
 read law with Judge Jacob, of Windsor, Vermont, another 
 of the trustees ; w^as made secretary and treasurer of the 
 College, in place of Judge Woodward, by the old board, in 
 1816 ; and in 1821 w^as chosen trustee, which office he held 
 until his death, in 1845. He was the friend and special 
 attorney of William Smith, the famous Tory chief in New 
 York, afterwards chief justice in Canada ; was a jDromi- 
 nent Federalist, the intimate friend of Webster, and tainted 
 with the odor of the Hartford Convention. 
 
 Thompson and Olcott married sisters. They were men of 
 the same type, and their family and personal intimacy was 
 very close and confidential. 
 
 The rest were notable men. 
 
 Nothing short of divine power could control such men. 
 Dr. Wheelock, walking in the footsteps of his father, was 
 generally supported by a majority of the board till 1809, 
 when death and the influence of Judge Smith, who was then
 
 THE FARRARS OLCOTT THE PAMPHLETS. 85 
 
 governor of New Hampshire, gave a majority to his adver- 
 saries. After that, no friend of his was elected to the board. 
 For years there was a struggle on the part of Wheelock to 
 retain, and on the part of a minority, afterwards grown to a 
 majority, "to put down " what they termed the " domina- 
 tion " of "Wheelock. 
 
 Open hostilities broke out in April, 1815, by the publica- 
 tion of a pamj)hlet of eighty-eight pages, in the interest of 
 Wheelock, entitled, " Sketches of the History of Dartmouth; 
 College and Moor's Charity-School, with a Particular Ac- 
 count of Some Late Remarkable Proceedings of the Board 
 of Trustees, from the Year 1779 to the Year 1815." The 
 " Sketches " charged the trustees with the misappropriation 
 of the Phillips and other funds, and with withholding from 
 him several thousand dollars which Wheelock had allowed 
 to remain in their hands, subject to his right of future 
 appropriation, etc., etc. The trustees charged its author- 
 ship upon Dr. Wheelock, Col. Josiah Dunham, a noted 
 Federalist politician, and secretary of state of Vermont, who 
 wrote the letter of October 21, 1811, to Dr. McFarland, 
 and was familiar with the history of the College troubles, 
 and Rev. Dr. Elijah Parish. This was quickly followed, 
 on the same side, by a like pamphlet of thirty-two pages, 
 by Dr. Parish, entitled, " A Candid Analytical Review of 
 the ' Sketches of the History of Dartmouth College and 
 Moor's Charity-School, with a Particular Account of Some 
 Late Remarkable Proceedings of the Board of Trustees, 
 from the Year 1779 to the Year 1815.' " 
 
 These publications created a great sensation. The news- 
 papers took up the war, and made the most of it. Judge 
 Niles, the soul of the anti-Wheelock party, published a 
 series of elaborate articles in reply. In one of them, in a 
 two-column article published August 15, 1815, he says, in 
 reference to the facts stated in the " Sketches : " "I readily 
 admit that they [the trustees] have done the facts that are 
 charged."
 
 86 DARTMOUTir COLLEGE CAUSES. 
 
 Li 1815, Benoiii Dewey, James Wheelock, and Benjamin 
 J. Gilbert, a committee of the Congregational Church at 
 Hanover, replied to the " Sketches " in a pamphlet of sixty- 
 eight pages, entitled, " A True and Concise Narrative of 
 the Origin and Progress of the Church Difficulties in the 
 Vicinity of Dartmouth College, in Hanover," etc. In 
 August, 1815, the trustees published, in a pamphlet of one 
 hundred and four pages, " A Vindication of the Official 
 Conduct of the Trustees of Dartmouth College," etc., writ- 
 ten by Charles Marsh. In 1816, Peji^on R. Freeman, a 
 learned lawyer of the old school, soon afterwards appointed 
 clerk of Story's courts in New Hampshire, published, in 
 reply, a pamphlet of thirty-two pages, entitled, " A Eefu- 
 tation of Sundry Aspersions in the ' Vindication ' of the 
 Present Trustees of Dartmouth College on the Memory of 
 their Predecessors." In 1816, Col. Dunham also replied 
 in a pamphlet of ninety-five pages, entitled, " An Answer to 
 the ' Vindication of the Official Conduct of the Trustees of 
 Dartmouth College,' in Confirmation of the ' Sketches,' 
 with Remarks on the Removal of President Wheelock." 
 These documents contained charges and counter-charges, 
 criminations and recriminations, in abundance. 
 
 About the time of the publication of the " Sketches," 
 legal proceedings were threatened and seriously contem- 
 plated by Wheelock. He at once took steps to procure 
 counsel. There were obvious reasons why he should not 
 employ governor Plumer, Judge Smith, or Jeremiah Mason. 
 The feeble health of Plumer had driven him out of practice ; 
 Smith's vote, as ex officio trustee, in 1809, had delivered 
 Wheelock over to his enemies ; and Mason was the relative 
 and intimate friend of Marsh, one of the hostile majority. 
 
 Through a friend he applied to Webster, whose personal 
 sympathies were then, as they always were, with Wheelock, 
 for his " professional " assistance, which was promised. 
 In June following, Wheelock personally consulted Webster 
 with reference to his troubles with the trustees, retained
 
 WHEELOCK RETAINS WEBSTER. 87 
 
 him, and had paid him therefor. This, of course, was not a 
 formal retainer in the particuhir litigation which followed. 
 At the June session, 1815, the time of his consultation 
 with Webster, Dr. Wheelock followed up his charges with 
 the oft-threatened memorial to the Legislature, in which he 
 set forth that the trustees had "forsaken its original prin- 
 ciples, and left the path of their predecessors ;" that they 
 had, by improper "means and practices," "increased their 
 number to a majority controlling the measures of the 
 board;" "that they have applied property to purposes 
 wholly alien fi-om the intention of the donors ;" that they 
 have "transformed the moral and religious order of the 
 institution by depriving many of their innocent enjoyment 
 of rights and privileges for which they had confided in their 
 faith ; that they have broken down the barriers and violated 
 the charter by prostrating the rights with which it expressly 
 invests the presidential office." 
 
 He then charges misapplication of funds, and various 
 breaches of trust; and concludes with the prayer, "that 
 you would please, by a committee invested with competent 
 powers, or otherwise, to look into the affairs and manage- 
 ment of the institution, internal and external, already re- 
 ferred to ; and, if judged expedient, in your wisdom, that you 
 would make such organic improvements and model reforms 
 in its systems and movements, as, under Divine Providence, 
 will guard against the disorders and their apprehended con- 
 sequences." 
 
 In a remonstrance presented to the Legislature, June 19, 
 1816, by Thompson, Paine, and McFarland, in behalf of 
 the trustees, they say : — 
 
 " By a reference to the memorial, it will be seen that the trustees 
 are charged directly or indirectly with having exercised religious 
 intolerance ; with having systematically promoted one sect or 
 party, with political objects dangerous to government. Dr. Whee- 
 lock alleged in the said memorial that the trustees have misapplied 
 the funds of the college ; that they have invaded the rights of the
 
 88 DARTMOUTH COLLEGE CAUSES. 
 
 presidential office ; that they used improper means in the appoint- 
 ment of executive officers ; that they have formed an unjustifiable 
 connection with an academy ; and improperly furnished students 
 thereof with aid from the college treasury ; that they have ob- 
 sti'ucted the application of the funds of Moor's Charity-School, 
 according to their original destination ; that they have oppressed 
 him in the discharge of his office as president. These are heavy 
 charges ; and if they were founded in truth, the trustees deserve 
 the severest reprobation." 
 
 In spite of the strenuous opposition of the trustees, the 
 House, by a vote of one hundred and twenty-three to fifty, 
 granted the prayer of Wheelock, and a resolution to this 
 effect passed the Legislature, June 28, 1815. Governor Gil- 
 man appointed Daniel A. White, Nathaniel A. Haven, both 
 intimate friends of Webster, and Ephraim P. Bradford, a 
 committee ' ' to investis-ate the concerns of Dartmouth Col- 
 lege and Moor's Charity-School," etc. The hearing was 
 had before this committee, commencing August 16, 1815. 
 Before Wheelock knew that the committee had accepted, a 
 portion of the trustees called upon the chairman, and had 
 the time of hearing fixed. He first learned of it acciden- 
 tally. As soon as he heard ofllcially of this hearing, he, in 
 consequence of his consultation with Webster, and retainer, 
 applied to him for assistance before this committee, in a 
 letter dated at Dartmouth College, August 5, 1815, in which 
 he says : — 
 
 I take the earliest moment to inform, that the Hon. Mr. White 
 has communicated by his letter, dated the 2d inst., the assignment 
 made by the committee of the State, to meet, here, on Wednes- 
 day, the week preceding commencement, which will be a week from 
 next Wednesday, on the business for which they were appointed. 
 
 It is needless to say how highly we appreciate your distin- 
 guished talents and virtues, in whatever concerns the interests of 
 literature, & the happiness of society. You will permit me to 
 express my ardent desire, that you would make it consistent to be 
 here in season to conduct the interesting public cause of truth and 
 justice, in which a sense of duty has led me to be concerned.
 
 CORRESPONDENCE. 89 
 
 It would be gratifying and useful could you find it convenient 
 to be here by next Saturday, or as long before the meeting as may 
 be. I much regi-et that the period is so short, and that there was 
 no ground for my giving you information before this instant, as I 
 have made dependence on you as counsellor agreeably to our con- 
 sultation at Concord. 
 
 The position and relations of the great object are much as 
 when I had the pleasure of seeing you. 
 
 I entreat your goodness not to fail. You will please to consider 
 me responsible to remunerate you honorably to your satisfaction. 
 With sentiments of very cordial and great respect, I am 
 Dear sir. 
 
 Your obliged friend, 
 
 & obedient servant, 
 
 John Wheelock. 
 P. S. — I hope the enclosed will reach your hand, $20. 
 
 For a copy of this letter we are indebted to the courtesy 
 of the officers of Kenyon College, Gambler, Ohio. 
 
 Webster failed to appear, and Wheelock, with but a day 
 and a half in which to procure counsel and prepare for it, 
 went on with the hearing with such assistance as he could 
 obtain. 
 
 Webster's reasons for this course appear in Thompson's 
 famous letter to Professor Adams, of July 13, 1815, and 
 Webster's letter to Dunham, of August 25, 1815. Thomp- 
 son says : — 
 
 I have had a long conversation with Mr. D. W , by which 
 
 it appears, that a strong desire prevails, that the Reply, with the 
 Committee's Report, should effectually put down a certain man. 
 Mr, TF., Dr. McFarland and /, are very desirous that affidavits 
 should be immediately taken, relative to such facts as will show 
 that person's character in a just point of view. I can't name all 
 the points to which the testimony should be directed ; but you and 
 our friends must hold a conversation and select such points as will 
 be productive of the greatest effect. Full and satisfactory testi- 
 mony should be taken relative to the usury, and particularly Mr. 
 Kellogg' s deposition.
 
 90 DARTMOUTH COLLEGE CAUSES. 
 
 It will be very useful to obtain testimony (or documents, if 
 practicable) to show that the college had to pay Col. Kinsman 
 
 $ , in consequence of the executive neglecting to enforce the 
 
 laws and orders of the trustees. Testimony should be had of 
 every trick, contrivance and management of his, to show his true 
 character. 
 
 On the part of our friends at Hanover, great, unceasing, and 
 systematic efforts should be made to collect evidence. It is 
 impossible for the trustees to collect it but through our friends. 
 The expense must he CLUBB'D amongst us. 
 
 I intend, if possible, to collect testimony here, to show that 
 with the democrats he was a democrat — with every sect of 
 religionists he was one of them — with federalists he was a feder- 
 alist, and thus he descended to base means to make influence. 
 
 I have a scrap of the envelope of the communication to the 
 Repertory, which will show the handwriting. I wish not to com- 
 municate my suspicions, until I exhibit at the commencement. I 
 can say thus much, I think the writer is a president's man. Per- 
 haps this ought not to be mentioned just yet. 
 
 I shall depend much upon the exertions of our friends to 
 procure evidence, and shall be much disappointed, if it is not 
 immediately and effectually attended to. 
 Your friend, 
 
 [Signed] Tho. W. Thompson. 
 
 No notice to the president will be necessary. 
 
 The animus of this letter is too obvious for comment. It 
 is to be borne in mind that Mr. Thompson had been an emi- 
 nent lawyer ; that he was professedly a devoted Christian ; 
 that this letter was written by him to one of the most bitter 
 and active of Wheelock's enemies, knowing him to be 
 such ; that he proposed to. share the expense of hunting up 
 testimony against a person upon whom he was to sit in 
 judgment, and whom he had predetermined to *' put down ; " 
 and that he was apparently the inventor of the rule that no 
 notice should be given to Wheelock. Everybody knew that 
 D. W. meant Daniel Webster, and that Wheelock was the 
 man to be " put down." That this letter correctly repre-
 
 THOMPSON WEBSTER DUNHAM . 9 1 
 
 sented Mr. Webster and his purposes, and that they were 
 precisely the reverse of those entertained by Mason, is not 
 open to doubt. 
 
 This letter was a bombshell in the Wheelock camp. On 
 account of this, Dunham wrote his fiery letter to his per- 
 sonal and political friend "Webster, giving the Wheelock 
 view of his conduct, to which Webster replied as follows ; 
 " On the subject of the dispute between the president 
 and the trustees, I am as little informed as any reading 
 individual in society ; and I have not the least inclination to 
 espouse either side, except in proceedings in which my 
 services may be professional. It was intimated to me last 
 spring, that the president might possibly institute process 
 against the trustees for the recovery of money due him from 
 them ; that proceedings might also be commenced in the 
 courts of law, to determine whether there had been a per- 
 version of the Phillips fund ; and that in case these events 
 should happen, the president would be glad to engage my 
 assistance as counsel. At Concord, the president suggested 
 in general terms, that he might wish to obtain my profes- 
 sional assistance on some future occasion, which I readily 
 promised him. After Dr. Haven had left this place for 
 Hanover, I received the president's letter, desiring me to 
 be at Hanover at a time which had then already elapsed. I 
 answered it by mail, not quite so soon as I should have done 
 if I had not expected some private conveyance, and if I had 
 not known that an answer by any conveyance would have 
 been wholly immaterial at that time. If I had received it 
 earlier, I could not have attended, because the court enorao;ed 
 me at home ; and I ought to add here, that if I had had no 
 other engagements at the time, and had also been seasonably 
 notified, I should have exercised my own discretion about 
 undertaking to act a part before the committee at Hanover. 
 I regard that as no professional call. * * * 
 
 " As to what you are pleased to say about my extricating 
 myself from this affair, or of its being otherwise unpleasant
 
 92 DARTMOUTH COLLEGE CAUSES. 
 
 to me, as also what you observe of a suspicion entertained 
 by some that Mr. Thompson had employed me to feel of 
 Mr. Haven on the subject, give me leave to say that I should 
 know better how to answer these remarks if I were not 
 writins: to one for whom I have the hio;hest and warmest 
 esteem, and of whose sense of delicacy and propriety very 
 few certainly at any time have had occasion to complain. 
 
 " I am not quite so fully convinced as you are, that the 
 president is altogether right, and the trustees altogether 
 wrong. * * * You may be well assured that in our 
 nomination of governor we have regarded nothing but the 
 political interests of the State. I can but flatter myself 
 that if you were better acquainted ^vith the circumstances 
 you would think less unfavorably of the conduct of your 
 Federal friends." (1 Webster's Priv. Cor. 251.) 
 
 Governor John Taylor Gilman had exceptional popularity, 
 and was a fast friend of Wheelock. The political allusion 
 in Webster's letter refers to the well-known conviction of 
 Wheelock and his friends that Thompson and other leading 
 Federalists had determined to force Gilman into retirement, 
 and to put the elder Farrar, hostile to Wheelock, in his place. 
 
 A few men, led by Webster, Thompson, and others, con- 
 trolled the organization of their party, and moulded its 
 policy to suit themselves. In important matters they per- 
 sonally wrote the leaders, and directed what the editors 
 should say. A mass of correspondence shows that the most 
 persistent efforts were made to compel Farrar to accept the 
 nomination, contrary to every inclination, and thus j)ut doAvn 
 Gilman, who did not desire the position, but whose friends 
 did not wish him driven from it. 
 
 Putting a modest estimate upon his powers, and feeling 
 the infirmities of age creeping on, Farrar firmly declined. 
 
 Webster was under great obligations to Farrar, for in one 
 sense he was the founder of Mr. Webster's political fortunes ; 
 and he could do nothing but acquiesce in the declination. 
 How he felt about it, in some respects, is shown in his letter
 
 GOVERNOR OILMAN — THE ELDER EARRAR. 93 
 
 from Washington to Moody Kent, dated February 5, 1815, 
 in which he says : "I exceedingly regi-et the state of things 
 in N. Hampshire, respecting governor. It is just what I 
 expected from the resolution taken to support Gov. Gilman 
 again, & compel him to stay in the chair against his will. 
 We must sometime bring forward a new candidate. When 
 can it be probably done better than it could this year ? As 
 it is I hope Gov. G. ^all bo chosen, & that all possible exer- 
 tions will be used to reconcile those who feel dissatisfied, & 
 to give him the undivided support of the Federalists. But 
 it is a very bad business. 
 
 < ' You will see by the papers that the British army has 
 been repulsed with great loss in an attack on Jackson's 
 lines. Unless something signal is done by the fleet, New 
 Orleans will be safe. At present the prospect is very 
 favorable. 
 
 " The celebrated John Randolph of Roanoke is a lodger 
 in this house (Crawford's) . All the descriptions I had reed. 
 of his personal appearance gave me no correct impression. 
 I should probably fail in attempting to describe him to you. 
 He is tall ; say, a little more than six feet, legs rather long, 
 in proportion to his body. He is slender — somewhat l)road 
 over the shoulders ; but thin, his face rather flat & broader 
 than you have probably imagined, complexion sallow, and 
 skin wrinkled. His eyes not large, very black & sparkling 
 & placed a pretty good distance apart. Nose short & regu- 
 lar. His hair is suffered to grow long all over his head & 
 is gathered & tied up with a ribbon Ijehind. His coun- 
 tenance is older than I expected to see it. The sallow & 
 wrinkled appearance, something such as we never or seldom 
 see in N. E. is not unfrequent among the sedentary men of 
 Virginia & I suppose other Avarm climates. So much for 
 the person of Mr. Randolph. He is now on his return 
 home from the northward. He is to take the field agt. 
 Eppes in the spring, & his friends generally think he will 
 succeed in the election. They say he would certainly if he
 
 94 DARTMOUTH COLLEGE CAUSES. 
 
 would take unusual pains, but he seems disinclined to make 
 much exertion for himself, 
 
 " The day after to-morrow or thereabouts I expect to 
 leave here for home in order to be there the first day of the 
 court when I hope to see you." 
 
 A portion of this letter is not pertinent to the matter in 
 hand, but is so characteristic that we insert it. 
 
 That Thompson wrote the truth to Adams admits of no 
 doubt. That Webster did not meet the issue raised by that 
 letter squarely, is too plain for cavil. The key to this course 
 lies in the fact that Webster's most devoted friends and 
 political adherents were hostile to Wheelock. Their per- 
 sonal influence, and political complications and considera- 
 tions, detached him from Wheelock, in the teeth of his 
 sympathies and against his convictions. Webster was 
 severely criticised for retaining the money and acting cov- 
 ertly, and afterwards openly, for the other side. For obvious 
 reasons, he did not afterwards appear openly for the College 
 in the suit brought against it by Dr. Allen and Mrs. Whee- 
 lock, for the money due his estate, and for his personal 
 services. 
 
 This explosion ended the "professional " relations between 
 Dr. "VATieelock and Mr. Webster, and, in the belief of the 
 writer, added by construction another provision to the Con- 
 stitution of the United States, and changed the public law 
 of the Union. 
 
 The committee of investigation made their report, a digest 
 of facts some forty pages in length, on April 23, 1816, to 
 Governor Oilman. On June 7, 1816, it was laid before the 
 Legislature by Oovernor Plumer. 
 
 On August 15, 1815, after the letter from Thompson 
 to Adams, Mason wrote to his cousin Marsh in relation 
 to the proposed removal of Wheelock : "In common 
 with many others I have felt considerable anxiety for the 
 issue of the matter so much in public discussion relative 
 to Dartmouth College. I do not feel either inclined or
 
 mason's advice. 95 
 
 competent to give any opinion as to the course which ought 
 finally to be adopted by the Board of Trustees for the 
 benefit of that institution. I am entirely willing to leave 
 that to the determination of those much better informed 
 on the subject and better able to judge. From certain 
 intimations which I have lately had, I am led to believe 
 an intention is entertained by some members of the board 
 of ending all difficulty ^vith the President by removing him 
 from office. I greatly fear such a measure adopted under 
 present circumstances, and at the present time, would have 
 a very unhappy effect on the public mind. An inquiry is 
 now pending, instituted after considerable discussion, by 
 the Legislature of this State, apparently for the purpose of 
 granting relief for the subject-matter of complaint. The 
 trustees acquiesce in this inquiry ; whether they appear 
 before the committee appointed to make it formally as a 
 body, or informally as individuals, the public will not 
 deem of much importance. The Legislature, I think, for 
 certain purposes, have a right to inquire into an alleged 
 mismanagement of such an institution, a visitorial power 
 rests in the State, and I do not deem it important for my 
 present view to determine in what department or how to be 
 exercised. The Legislature may on proper occasion, call it 
 into operation. I have never seen the President's memorial 
 to the Legislature, but am told it is an abstract from the 
 'pamphlet of sketches.' From the statements in that I 
 take the burthen of his complaint to be, that the trustees 
 have not given him a due and proper share of power and 
 influence in the concerns of the College, and that they have 
 improperly used their own power, and influence in patron- 
 izing and propagating in the College particular theological 
 opinions. The alleged misapplication of funds is stated as 
 an instance of such misconduct. These opinions, it would 
 seem, are particularly disagreeable to the President. The 
 whole dispute is made to have a bearing on the President 
 personally.
 
 96 DARTMOUTH COLLEGE CAUSES. 
 
 " Should the trustees, during the pendency of the inquiry 
 in a cause in which they are supposed to be a party, take 
 the judgment into their own hands, and summarily end the 
 dispute by destroying the other party, they will offend and 
 irritate at least all those who were in favor of making the 
 inquiry. Such will not be satisfied with the answer that the 
 trustees have the power and feel it to be their duty to exer- 
 cise it. It will be said that the reasons which justify a 
 removal (if there be any) have existed for a long time. A 
 removal after so long forbearance, at the present time, will 
 be attributed to recent irritations. 
 
 " That part of the President's complaint which relates to 
 his religious grievances addresses itself pretty strongly to 
 the prejudices and feelings of all those opposed to the sect 
 called orthodox. This comprises all the professed friends 
 of liberal religion, most of the Baptists and Methodists, and 
 all the nothingarians. The Democrats will be against you, 
 of course. All these combined would compose in this State 
 a numerous and powerful body. Any measure adopted 
 by the trustees with the appearance of anger, or haste, will 
 be eao-erlv seized on. If the statements of the President 
 are as incorrect as I have heard it confidently asserted, an 
 exposure of that incorrectness will put the public opinion 
 right. It may require time but the result must be certain. 
 If it can be shown that his complaints are nothing but 
 defamatory clamor, he will be reduced to that low condition 
 that it will be the interest of no sect or party to attempt to 
 hold him up. I see no danger in delay but fear much in 
 too great haste. Perhaps there is no occasion at present to 
 determine how long the trustees should delay adopting their 
 final course. Circumstances may render that expedient at 
 a future time which is not now. I feel much confidence that 
 a very decisive course against the President by the trustees 
 at the present time would create an unpleasant sensation in 
 the public mind, and would, I fear, be attended with un- 
 pleasant consequences.
 
 REMOVAL OF "WHEELOCK. 97 
 
 " I am sensible I have expressed my opinion very strongly 
 on a subject in which I have only a common interest. I 
 frankly confess 1 have been somewhat influenced by fears 
 that some of the trustees will find it difficult to free them- 
 selves entirely from the effects of the severe irritation they 
 must have lately experienced." 
 
 The trustees, disregarding the advice of Mason, and 
 without waiting for the report of the investigating com- 
 mittee, on August 20, 1815, — the day after AVebster's 
 letter to Dunham, — upon the motion of Judge Paine, 
 proceeded to carry out the programme laid down by 
 Thompson in his letter to Adams. 
 
 The following is a record of their actions, as written down 
 by themselves : — 
 
 A Report of a Committee of the Board of Trustees having 
 been accepted, stating the evidence they had received that Presi- 
 dent Wheelock had an agency in writing and publishing the pam- 
 phlet entitled " Sketches of the History of Dartmouth College," 
 &c., and the President having presented to the Board a written 
 representation in the nature of a plea to the jurisdiction of the 
 court, the following Resolutions were introduced by Judge Paine, 
 President Wheelock was served with a copy, and inquired of, at 
 different times, if he had any communication to make to the 
 Board on the subject, or wished time for consideration. — His 
 answers were evasive. The truth of the allegations in the pre- 
 amble to the Resolutions, not being questioned by President Whee- 
 lock or any member of the Board, the Resolutions were then 
 
 adopted. 
 
 Dartmouth College, August 2G, 1815. 
 
 Cases sometimes occur, when it becomes expedient that cor- 
 porate bodies, whatever confidence they may feel respecting the 
 rectitude and propriety of their own measures, should explain the 
 grounds of them to the public. Such an explanation becomes 
 peculiarly important when the concerns committed to their care 
 are dependent on public opinion for their prosperity and success. 
 Into such a situation the Trustees of Dartmouth College consider 
 themselves now brought. Under a sense of this duty, the}^ have 
 already cheerfully submitted their past acts to the inspection of a
 
 98 DARTMOUTH COLLEGE CAUSES. 
 
 Committee of the Legislature of tlie State ; and from a similar 
 view of that duty, they now proceed to state the reasons that lead 
 them to withdraw their further assent to the nomination and 
 appointment of Doct. John Wheelock to the Presidency of Dart- 
 mouth College. 
 
 First. He has had an agency in publishing and circulating a 
 certain anonymous pamphlet, entitled, " Sketches of the History 
 of Dartmouth College and Moor's Charity-School," and espoused 
 the charo^es therein contained before a Committee of the Legisla- 
 lure. Whatever might be our views of the principles which had 
 gained an ascendancy in the mind of President Wheelock, we 
 could not, without the most undeniable evidence, have believed 
 that he could have communicated sentiments so entirely repugnant 
 to truth, or that any person who was not as destitute of discern- 
 ment as of integrity, would have charged on a public body as a 
 crime those things which notoriously received his unqualified con- 
 currence, and some of which were done by his special recommen- 
 dation. The trustees consider the above mentioned publication 
 as a gross and unprovoked libel on the Institution ; and the said 
 Dr. Wheelock neglects to take any measures to repair an injury 
 which is directly aimed at its reputation, and calculated to de- 
 stroy its usefulness. 
 
 Secondly. He has set up and insists on claims which the 
 charter by no fair construction does allow — claims which in their 
 operation would deprive the corporation of all its powers. He 
 claims the right to exercise the whole executive authority of the 
 College, which the Charter has expressly committed to the Trus- 
 tees, with the President, Tutors and Professors by them ap- 
 pointed. He also seems to claim a right to control the Corpora- 
 tion in the appointment of Executive officers, inasmuch as he has 
 reproached them with great severity, for choosing men who do not 
 in all respects meet his wishes, and thereby embarrasses the pro- 
 ceedings of the Board. 
 
 TJiirdly. From a variety of circumstances the Trustees have 
 had reason to conclude that he has embarrassed the proceedings of 
 the executive oflScers by causing an impression to be made on the 
 minds of such students as have fallen under censure for trans- 
 o-ressions of the laws of the Institution, that if he could have had 
 his will they would not have suffered disgrace or punishment.
 
 REASONS FOR THE REMOVAL. 99 
 
 Fourthly. The Trustees have obtained satisfactory evidence, 
 that Dr. Wheelock has been guilty of manifest fraud in the 
 application of the funds of Moor's School, by taking a youth 
 who is not an Indian, but adopted by an Indian tribe under an 
 Indian name, and supporting him on the Scotch fund, which is 
 granted for the sole purpose of instructing and civilizing Indians. 
 
 Fifthly. It is manifest to the trustees that Dr. Wheelock litis, 
 in various ways, given rise and circulation to a report, that the 
 real cause of the dissatisfaction of the Trustees with him was a 
 diversity of religious opinions between him and them, when in 
 truth and in fact no such divei'sity was known, or is now known to 
 exist, as he has publicly acknowledged before the Committee of 
 the Legislature appointed to investigate the affairs of the College. 
 
 The Trustees adopt this solemn measure from a full convic- 
 tion that the cause of truth, the interest of this institution, and of 
 science in general, require it. It is from a deep conviction that 
 the College can no longer prosper under his presidency. They 
 would gladly have avoided this painful crisis. From a respect to 
 the honored Father of Dr. Wheelock, the Founder of this Institu- 
 tion, they had hoped that they might have continued him in the 
 Presidency as long as he was competent to discharge its duties. 
 
 They feel that this measure cannot be construed into any dis- 
 respect to the Legislature of New Hampshire, whose sole object 
 in the appointment of a committee to investigate the affairs of the 
 College must have been to ascertain if the Trustees had forfeited 
 their charter, and not whether they had exercised their charter 
 powers discreetly, or indiscreetly — not whether they had treated 
 either of the executive officers of College with propriety or impro- 
 priety. — They will ever submit to the authority of law. The 
 Legislature have appointed a committee to examine the concerns 
 of the College and the school generally'. The Trustees met that 
 committee with promptitude, and frankly exhibited every measure 
 of theirs which had been a subject of complaint, and all the con- 
 cerns of the institution as far as their knowledge and means 
 would permit. They wish to have their acts made as public as 
 possible. The committee of the legislature will report the facts, 
 and the Trustees will cheerfully meet the issue before any tribunal 
 competent to try them according to the principles of their charter. 
 
 They consider this crisis as a severe trial to the institution ;
 
 100 DARTMOUTH COLLEGE CAUSES. 
 
 but they believe that in order to entertain a hope that it will 
 flourish and be useful they must be faithful to the trust — that they 
 must not approve of an officer who labors to destroy its reputa- 
 tion, and embarrass its internal concerns. They will yet hope 
 that under the smiles of Divine Providence, this institution will 
 continue to flourish, and be a great blessing to generations to come. 
 
 Therefore, 
 
 Resolved, That the appointment of Dr. John Wheelock to the 
 Presidency of this College, by the last will of the Rev. Eleazar 
 Wheelock, the Founder and first President of this College, be, and 
 the same is hereby, by the Trustees of said College, disapproved. 
 And it is further — 
 
 Resolved, That the said Dr. John Wheelock, for the reasons 
 aforesaid, be, and he is hereby, displaced and removed from the 
 office of President of said College. 
 
 Resolved, That for the reasons before stated, the said Trustees 
 deem the said Dr. John Wheelock unfit to serve the interests of 
 the College as a Trustee of the same, and that, therefore, he be 
 displaced and removed from the said office of Trustee of said 
 College ; and that the Trustees will, as soon as may be, elect and 
 appoint such Trustee as shall supply the place of the said Dr. 
 John Wheelock as a trustee. 
 
 Resolved, That for the reasons aforesaid, the said Dr. John 
 Wheelock be, and he is hereby, removed from the office of Pro- 
 fessor of History in this College. 
 
 Two of the trustees, Johu T. Gilman, the governor of 
 New Hampshire, and Judge Jacob, of Vermont, protested 
 against the action of the trustees : first, because under 
 the circumstances they had no jurisdiction ; and, second, 
 because no evidence was adduced to support any of 
 the charges. They conclude their protest in the follow- 
 ing pointed language : " Whatever evidence might exist in 
 the minds of the framors of the resolutions, in proof of the 
 allegations contained in the preamble, no evidence was laid 
 before the board respecting the same ; nor any papers 
 whatever relating thereto ; not even respecting the severe 
 charge of ' manifest fraud ' in the application of the funds 
 of Moor's School."
 
 PROTEST OF GOVERNOR OILMAN AND JUDGE JACOB. 101 
 
 Wheelock was removed on Saturday ; and on the Monday 
 following, K.GV. Francis Brown was put in his place. 
 
 Ml-. Brown was born January 11, 1784, in Chester, New 
 Hampshire, where Judges Bell and Richardson so long 
 resided, and made his home there till about 1810. He 
 gi'aduated at Dartmouth College in 1805, spent the follow- 
 ing year in the family of Judge Paine, one of the trustees 
 of the College, as a private tutor, and for the next three 
 years was a tutor in Dartmouth, pursuing at the same time 
 his theological studies. 
 
 On his twenty-sixth birthday he was ordained, and 
 became pastor of the Congregational Church, at North 
 Yarmouth, Maine. He was soon after chosen professor of 
 languages at Dartmouth, a position he was compelled to 
 decline. For five years he labored with great zeal and 
 success at North Yarmouth. He was inaugurated president 
 of Dartmouth, September 27, 1815, and died July 27, 
 1820. 
 
 He was a close student and an excellent scholar ; a man 
 of strong intellect and firm convictions, — circumspect, cour- 
 teous, patient, pertinacious ; a keen obseiwer of men, and an 
 astute diplomat : but the schemes with which his name 
 is intimately connected, for attempting to overawe the 
 State court, and manipulating the press and certain judges 
 of the Supreme Court of the United States, probably origi- 
 nated in other minds than his. Made the head of the Col- 
 lege at the early age of thirty-one, and in the midst of a 
 tempest, he exhibited rare tact and administrative genius. . 
 
 From nature, alleged personal grievances, associations, 
 religious training, and his views as to church polity, he was 
 an anti-Wheelock man.
 
 CHAPTEK V. 
 
 THE QUARREL BECOMES A POLITICAL ISSUE — GOVERNOR 
 PLUMER: HIS NOMINATION, ELECTION, AND MESSAGE — 
 STRUGGLE IN THE LEGISLATURE — THE BELL PASSES- 
 CORRESPONDENCE— MOVEMENTS TO CONTROL THE PRESS — 
 OLD TRUSTEES HESITATE— THEY REFUSE TO ACCEPT THE 
 ACT — TRUSTEES AND OVERSEERS OF THE UNIVERSITY 
 APPOINTED — THEIR MEETINGS FAIL FOR WANT OF A 
 QUORUM — PROCEEDINGS OF OLD TRUSTEES AND THE UNI- 
 VERSITY BOARDS — OPINION OF THE SUPERIOR COURT OF 
 JUDICATURE — MESSAGE OF NOVEMBER 20, 1816 — LEGISLA- 
 TION OF DECEMBER, 1816— VACANCIES FILLED — ADDRESS 
 TO PUBLIC BY OLD TRUSTEES — WHEELOCK'S DEATH- 
 GIVES FORTY THOUSAND DOLLARS TO THE UNIVERSITY. 
 
 So FAR, this had been a controversy among Calvmists and 
 Federalists. It had originated among those professing the 
 same religious faith — between the Federalist trustees of a 
 Federalist college. A Federalist governor had appointed 
 an investisratino; committee, under the vote of a Federalist 
 Legislature, upon a memorial of the Federalist Wheelock. 
 But other forces were soon to make themselves felt. The 
 Anti-Federalists had again nominated Plumer for governor. 
 He had long been in political life, a senator in Congress, 
 and for many years had been one of the pillars in the great 
 Federal triumvirate — Smith, Mason, and Plumer — which 
 controlled the State. But the troubles with Great Britain 
 which preceded the war of 1812 carried him over to the side 
 of Jefterson. He lacked the affluent learning of Smith, and 
 the original power of Mason ; he had little of their aptitude 
 with the pen ; he was no orator ; but his industry, thorough- 
 ness of preparation, great knowledge of men, and vigor of 
 
 (102)
 
 GOVEUXOR PLUMER WEBSTER's TLAN. 103 
 
 understanding enabled him to compete successfully with 
 them and Webster. His private life was stainless. He 
 possessed great moral courage and independence, and yet 
 he was the Nestor of the politicians of his day. His sym- 
 pathies were naturally, as they were openly, with Wheelock. 
 A heated political contest came on. Under the ban in their 
 own party, Wheelock' s friends, by the hundred, voted 
 steadily for Plumer. The strong man carried the party on 
 his back, and was elected by a handsome majority. 
 
 Brown, Thompson, and Webster at last saw what was com- 
 ing, and made ready, as best they could, to avert the storm. 
 
 Webster, in his letter of June 4, 1816, to Brown, says : 
 " I received yours last evening. You do not feel a stronger 
 wish than I do that nothing may take place at this session 
 detrimental to the College, and I am willing to do an3^hing 
 in my power to soften the irritated feelings of Democracy 
 towards it. I am under engagements to go to Boston 
 to-morrow, and shall be in that town four or five days. 
 From Boston I can go direct to Concord, if it should be 
 thought useful. Mr. Mason will go up, I believe, the first 
 of next week. I have some hope that the Legislature will 
 do nothing, partly because I hope they will be satisfied in 
 some measure with the report, and partly from the hopeless 
 state of Dr. W.'s health. It is a favorite idea with some 
 to create a new college. Would it not be well if this idea 
 could be encouraged and to let the ill-humors work off in 
 that direction? Suppose a proposition should be made for 
 a committee to report at next session, upon the expediency 
 of making a new college at Concord, and what donations, 
 &c., could be obtained for such an object. 
 
 " 'Resolved, That a joint committee of both Houses be ap- 
 pointed to take into consideration the expediency of estabUshing 
 a seminary of learning, in some part of this State, to be called 
 the University of New Hampshire, and to ascertain what endow- 
 ment for such institution could be obtained from private donation, 
 and also what grants of land or money could be properly and
 
 104 DARTMOUTH COLLEGE CAUSES. 
 
 conveniently made to the same by the State ; and also to prepare 
 a draft of a charter for such seminary, and to report at the next 
 session of the Legislature.' 
 
 *' Perhaps if something of this sort should be brought 
 forward by somebody who has been favorably inclined to 
 Dr. AY., but who would wish to prevent violent measures, 
 it might do good. 
 
 <' Mr. Tilton, of Exeter, I should think, might do it to 
 advantage. Think of this ; Mr. Cutts, the bearer of this, 
 is an intelligent friend of mine, and capable of being useful 
 at Concord. I recommend it to you to cultivate his ac- 
 quaintance, while there. He is intimate with Mr. Tilton, 
 and indeed with most other leading men in the Legislature. 
 Anything that shall postpone the subject, will give time for 
 the present feelings to cool and evaporate. 
 
 <' N. B. The resolution might say the charter should be 
 drawn on the following princii)les : — 
 
 " 1. A Board of Trustees to be inserted in the bill by the Leg- 
 islature, to fill up their own vacancies. 
 
 "2. A Board of Overseers, \iz: Governor, Senators, Council- 
 lors, and Speaker of the House of Representatives, for the time 
 being. 
 
 " 3. An unlimited right of conscience, in officers, and students ; 
 no test, creed, or confession to be required of either, or any 
 preference, direct or indirect, of one religion over another. 
 
 ' ' If any thing of this sort be done it ought to be done 
 early." (1 Webster's Priv. Cor. 259, 260.) 
 
 Mr. Webster seems to have thought that a board of 
 overseers numbering nineteen, and religious toleration, were 
 adapted to every institution but Dartmouth College. This 
 adroit move had some influence for a time, but it failed "to 
 divide and conquer," 
 
 Governor Plumer knew that corporate power too often 
 was but another name for the uncontrolled dominion of one 
 or at best a few minds. With Dartmouth's Board of
 
 MESSAGES OF GOVERNOll PLUilER. 105 
 
 Trustees he feared its tendency to "jobs " and corruption, 
 as well as its tendency to absorb power and infringe upon 
 individual rights, and sought to guard against it. In his 
 message to the Legislature, of June 6, 1812, he says : "Acts 
 of incorporation of various kinds have, within a few years, 
 greatly increased in this State ; and many of them being in 
 the nature of grants, cannot, with propriety, be revoked 
 without the previous consent of the grantees. Such laws 
 o'ught therefore to be passed with great caution ; many of 
 them should be limited to a certain j)eriod, and contain 
 a reservation authorizing the Legislature to repeal them, 
 whenever they cease to answer the end for which they were 
 made, or prove injurious to the public interest." 
 
 In his message of June 6, 1816, to which we have already 
 referred, Governor Plumer says : — 
 
 " There is no system of government where the general diffu- 
 sion of knowledge is so necessary as in a republic. It is there- 
 fore not less the duty than the interest of the State to patronize 
 and support the cause of Hterature and the sciences. So sensi- 
 ble were our ancestors of this, that they early made provision for 
 schools, academies and a college, the good effects of which we 
 daily experience. But all literary establishments, like everything 
 human, if not duly attended to, are subject to decay ; permit me, 
 therefore, 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 pros- 
 perity, it has a strong claim to our attention. The charter of 
 that college was granted December 13th, 1769, by John Went- 
 worth, 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 mon- 
 archy ; among others, it established trustees, made seven a quo- 
 rum, 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 tliennselves electing others 
 to supply vacancies. This last principle is hostile to the spirit and 
 genius of a free government. Sound policy therefore requires
 
 106 DARTMOUTH COLLEGE CAUSES. 
 
 that the mode of election should be changed, and that trustees, in 
 future, should be elected by some other body of men. To in- 
 crease the number of trustees would not only increase the secu- 
 rity of the college, but be a means of interesting more men in its 
 {prosperity. If it should be made in future the duty of the Presi- 
 dent, annually in May, to report to the Governor a full and par- 
 ticular account of the state of the funds, their receipts and expen- 
 ditures, the number of students and their progress, and generally 
 the state and condition of the college ; and the Governor to com- 
 municate this statement to the Legislature in their June session ; 
 this would form a check upon the proceedings of the trustees, 
 excite a spirit of attention in the officers and students of the col- 
 lege, and give to the Legislature such information as would enable 
 them to act with greater propriety upon whatever may relate to 
 that institution. 
 
 " The college was formed for the public good, not for the bene- 
 fit 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. Sir Thomas 
 Gresham established a fund to support lectures in Gresham Col- 
 lege in London, upon the express condition that the lecturers 
 should be unmarried men, and, upon their being married, their 
 interest in the fund should absolutely cease ; out the British Par- 
 liament, in the year 1768, passed a law removing the college to 
 another place, and explicitly enacted that if the lecturers were 
 married, or should marry, they should receive their fees and 
 stipend out of the fund, any restriction or limitation in the will 
 of the said Gresham to the contrary notwithstanding. In this 
 country a number of the States have passed laws that made mate- 
 rial changes in the charters of their colleges. And in this State 
 acts of incorporation of a similiar nature have frequently been 
 amended and changed by the Legislature. By the several acts 
 incorporating towns, their limits were established ; but whenever 
 the Legislature judged that the public good required a town to be 
 made into two, they have made the division, and in some instances 
 against the remonstrance of a majorit}' of its inhabitants. In the 
 charter of Dartmouth Colleges it is expressly provided that the 
 president, trustees, pi'ofessors, 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
 
 Jefferson's views — professor hale. 107 
 
 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; 
 and I trust you will make such further provisions as will render 
 this important institution more useful to mankind." 
 
 Governor Plumer communicated this message to Jeffer- 
 son, who replied, in liis 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 tliehi 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." (Life of Plumer, 440, 441.) 
 
 The committee to whom the message, etc., relating to 
 this subject were referred 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 de- 
 fects were remedied. The case of Professor Hale, who was 
 ousted some thirty years after on account of his Episcopal 
 tendencies, under a charter granted by an Episcopalian 
 governor, would seem to show that this committee had a 
 prophetic eye. The debates upon the historical and consti- 
 tutional questions involved were able. The minority were 
 ably led, both inside and outside the Legislature, but par- 
 liamentary tactics availed them nothing. 
 
 In the remonstrance of Thompson, Paine, and McFarland, 
 of June 19, 1816, before referred to, thev sav : —
 
 108 DARTMOUTH COLLEGE CAUSES. 
 
 "The charter of Dartmouth College vests certain rights of 
 property for particular uses, in the trustees. The sovereign 
 power, having once made this grant, cannot, as the trustees 
 humbly conceive, divest them of it so long as they exercise 
 their trust in conformity to the true intent and meaning of the 
 charter. They respectfully call to the view of the Honorable 
 Legislature that Dai'tmouth College was not founded by the then 
 existing sovereign. It was founded and endowed by liberal 
 individuals ; and the charter was given by the sovereign to per- 
 petuate tiie application of the property conformably to the design 
 of the donors. If the propertj^ has been misapplied, if there has 
 been any abuse of power upon the part of the trustees, the}' 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 legisla- 
 tive powers, and constitutes the Legislature a judicial tribunal." 
 
 This remonstrance presented the Parsons view. 
 
 Apparently, the idea that no Legislature could impair or 
 affect the charter originated with the schoolmen, the pro- 
 fessors and doctors of divinity, and not ^vith the legal giants 
 in the board, or those who afterward acted as counsel. 
 The eight trustees, in their reply to Wheelock, virtually 
 charge him with Ijeing its author. They say : '• During his 
 troubles in the Legislature of Vermont [commencing as 
 early as 1806] relating to the grant of the township of 
 Wheelock, the president has been often heard to say (and 
 if the application were from the other side, and designed to 
 correct any of his abuses, would now say), that the charter 
 of the College was a royal grant, and not under the control 
 of tlie Legislature. His motive in this proceeding can be 
 nothing either more or less than to prejudice the minds of 
 the members of the LegisLiture and of the people, by 
 inducing a belief that the trustees aim at an independence 
 not given them by the charter." 
 
 It is quite apparent that the trustees intend to charge 
 Dr. Wheelock with maintaining the doctrine in 1806-7
 
 ROYAL GRANTS LEGISLATIVE PROTEST, 109 
 
 which they successfully set up years later. It is noticeable 
 that neither Dr. Wheelock nor any of his friends denied 
 the charge. But on June 24, 1816, Thompson and McFar- 
 land presented to the Legislature another remonstrance, 
 setting forth that the charter Avas a " contract," etc. 
 
 On June 26, the bill passed to be enacted. On June 28, 
 seventy-five of the one hundred and ninety members of the 
 House entered their protest upon the journal, on the follow- 
 ing grounds : — • 
 
 1. Because the charter was a contract. 
 
 2. Because "the trustees have been thereby 'despoiled 
 and deprived of their property, immunities, and privileges ' 
 as trustees of Dartmouth College as secured to them l>y the 
 charter ; and virtually declared guilty of the charges 
 exhibited against them by the memorial of Doct. John 
 Wheelock without being fully heard in their defence by 
 themselves and counsel." 
 
 3. Because it " appears that the College is in a prosper- 
 ous state and condition, and consequently that no necessity 
 exists for any legislative interference whatever." 
 
 The fourth reason has already been set forth. 
 
 Finally, "They protest against this act, because its 
 inevitable tendency is to make the highest seat of literature 
 and science in the State subject to every change and revo- 
 lution of party, than which nothing in their opinion can be 
 more destructive to its welfare." 
 
 On the same day, they attempted by legislative resolution 
 to declare the trustees innocent of Wheelock's chargfes. 
 
 In the Senate, a motion was made to amend the bill so 
 that it should not take effect until approved by the trustees 
 of the College. 
 
 A motion was then made to amend the bill by inserting 
 a new section, providing " that if, by reason of passing this 
 act, any of the property now belonging to said College should 
 by judgment of court be adjudged forfeited, or should any 
 of its funds be impaired by the operation of this act, this
 
 110 DARTMOUTH COLLEGE CAUSES. 
 
 State shall save harmless the trustees of said College from 
 all losses they may sustain on account of such forfeiture, 
 and from costs in defending any suit brought against them 
 by reason of passing said act." These amendments were 
 defeated by the same vote. 
 
 The recommendations of the governor became a law ; the 
 name of the College was changed to University ; the num- 
 ber of the trustees was increased to twenty-one ; a board 
 of twenty-five overseers was created ; ' ' the president of the 
 Senate and the speaker of the House of Representatives of 
 New Hampshire, the governor and lieutenant-governor of 
 Vermont, for the time being, were made members of said 
 board, ex officio,'^ and the governor and Council of New 
 Hampshire. The president and professors of the Univer- 
 sity were required to take an oath to support the Con- 
 stitution of the United States and of the State of New 
 Hampshire. 
 
 The trustees were in a quandary, and knew not which 
 way to turn. The following letters will explain their posi- 
 tion better than any words of ours. 
 
 In his letter of July 5, 1816, to Judge Farrar, Thompson 
 says : " You have doubtless seen the college act as it passed. 
 President Bro'v\^l has wi'itten me wishing for the best advice 
 of our best friends, — and suggesting as his present opinion 
 that the old Trustees ought not to yield. He thinks a nar- 
 rative of the proceedings of the Gen. Court ought to be 
 published, together with some of the documents. He also 
 suggests the expediency of securing as many of the news- 
 papers to our interest as possible, & wishes a series of num- 
 bers to be inserted in the Oracle exposing the outrageous 
 conduct of the Legislature &> thinks you must take hold of 
 the business in good earnest. He wishes if practicable to 
 secure the Keene Sentinel, the Dover Sun and Cabinet. 
 Do you know of any mode ? I do not. Is it practicable 
 to secure either of the Boston papers ? If we conclude to 
 resist the act it is absolutely necessary the public mind
 
 THE PKESS JUDGE STOllY. LI I 
 
 should be prepared in some measure for it. We think too, 
 a good deal ought to be said in the papers & in conversa- 
 tion respecting a removal of the College to Concord for 
 various reasons. He contemplates a journey to Portsmouth 
 & on the seaboard soon to ascertain the state of public 
 opinion. I wish you & Mr. Webster to discuss the ques- 
 tion — what ouo-ht the old Trustees to do under existino^ 
 circumstances. I have devoted much time to this unhappy 
 business & should gladly be excused from further services, 
 but am "willing to labor as long as there is any prospect of 
 doing any good. 
 
 ' ' The idea of a removal of the Colles-e to Concord ouo^ht 
 first to be started in Portsmouth papers." 
 
 Below the signature is the followino; list of trustees and 
 overseers of the University : — 
 
 '' Trustees. — Aaron Hutchinson, Josiah Bartlett, Durell, 
 Cyrus Perkins, Joshua Darling, M. Harvey, L. Woodbury, 
 Wm. H. Woodward, Henry Hubbard. 
 
 " Overseei's. — Gov. Vert. [Vermont], Lieut. Gov., Pres. 
 Senate, Speaker, Gov. Langdon, Gov. Gray, Gen. Dear- 
 born, Doct. Baldwin, Judge Story, Ben. Crowningshield, 
 Judge B. Green, Cyrus Perkins, Deacon Ticknor, Jiidge 
 Claggett, Dudley Chase, H. A. S. Dearborn, Judge J. H. 
 Hubbard, Geo. Sullivan, Jas. T. Austin, Clemt Stover, Levi 
 Lincoln, Jr., Albion K. Parris, Doct. Twitchell, Rev. Mr. 
 Sutherland, W. A. Griswold, Danville." 
 
 There was a strong and respectable following in the Fed- 
 eral party which was at heart with Wheelock ; but they 
 were not the men who controlled the party organization. 
 Certain journals, to some extent, reflected their views. It 
 was policy to silence, manipulate, or subsidize them. At a 
 later day, the N'ational Intelligencer was silenced through 
 Marsh, Hopkinson, and others. It is obvious that the old 
 trustees knew very early that Judge Story and Levi Wood- 
 bury were to be members of the new boards.
 
 112 DARTMOUTH COLLEGE CAUSES. 
 
 On July 3, 1816, the governor and council ai^pointed 
 five, and on the next day four more, trustees of the Univer- 
 sity ; and on July 3, they appointed nineteen overseers ; and 
 the day following, the remaining two. 
 
 The new trustees were : Aaron Hutchinson, of Lebanon ; 
 Josiah Bartlett, of Stratham ; Daniel M. Durell, of Dover ; 
 Joshua Darling, of Henniker ; Matthew Harvey, of Hop- 
 kinton ; Levi Woodbury, of Francestown ; Henry Hubbard, 
 of Charlestown ; Cyrus Perkins and William H. Wood- 
 ward, of Hanover. 
 
 By the act, the governor and lieutenant-governor of 
 Vermont and the president of the Senate and speaker of 
 the House of Representatives of New Hampshire were 
 members of the Board of Overseers, ex o'ffioio. 
 
 The other members appointed by the governor and 
 council were : John Langdon, Portsmouth ; William Gray, 
 Boston ; Joseph Story and Benjamin W. Crowinshield, 
 Salem, Mass. ; Benjamin Greene, Berwick, Me. ; Cyrus 
 King, Saco, Me. ; Clifton Claggett, Amherst ; Dudley 
 Chase, Randolph, Vt. ; Jonathan H. Hubbard, Windsor, 
 Vt. ; George Sullivan, Exeter; Levi Lincoln, Jr., Worces- 
 ter, Mass. ; Albion K. Parris, Paris, Me. ; William A. 
 Griswold, Danville, Vt. ; Henry Dearborn, Roxbury, Mass. ; 
 Henry A. S. Dearborn, Boston ; Clement Storer, Ports- 
 mouth ; Thomas Baldwin, Boston ; David Sullivan, Bath ; 
 Amos Twitchell, Keene ; Elisha Ticknor, Boston ; James 
 T. Austin, Boston. 
 
 By his summons, the governor promptly convened the 
 trustees and Board of Overseers. They met at Hanover, on 
 August 26, 1816, and remained in almost continuous session 
 for four days. 
 
 Fourteen of the overseers were j^resent. Of the trustees 
 there were present on the first day Governor Plumer, 
 Josiah Bartlett, Joshua Darling, William H. Woodward, 
 Levi Woodbury, Cyrus Perkins, A, Hutchinson, Daniel M.
 
 TRUSTEES AND OVERSEERS OF THE UNIVERSITY. 113 
 
 Durell, and Stephen Jacob. Governor Plumer was made 
 chairman, and Judge Woodward secretary. It was — 
 
 " Voted unanimously, That his Excellency WiUiam Plumer be 
 chairman of this meeting. 
 
 " Voted, That the Hon. William H. Woodward be clerk of this 
 meeting. 
 
 " Voted, That Messrs. Plumer, Durell, and Woodbury be a 
 committee to confer with a committee from the Board of Over- 
 seers on the business of the present meeting and the propriety 
 and mode of proceeding thereto." 
 
 On the next day, Henry Hubbard, another of the trustees, 
 afterwards a member of the United States Senate, appeared 
 and acted with those heretofore named. It was — 
 
 " Voted, That the chairman again notify the Rev. Francis 
 Brown of this meeting; and request his attendance thereon, or 
 his reasons for non-attendance. ' ' 
 
 The chairman immediately forwarded to Mr. Brown, the 
 following notice : — 
 
 Hanover, Aug. 27, 1816. 
 
 Sir, — A number of the trustees of Dartmouth University are 
 convened at the treasuiy office of Judge Woodward. They are 
 authorized and prepared to proceed in the transaction of business, 
 provided you will give your attendance as required by statute to 
 preside over their meeting. 
 
 I am requested, therefore, by the gentlemen present to notify 
 you of the above circumstances, in order that by repairing here 
 as soon as possible the necessary measures may be seasonably 
 adopted preparatory to the duties and exercises of to-morrow. 
 
 Your attendance, or reasons for non-attendance, are wished for 
 immediately, if agreeable. 
 
 Mr. Brown replied as follows : — 
 
 Tuesday Evening, Aug. 27, 1816. 
 To Jiis Excellency, William Plumer. 
 
 Sir, — Your note has just been received requesting my attend- 
 ance at Judge Woodward's, or my reasons for non-attendance.
 
 114 DARTMOUTH COLLP^GK CAUSES. 
 
 With respect to the act of 27th June last, referred to by your 
 Excellency, I would remark that I have not supposed any indi- 
 vidual of the twent3'-one persons contemplated in that act, as the 
 trustees of Dartmouth University was bound to act under it, 
 unless with his own deliberate consent. 
 
 I have taken that act under consideration, together with the 
 other trustees constituted according to the provisions of the char- 
 ter of 1769, but no decision has as yet been taken, and until the 
 last mentioned trustees shall conclude to abandon their charter and 
 accept the before mentioned act, I shall probably deem it my duty 
 not to attend. The trustees did not, as I in the morning expected 
 they would, act upon the report of their committee. It is there- 
 fore still under consideration. 
 
 It was then " voted that Messrs. Burell, Woodward, Per- 
 kins, Hubbard and Woodbury be a committee to consider 
 the necessary regulations for the government of Dart- 
 mouth University, and the organization of diiferent colleges 
 therein." 
 
 On this day the trustees of the College formally removed 
 Judge Woodward from the office of secretary. On August 
 28, 1816, the trustees of the University appointed Judge 
 Woodward secretary and treasurer j9ro tern. 
 
 They then voted that the chairman address Dr. Shurtleff 
 and Professor Adams notices, requesting their attendance 
 on this meeting. This was done. Both declined attending, 
 upon the ground that a quorum of the board was not in 
 attendance. 
 
 Forthwith Messrs. Brown, Thompson, Farrar, Paine, 
 Marsh, McFarland, Smith, and Payson, a majority of the 
 old trustees, formally refused to accept the provisions of 
 the act, and expressly refused to act under the same. Mr. 
 Brown at once gave Governor Plumer due notice of their 
 action. The trustees of the University thereupon "voted 
 that Messrs. Durell, Hubbard, and Woodbury draft a 
 remonstrance against the proceedings of the above gentle- 
 men . " A lengthy remonstrance was at once adopted , and
 
 THEIR PROCEEDINGS. 115 
 
 signed by all the trustees in attendance. It concludes with 
 a " solemn protest against any and ail resolves, acts, trans- 
 actions, matters, and things already done by" the old 
 trustees, "as illegal and of none effect," and earnestly 
 exhorts them *' forthwith to desist from all and every act, 
 matter, and thing contravening the provisions of the act 
 aforesaid." 
 
 On August 29, 1816, the board, among other things, voted 
 to adjourn until Tuesday, September 17, following. The 
 meeting of the trustees of the University, owing to the ill- 
 ness of a single member, failed for the want of a quorum. 
 The Board of Overseers adopted the following resolution : — 
 
 Resolved unanimously as our opinion. That we deem the meas- 
 ures pursued by the aforesaid trustees highly expedient, wise, and 
 dignified, and that they meet the cordial and unquaHfied approba- 
 tion and sanction of the members of the Board of Overseers now 
 present. 
 
 [Signed] Henry Dearborn,- 
 
 Benjamin W. Crowninshield, 
 
 Paul Brigham, 
 
 Benja]viin Greene, 
 
 Elisha Ticknor, 
 
 Dudley Chase, 
 
 H. A. S. Dearborn, 
 
 Jajies T. Austen, 
 
 Levi Lincoln, Jr., 
 
 WiLLIAJM A. GrISWOLD, 
 
 Albion K. Paris, 
 Amos Twitchell, 
 David L. Morrill, 
 Clement Storer. 
 
 Judge Story was not present in person, but his confiden- 
 tial friend Crowninshield was.
 
 CHAPTER Y. — CoNTimiED. 
 
 Judge Woodward had been the secretary and long the 
 treasurer of the College. There was no whisper against 
 him, but he was the firm friend of Wheelock. On August 
 27, 1816, he was removed from the office of secretary, and 
 on September 27, 1816, from that of treasurer, and Mills 
 Olcott put in his place. 
 
 We copy the following votes, etc., from the certificate of 
 Mr. Olcott : — 
 
 At the annual meeting of the Trustees of Dartmouth College, 
 holden on the Tuesday preceding the fourth Wednesday in August, 
 being Aug. 27th, A. D. 1816. 
 
 Whereas, William H. Woodward, Esq., heretofore Secretary 
 of the Trustees of Dartmouth College, has when repeatedly re- 
 quested thereto by the President refused to attend the meeting of 
 this Board, or to furnish the records for their use ; therefore, 
 
 Resolved^ That it is the pleasure of this Board that the sd. 
 Woodward hold the sd. office of Secretary to sd. Trustees no 
 longer &, that the same is hereby considered vacant, & the said 
 Trustees will proceed to fill the vacancy. Voted & chose by 
 ballot unanimously, Mills Olcott, Esq., Secretary of the Trustees 
 or Dartmouth College. 
 
 Mills Olcott appeared & accepted the office of Secretary of 
 this Board. 
 
 Thomas W. Thompson, Secy, pro tern. 
 
 Voted., That Mills Olcott, the present Secretaiy of the Trustees 
 of Dartmouth College, be directed to call on the Hon. William H. 
 Woodward, their late Secretary, & demand of him the original 
 charter, records, files & other papers belonging to sd. office of 
 Secretary, and also the former seal of the corporation now in his 
 possession. 
 
 (116)
 
 PROCEEDINGS OF THE OLD TRUSTEES. 117 
 
 Voted, That Mills Olcott, Secretary to the Trustees of Dart- 
 mouth College, be empowered to take such legal measures to 
 obtain the seal, charter, files & other papers belonging to the office 
 of Secretary (in case of the refusal of the Hon. Wm. H. Wood- 
 ward, their late Secretary, to deliver the same on request) as may 
 be deemed advisable. 
 
 Voted, That Mills Olcott be authorized to appear for and act 
 as agent to the Trustees of Dartmouth College in any actions 
 hereafter to be brought in favor of or against sd. Trustees. 
 
 At a meeting of the Trustees of Dartmouth College, holden by 
 adjournment at sd. College on the 27. day of Sept. A. D. 1816, 
 being the last Friday of sd. month of Sept. — 
 
 Voted, That Mills Olcott, Esq., the present Treasurer of the 
 Trustees of Dartmouth College, make a legal demand of Wm. H. 
 Woodward, Esq., their former Treasurer, of the property & evi- 
 dences of property in his hands belonging to sd. Trustees. 
 
 A copy of the foregoing, duly certified, was furnished by 
 Mr. Olcott to Judge Woodward. On the back of the copy 
 is the following certificate, signed by " Wm. H. Wood- 
 ward" : — 
 
 I hereby certify that Mills Olcott this 7. day of October, A. 
 D. 1816, called on me at my dwelling-house in Hanover & deliv- 
 ered to me the certificates on the opposite side, & demanded of 
 me the original charter, records, files & other papers (which he 
 claimed as) belonging to the office of Secretary of the Trustees of 
 Dartmouth College, & also (what he styled) the former seal of the 
 corporation, and that he also demanded of me the property & 
 evidences of property supposed to be in my hands as Treasurer & 
 (which he claimed as) belonging to sd. Trustees, all of which I 
 declined to deliver to him — [because I entertained doubts of his 
 authority to demand and receive the same of me ; & because I 
 was not satisfied of the legal corporate existence of such a board 
 of trustees as those under whom he claims to have derived his 
 authority, nor of the legality of their meetings or proceedings — 
 more especially as they have refused to accede or submit to the 
 act of the Legislature passed June 27th last, entitled an act to
 
 118 DARTMOUTH COLLEGE CAUSES. 
 
 amend the charter & enlarge & improve the corporation of Dart- 
 mouth College ; claiming myself however to hold the books & 
 papers & whatever else I am possessed of as Secy. & Treas. of 
 the said corporation, only for the use of the rightful trustees, & 
 subject to their orders ; my present impressions of duty leading 
 me to respect & submit to the provisions of the act aforesaid] . 
 
 The clauses in brackets are apparently in the handwriting 
 of Judge Woodward, and the remainder of the certificate in 
 that of Mr. Olcott. 
 
 The action was trover, and the point was taken by the 
 counsel for the defendant that upon such a demand and re- 
 fusal the form of action was misconceived. 
 
 The chief justice intimated that this objection was well 
 taken, but it was waived in the argument at Exeter by coun- 
 sel, as other points were waived by counsel on the other 
 side. 
 
 The adjournment was mainly for the purpose of devising 
 measures for filling the vacancies in the Board of Trustees. 
 
 The original act provided ' ' that the Governor and Council 
 are hereby authorized to fill all vacancies in the Board of 
 Overseers, whether the same be original vacancies or are 
 occasioned by the death, resignation, or removal of any 
 member ; and the Governor and Council in like manner shall 
 by appointments, as soon as may be, com^Dlete the present 
 Board of Trustees to the number of twenty-one, as provided 
 for by this act ; and shall have power also to fill all vacan- 
 cies that may occur previous to or during the first meeting 
 of the said Board of Trustees." 
 
 On September 19, 1816, the governor and council, then 
 m session at Hanover, made the following application to 
 the judges of the Superior Court for their opinion : — 
 
 The undersigned respectfully request the opinion of the 
 hon^'*^ the Justices of the Superior Court of Judicature, upon the 
 following questions : —
 
 OPINION OF THE JUDGES. 119 
 
 First. Has the Legislature of this State authority to amend the 
 charters or acts of incorporation of literary corporations, bj' 
 increasing the number of Trustees, adding Boards of Overseers 
 and prescribing modes of visitation in cases where such corpo- 
 rations were established by the present Government of this State, 
 or by John Wentworth formerly Governor of the province of 
 New Hampshire, exercising authority in the name of the British 
 king? 
 
 Second. Have the Governor and Council of this State in virtue 
 of an act passed June 27th, 1816, entitled " An act to amend the 
 charter, and enlarge and improve the corporation of Dartmouth 
 College," authority to fill any vacancies in the Board of Trustees 
 or Overseers happening since the 26th of August last, there not 
 having been on that day a meeting of a quorum of either of said 
 Boards as prescribed by said act. 
 
 William Plumer, 
 Elijah Hall, 
 Samuel Quarles, 
 B. Pierce. 
 
 The following answer was received and recorded Novem- 
 ber 25, 1816, viz. : — 
 
 To his Excellency the Governor and the Honorable Council of the 
 State of New Hampshire. 
 
 The undersigned, Justices of the Superior Court of Judicature, 
 have considered the two questions proposed by your Excellency 
 and Honors for their opinion. 
 
 As to the first question, " whether the Legislature of this State 
 has authority to amend the charters or acts of incorporation of 
 literary corporations, b}"" increasing the number of Trustees, adding 
 Boards of Overseers and prescribing modes of visitation," we 
 have examined the Constitution of this State and also the Consti- 
 tution of the United States, and have not been able even to con- 
 jecture any ground upon which such an authority in the Leg- 
 islature can be questioned, unless it be that such alterations if 
 made without the consent of the corporation may possibly be 
 construed to be a violation of private vested rights, which are 
 protected by those Constitutions. Not being able to see any 
 other objection to the exercise of such an authority, it instantly
 
 120 DARTMOUTH COLLEGE CAUSES. 
 
 occurs to US that those who may deem their rights infringed by 
 such alterations may have recourse to our courts for the protec- 
 tion of their supposed privileges, and a doubt arose in our minds 
 as to the propriety of our forming an opinion upon a question 
 supposed to affect private rights alone, till those who may think 
 themselves interested in the question, have had an opportunity to 
 be heard. This doubt led us again to an examination of the Con- 
 stitution, and upon the most mature reflection we are inclined 
 to believe that the Constitution of this State did not contemplate 
 that the opinion of the Justices of the Superior Court should be 
 required upon a mere question of right between the Legislature 
 and individuals, but upon important questions of a nature alto- 
 gether public. Your Excellency and Honors will at once perceive 
 the reason and utility of this distinction, when it is considered 
 how very important it is that to the decision of every question of 
 a new impression, involving private rights, we should not only in 
 fact come, but that those who are interested should have a rea- 
 sonable confidence that we come, with minds entirely unshackled 
 by preconceived opinions. 
 
 WE have therefore thought it our duty respectfully to request 
 your excellency and your Honors to excuse us from expressing any 
 opinion upon the first question proposed to us. Indeed, we have 
 thought it our duty not to form any opinion, and we trust that no 
 inference will be drawn from anything here said that our opinions 
 incline to the one side or the other of the question proposed. 
 
 We have duly examined the second question, viz., "Have the 
 Governor & Council of this State, by virtue of the act of June 
 27, 1816, authority to fill any vacancies in the Board of Trustees 
 and Overseers happening since the 26t. of August, 1816, there not 
 having been on that day a meeting of a quorum of either of said 
 boards as prescribed by said act ? ' ' and we are of opinion that the 
 authority of the Governor and Council to fill vacancies in the 
 Board of Overseers is general, and extends to all vacancies which 
 may already have occurred, or which may hereafter occur. But 
 the act having given to the Governor and Council power to fill 
 only such vacancies in the Board of Trustees as should occur pre- 
 vious to or during their first meeting, and the 26th of August 
 having been fixed by law as the time of the first meeting, and no 
 legal meeting having been held at that time, we are of opinion that
 
 MESSAGE OF GOVEKNOU PLUMER. 121' 
 
 the Governor and Council have not authority to fill vacancies in 
 the Board of Trustees which may have occurred since the 26tli of 
 August last. 
 
 Wm. M. ElCHABDSOIf, 
 
 SAivruEL Bell. 
 
 Governor Plumer communicated this answer, in a special 
 message, to the Legislatm'e, on December 5, 1816. 
 
 In his message to the Legislature, on November 20, 1816, 
 Governor Plumer says : — 
 
 "In obedience to the law, I summoned the trustees and over- 
 seers of Dartmouth University to meet at Hanover on the 26th of 
 August last, the time assigned by the Legislature for their first 
 meeting. In compliance with this request, a considerable number 
 of respectable gentlemen of distinguished character and standing 
 in society, from Massachusetts, Vermont, Maine, and this State, 
 met in that town. Thirteen members of the Board of Overseers 
 assembled on that day, and on the next fourteen were present, 
 but they wanted one more to make a quorum. Of the Board of 
 Trustees, on the same 26th of August, nine attended, & the next 
 day ten, but they also wanted one to make a quorum. Although 
 I had previous to this meeting duly summoned the trustees, who 
 were appointed under the authority of the royal charter, to attend, 
 yet as only one of them attended, and as there were then nine 
 others in Hanover on the 26th of August, I again addressed a note 
 to each of them individually, informing them of the hour and place 
 of meeting, but neither of the nine attended on that day, or re- 
 turned any answer to my request. Two days after they declared 
 that the law of this State, passed the 27th June, 1816, to amend 
 the charter and enlarge the corporation of Dartmouth College, 
 was in point of precedent and principle dangerous to the best in- 
 terests of society ; that it subjected the college to the arbitrary 
 will and pleasure of the Legislature ; that it contained palpable 
 violation of their rights ; was unconstitutional ; and that they 
 would not recognize or act under its authority. A copy of the 
 proceedings of the overseers and trustees acting under authority 
 of the law, and of the trustees opposed to it, so far as they have 
 come to my knowledge, I will lay before you for your consider- 
 ation. 
 
 "There not being a quorum of either trustees or overseers
 
 122 DARTMOUTH COLLEGE CAUSES. 
 
 assembled on the 26 th of August, and the statute giving no 
 authority for a less number to adjourn or power to call another 
 meeting, no further proceedings have been had. 
 
 "It is an important question, and merits your serious consid- 
 eration, whether a law passed and approved by all the constituted 
 authorities of the State shall be carried into effect ; or whether a 
 few individuals^ not vested with any judicial authority, shall be 
 permitted to declare your statutes dangerous and arbitrary, uncon- 
 stitutional and void. Whether a miywrity of the trustees of a 
 literary institution, formed for the education of your children, 
 shall be encouraged to inculcate the doctrine of resistance to the 
 law, and their example tolerated, in disseminating principles of in- 
 subordination and rebellion against government. 
 
 " Believing you cannot doubt the course proper to be adopted 
 on this occasion, permit me to recommend the passage of a bill to 
 amend the law respecting Dartmouth University : Give authority 
 to some person to call a new meeting of trustees and overseers ; 
 reduce the number necessary to form a quorum in each board ; 
 authorize those who may hereafter meet, to adjourn from time to 
 time till a quorum shall assemble ; give each of the boards the 
 same authority to transact business at their first, as they have at 
 their annual meeting ; and, to remove all doubts, give power to the 
 executive to fill up vacancies that have or hereafter may happen 
 in the Board of Trustees, and make such other provisions as will 
 enable the boards to carry the law into effect and render the in- 
 stitution useful to the public." 
 
 Liberal and tolerant as he vp^as in religious matters, and in 
 the appointment of officers of the University, as we have 
 already seen, he was equally so in other appointments. 
 
 The council consisted of five members, — three Eepub- 
 licans and two Federalists, each having one vote. Seventeen 
 judges were appointed, — ten Eepublicans and seven decided 
 Federalists. Of the latter, Judge Woodward accepted. 
 All, or nearly all the others, some much against their own 
 inclination, under a species of moral duress, declined ; 
 Webster, Thompson, and other leading Federalists, always 
 excepting Mason, having for party purposes thrown their 
 great influence against their acceptance.
 
 FEDERALISTS DECLINE APPOINTMENTS. 123 
 
 The hishest court of the State was to consist of three 
 judges. Oil July 1, 1816, the governor named for that 
 bench Mason for chief justice, and William M. Eichardson 
 and Samuel Bell for associate justices. Richardson was 
 confirmed unammously. The Republican councillors nomi- 
 nated Bell, and the Federalists opposed him on account of 
 the transactions w^hich culminated in the suit BuUard v. 
 Bell ; but he was confirmed. The majority of the council, 
 in retaliation for the conduct of the Federalists towards 
 Bell at that time, failed to confirm Mason. The gov- 
 ernor thereupon nominated George B. Upham, an eminent 
 Federalist, who declined for the reasons already given. 
 Richardson in the meantime had become chief justice. The 
 governor having brought a majority of the council to his 
 way of thinking, and being exceedingly anxious that Mason 
 should be placed at the head of the constitutional court, 
 Richardson voluntarily proposed to resign that place if it 
 could be conferred upon Mason, and to take his seat by 
 his side as an associate. 
 
 On August 7, 1816, the governor wrote Mr. Mason as 
 follows : ' ' Permit me to inquire if you are appointed chief 
 justice of that court will you accept the office ? It has long 
 been my desire that you should have that office, and I think 
 it will be ofi'ered to you provided I have assurance you will 
 accept it. It is an office worthy your ambition, and one I 
 hope you will hold till you are removed to the bench of 
 Supreme Court of the United States . ' ' 
 
 On August 18, 1816, Mason declined the office, on the 
 ground, first, " that the salary was not a reasonable com- 
 pensation ;" and, second, that the law required all the 
 judges to attend each trial term, when, as he thought, one 
 was sufficient; — adding, "After thus stating the reasons 
 which prevent my complying with your proposal, I trust it 
 is unnecessary to add, that political considerations, which in 
 these times are often supposed to determine almost every- 
 thing, have with me on this subject no influence,"
 
 124 DARTMOUTH COLLEGE CAUSES. 
 
 In relation to these appointments, Governor Plumer, in 
 his message of November 20, 1816, from which we have 
 already quoted, said : — 
 
 " In making, diu-ing the recess of the Legislature, the appoint- 
 ment of judges of the Superior Court of Judicature, and courts 
 of Common Pleas, it was my sole object to select men of talent, 
 of legal information, strict integrity, and such as were best quali- 
 fied for those important offices, with a view to exclude, as far as 
 practicable, the spirit of party from the temple of justice ; and 
 to inspire a general confidence in our courts of law, in which 
 every citizen has a deep interest, I selected gentlemen of differ- 
 ent political principles. And I regret that a number of those, 
 who were thus appointed, declined the appointments. Whatever 
 effect this course of proceeding may have on public opinion, I 
 shall always enjoy the consolation that on my part it originated 
 from a pure motive, that of the public good." 
 
 In consequence of this course of action on the part of the 
 Federalists, on December 9, 1816, Levi Woodbury was 
 appointed to the bench in place of Upham. 
 
 On December 19, 1816, John Harris, Moses Eastman, 
 and Ichabod Bartlett were appointed trustees ; and on the 
 same day, Arthur Livermore, William Badger, Judah Dana, 
 Jadutham Wilcox, Ezra Bartlett, Stephen P. Webster, all 
 of New Hampshire, and William Bently, of Salem, Massa- 
 chusetts, were appointed overseers. 
 
 The old trustees, in their memorial to the Legislature, in 
 1804, asserted that " they had no other interest than the 
 members of the Legislature themselves." In their vindica- 
 tion they state their own position in statmg that of the 
 trustees of Kimball Union Academy. They say: "The 
 Trustees of Union Academy have no private interest, either 
 associated or individual, in the funds, nor even pay for 
 their services or expenses. They are mere stake-holders, 
 like other corporations of this kind, for the public." 
 
 Probably for this reason, though the leading trustees had
 
 POSITION OF THE OLD TRUSTEES. 125 
 
 ample wealth, while the College practically had none, the}'- 
 took no steps 1)}^ spending their own money to test these 
 acts. But when they were in session in 1816, John B. 
 "Wheeler, of Orford, a farmer and country merchant, said to 
 one of the professors, an old friend : "■ If the trustees intend 
 to test their rights by a suit at law, and should w^ant means, 
 I have a thousand dollars at their command." The offer 
 w^as transmitted to and accepted by the board. Marsh 
 termed it "a light breaking upon blank darkness." The 
 late Professor Adams said: "If it had not been for this 
 unsolicited, unsuspected, unthought-of aid, the great case 
 of Dartmouth College would not have been commenced." 
 Adams was the one to wdiom Thompson wrote his famous 
 letter ( already referred to) relating to his long conversation 
 with Webster, dated July 13, 1815. Henceforth the strug- 
 gle was between the College and the University, or virtually 
 between the old trustees and the State. 
 
 In his letter of January 3, 1817, to Judge Farrar, Mr. 
 Bro\\ai says : ' ' We have not yet seen any authentic copy 
 of the act of our Legislature by which we are to be effec- 
 tually put doT^^l. A copy, probably correct, has however 
 been published in the American. According to this, it is 
 enacted, that whoever shall presume to exercise any office 
 in D. U. except in subordination to its Trustees, under any 
 name or pretext whatsoever, shall forfeit and pay for every 
 offence the sum of $500, one-half to the complainant & the 
 other half to the U. I presume you will soon have an 
 opportunity to see the act. 
 
 ' ' Now what shall we do ? One of these four courses must 
 be taken. We must either keep possession & go on and 
 instruct as usual, without any regard to the law, or with- 
 dra^ving from the Coll. edifice & all the Coll. property con- 
 tinue to instruct as the officers of D. Coll., or relinquishing 
 this name for the present, collect as many students as wall 
 join us and instruct them as private but associated individ- 
 uals ; — or else we must give up all and disperse. Will
 
 12G DARTMOUTH COLLEGE CAUSES. 
 
 you give us your opiniou what may be our dut}^, 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 
 line, if we instruct as the officers of D. Coll., relinquishing, 
 however, the Coll. buildings, the Library, apparatus, &c. 
 
 ' ' Whatever may become of us I trust due advantage may 
 be taken of the Act, by which we are to be placed out of 
 the protection of law as well as of the other acts of our Gov. 
 & his Legislature. 
 
 " If we resolve to persevere in our duties as the officers of 
 D. Coll., & to meet the consequences, can nothing be done 
 for our help in Portsmouth? We must have substantial aid, 
 or it will be impossible for us to go on. 
 
 " In your reply to this, please to give us all the advice 
 which you think may be useful." 
 
 In his letter to Farrar, dated Washington, January 21, 
 1817, Thompson says : "The officers at College are very 
 desirous to know the opinion of their friends as to the 
 course they ought to take at the approaching crisis. I 
 have advised Pres." Bro^vn to call the Trustees together 
 at Hanover, about the 4tli of Feby., to compare opinions 
 & feelings & advise such measures as the occasion demands. 
 I have to request 3^ou to write him as soon as prac- 
 ticable, & give him your opinion and the opinion of our 
 friends round you as to the measures and conduct that 
 ought to be pursued. I have taken it into my head to 
 ^vi'ite to several gentlemen in diiferent parts of the State to 
 do the same thing. I think it desirable to collect opinions 
 of respectable persons, believing that a knowledge of them 
 may be beneficial. I ^vish you to write him particularly on 
 the following questions : — 
 
 * Is it expedient under existing circumstances for the 
 Trustees and Officers to abandon their trust altos-ether? 
 
 "Is it expedient to amalgamate wdth the new order of 
 thin2fs ?
 
 TRUSTEES HESITATE CONSULT COUNSEL. 127 
 
 "Is it still expedient to adhere with firmness to charter 
 rights and abide the consequences? 
 
 "Is it expedient for the Officers to attend the new 
 boards if invited so to do ? 
 
 " Can any course be pursued which will be neither an 
 abandonment of trust nor a hindrance to the operations of 
 the University within the meaning of the Penal Act? 
 
 " In case of an adherence to charter rights & prosecutions 
 against us should be the consequence, is there any ground 
 to ex]^)ect pecuniary assistance, & to what extent? 
 
 " Does the subject excite any more interest amongst your 
 folks than it did? 
 
 ' ' I have informed President Brown that I should request 
 you to wi'ite him after conversing with your friends, par- 
 ticularly Mr. Putnam & Mr. Burroughs, and he will expect 
 to hear from you." 
 
 Olcott, in his letter of January 22, 1817, to Judge Smith, 
 says : "I have to acknowledge the recpt. of your favor of 
 the 4th inst., which did not reach me until the 18th. I had 
 written 3^ou a few weeks since on college concerns, to which 
 receiving no reply, & doubting if there may not have been 
 a miscarriage of the letter, I am requested to address you 
 again on the same subject, & that there may be no delay, 
 to send a special messenger from Concord, who will bring 
 back such communication as you may wish, in reference not 
 only to my letter, but that of President Brown also, if you 
 have had leisure to attend to both. 
 
 " The object of my letter was to obtain your opinion as 
 to the best mode of instituting a suit in favor of the trustees 
 of D. Coll. aot. Judo-e Woodward for refusal to deliver 
 them the property, records, &c., of the Coll. 
 
 "The enclosed letter from Mr. Marsh to Prest. B. will 
 show you what is desired, together with his views, and will 
 render it unnecessary to enlarge upon the subject, — and I 
 will thank you to let the enclosed come back to me with the
 
 128 DARTiVIOUTH COLLEGE CAUSES. 
 
 package you may forward by the bearer, who will wait your 
 convenience as to time." 
 
 This letter was received by Judge Smith on January 26, 
 1817, on which day he replied to Mr. Olcott in substance as 
 follows: " A young man from Concord (express) has this 
 moment handed me your favor of the 22d. 
 
 " Your letter of 27 Dec. came to hand 9 Jany. On the 
 11th I wrote you an answer, which I presume after a copy 
 taken in the post-offices, you have reed. Till the receipt 
 of your letter I had not heard of any intention of the trus- 
 tees to institute any suits. 
 
 ' ' Your letter mentioned that a suit was to be commenced 
 agt. Judge W. &c., & wished for advice as to the policy of 
 such an action, & the manner of prosecuting, &c., stating 
 that you had opportunities of consulting with those of the 
 trustees best al)le to give directions, &c. I had not then, 
 nor have I yet seen any of the acts of the last session. 
 Under the circumstances there was little for me to say. I 
 could only state that I saw no well founded objection to the 
 course proposed. 
 
 " It seemed to me proper by all means if any suit was 
 brought, not to pass by the State courts for reasons which 
 will readily occur to you. I had not, nor have I yet, 
 ingenuity enough to think of any other for77i of actions but 
 trover for the books, &c., & assumpsit for money in the 
 name of the corporation. I do not now see any more diffi- 
 culty on a writ of error in trover than in trespass, though 
 in the former case a bill of exceptions may be necessary, 
 ])ut profess not to have considered the subject with any 
 attention, 
 
 '' I hope from ^^our known candor, exemption from the 
 suspicion of ' not entering much into the feelings & views of 
 the trustees as they relate to the interests of the institution 
 and welfare of society.' 
 
 ' ' There will doubtless be feelings enough without my
 
 VIEWS OF JUDGE SMITH. 129 
 
 adding anything to the mass. I can besides hardly persuade 
 myself that feelings make any part of the qualifications of 
 an Atty. 
 
 '* The parties commonly have enough for the cause. I 
 have always supposed that my zeal has been more manifest 
 than legal talents or prudence. I shall be happy to find 
 myself mistaken, 
 
 " Neither your letter nor that of IVIi'. Marsh seems to call 
 for any addition to my former short letter. It will hardly 
 l)e supposed that I should have made up any opinion on the 
 various matters at issue between the Coll. and University, 
 and I cannot think of detaining the bearer till I have 
 done so. 
 
 "Indeed, at this time, my whole attention is engaged in 
 the business at Dover & Portsmo. terms, &c., which com- 
 mence 10 days hence. 
 
 "I can see no use in sending crude and undigested 
 opinions, which must do hurt if any reliance is placed on 
 them & can do no good. It will be easy to obtain abun- 
 dance of such when they are ivanted. 
 
 " Mr. M. seems to think the best form of action would be 
 account, but understands it is not in use in this State. The 
 common-law action of account is in use in this State, but 
 is as tedious as a chancery suit, and I don't see its peculiar 
 advantages in relation to error. Trespass seems to me 
 out of the question at present. The pleadings are as at 
 common law. 
 
 ' ' You will not understand me as having formed any opinion 
 as to the policy of instituting any suit. I profess to be 
 a very incompetent judge on that subject, but if a suit had 
 been Avisely determined on I do not think from what I have 
 heard of the acts of the last session that any reason exists 
 for abandoning that intention . ' ' 
 
 Judge Smith, in his letter to Mr. Brown, of February 12, 
 1817, says : "I am just returned from Dover Court. Your 
 letter of the 16th ult. reached this place in my absence. I
 
 130 DARTMOUTH COLLEGE CAUSES. 
 
 have read over the act of the last session which you enclosed. 
 The other act of the same session I have not yet seen. 
 
 ' ' I would not undertake to give any opinion as to the true 
 construction of the act in question. I can adopt part at 
 least of the language of a great lawyer who when a states- 
 man applied for his opinion on a point of law, said : ' If it 
 be common law, I should be ashamed if I could not give you 
 a ready answer ; but if it be statute law, I should be equally 
 ashamed if I answered you immediately.' 
 
 " There was one Parliament in those days which was 
 called parliamentum indoctum 
 
 *' The name would suit most of our Parliaments. Their 
 acts are frequently difficult to construe & their legal mean- 
 ing past finding out, tho' it may not sometimes be difficult to 
 guess at what was intended. In the present it was doubt- 
 less the intention to make penal the act of assuming the 
 office of President, Trustee, &c. of Dartmouth University — 
 that is to subject the officers of the college under the old 
 trustees, & the trustees themselves, to the penalty if they 
 13 resume to act after they shall have been put down by the 
 new government of the U. It was supposed the act of June 
 session e:ave the Coll. a new name & converted it into D, U. 
 The act was passed to frighten the old & and to furnish the 
 new with weapons — when the old are removed they mil incur 
 the penalty by assuming to retain their offices — undertaking 
 to discharge official duties — impeding the lawful, i.e. the 
 new officers, in the discharge of their duties. For every 
 such act the penalty will be incurre d in the same manner as 
 a person assuming to be sherifi* is liable for the service of 
 every precept. 
 
 '* This act is predicated on the idea that the act of June 
 session is constitutional. If it be not so then the P., trus- 
 tees, &c., of D. Coll. may continue to assume these offices 
 & discharge their duties. 
 
 " As to the question whether the officers of the college 
 would be liable for instructing, &c., in case they should give
 
 POLICY CONSTITUTIONALITY OF ACT. 181 
 
 up the buildings & other college property. It seems to me 
 unnecessary to consider it. The act of surrendering the 
 property would be a clear admission that they had no right 
 to retain it — with it I think they ought to give up all 
 things — the franchise, name, &c., which are wholly insig- 
 nificant. It would be no oficnce under the new act to 
 instruct, and it will be as useful without as with the name 
 of D. C. If I were one of the trustees, at the same time I 
 surrendered the property I would ask Governor P.'s pardon 
 for my error in having treated his authority so ill. I have 
 no doubt he will forgive them. 
 
 "As to the question of the constitutionality of the last 
 act, I think it depends on that of June, and I suppose the 
 trustees and officers of the college have all made up their 
 minds. 
 
 ' ' If their confidence in the correctness of the course they 
 have adopted remains unimpaired, there is no occasion for 
 my saying anything at this time. If they begin to feel 
 doubts and think of a compromise, this is a case in which 
 the patient must minister to himself. I never advise. 
 
 " I would not advise to an opposition even to the letter of 
 an act of the Legislature. Whether an act of the Legisla- 
 ture be constitutional or not depends on the application of 
 general principles. It is always (6 Cranch, 128) a question 
 of delicacy & there is room for an honest diversity of opin- 
 ion. No prudent lawyer will be very ready to hazard an 
 opinion when called on in the course of his professional 
 duty to maintain the affirmative. He will of course urge 
 such principles & authorities as he thinks have a bearing on 
 the question. But he will not be very sanguine as to the 
 event if he knows anything of human nature, and especially 
 if he has reason to believe that her judges are dependent on 
 a party and are indebted to that party for their appoint- 
 ments & perhaps their continuance in office. 
 
 ' ' From your letter I should conclude that the Penal Act 
 of the last session had produced the consequences which I
 
 132 DARTMOUTH COLLEGE CAUSES. 
 
 am confident it is chiefly intended to produce — a timid 
 spirit in those on whom it was calculated to operate. 
 
 " I write this very hastily, and not under an idea that it 
 will afford you any assistance. I am in the midst of my 
 winter engagements and can spare no time for anything 
 else. It will, besides, not reach you in season." 
 
 Up to the time of the communications with counsel, etc., 
 the action of the old trustees had been negative. The gov- 
 ernor and council, armed with the supplementary acts 
 referred to, had summoned the trustees to meet in Concord, 
 on February 4, 1817. The purpose of that meeting was 
 well understood to be to remove the old trustees if they 
 failed to act, and to put the University in operation. The old 
 board was thus compelled to act, but were undecided as to 
 the course to be taken. 
 
 The old board, controlled mainly by the positive will of 
 the younger Farrar and the influence of Mr. Brown, 
 decided to institute the suit against Judge Woodward and 
 take the consequences. 
 
 The trustees convened in accordance with the summons, 
 and took action as follows : — 
 
 At a meeting of the Trustees of Dartmouth University, con- 
 vened by summons from his Excellency Governor Plumer, at the 
 hall commonly called Mason's Hall, over the Bank, at the south- 
 erly end of the Main Street, in Concord, in the county of Rock- 
 ingham, on Tuesday the fourth day of February, A. D. 1817, 
 and continued by adjournment to the seventh day of said Feb- 
 ruary. 
 
 The committee appointed to prepare and report specifications 
 of charges against President Brown and other trustees, and the 
 professors of Dartmouth University, having reported the follow- 
 ing articles against the Trustees hereafter named, viz. : — 
 
 1. That Nathaniel Niles, Thomas W. Thompson, Timothy Far- 
 rar, Elijah Paine, Charles Marsh, Asa McFarland, John Smith and 
 Seth Pa^'son were severally, personally, and seasonably sum- 
 moned, as trustees of Dartmouth University, to attend a meeting 
 of the Board of Trustees of said institution to be holden at Han-
 
 CHARGES AGAINST OLD TRUSTEES, ETC. 133 
 
 over, in the county of Grafton, and State of New Hampshire, 
 on the 26lh day of August, A. D. 1816 ; that their attendance 
 respective!}' at that time and place was necessary to constitute a 
 quorum to transact the important business of that institution, 
 then and there jDending, of which they severally were well know- 
 ing, but the}', the said Nathaniel Niles, Thomas W. Thompson, 
 Timothy Farrar, Elijah Paine, Charles Marsh, Asa McFarland, 
 John Smith and Setli Payson, in violation of the duties of their 
 respective offices of Trustees as aforesaid, then and there neg- 
 lected and refused to attend said board on the twenty-sixth day 
 of August aforesaid. 
 
 2. That on the twenty-eighth day of August, A. D. 1816, the 
 said Nathaniel Niles, Thomas "W. Thompson, Timothy Farrar, 
 Elijah Paine, Charles Marsh, Asa McFarland, Johu Smith and 
 Seth Paj'son, in direct violation of their respective offices, sever- 
 ally explicitly declared that they would not submit to a law passed 
 by the Legislature of said State on the 27th day of June, A. D. 
 1816, entitled, " An act to amend the charter, and enlarge and 
 improve the corporation of Dartmouth College," and severally 
 explicitly refused to act under the same. 
 
 3. That on the twenty-eighth day of August, A. D.. 1816, at 
 Hanover aforesaid, the said Nathaniel Niles, Thomas W. Thomp- 
 son, Timothy Farrar, Elijah Paine, Charles Marsh, Asa McFar- 
 land, John Smith and Seth Payson, did undertake and assume, 
 in the name of this board to confer sundry literary degrees, and 
 to manage and conduct the exercises of the last commencement 
 at said Universit}', without the consent, against the will, and in 
 contempt of the authority of this board, and of the laws of this 
 State relative thereto. 
 
 4. That the said Nathaniel Niles, Timothy Farrar, Elijah 
 Paine, Asa McFarland, John Smith and Seth Payson, were sev- 
 erally, seasonably and duly summoned to attend a meeting of 
 said trustees holden at Concord, in the count}' of Rockingham, in 
 said State on the fourth day of February, A. D. 1817, agree- 
 ably to the provisions of an act of the Legislature of said State, 
 passed December 18th, A. D. 1816, then and there to aid and 
 assist in transacting business that was then and there important to 
 be done to promote the interest and prosperity of said institution, 
 and that their presence and attendance respectively were then
 
 134 DARTMOUTH COLLEGE CAUSES. 
 
 and there necessary, of which they were severally well knowing, 
 but that they, the said Nathaniel Niles, Timothy Farrar, Elijah 
 Paine, Asa McFarland, John Smith and Seth Payson, in viola- 
 tion of their respective duties, severally neglected and refused to 
 attend said meeting of the trustees, at that time and place. 
 
 By means of all which the provisions of the several acts afore- 
 said have been contravened, and the interests of said institution 
 injuriously affected." 
 
 Which report being considered, — 
 
 Voted, That the said charges relative to the said Nathaniel 
 Niles, Timothy Farrar, Elijah Paine, Asa McFarland, John Smith 
 and Seth Payson, be taken into consideration and acted upon by 
 this board at the hall commonly called Mason's Hall, over the 
 Bank, in the southerl}^ end of the Main Street, in Concord, in the 
 county of Rockingham, on Saturday the 22d day of February 
 instant, at ten o'clock in the forenoon; and that the secretary 
 cause the said Nathaniel Niles, Timothy Farrar, Elijah Paine, 
 Asa McFarland, John Smith and Seth Payson, to be severally 
 notified and cited to appear before this board at the said time and 
 place, to answer to the said charges, and to shew cause, if any 
 they have, why they should not severally be displaced, discharged 
 and removed from their respective offices as trustees of said Uni- 
 versity, by causing a copy of said charges and this vote to be 
 delivered to each of them respectively, or left at their respective 
 dwelling-houses, at least eight days before the said 22d day of 
 February. 
 
 Similar, and in almost all respects identical, charges vrere 
 preferred against President Brown. 
 
 The specifications against Professors Shurtleff and Adams 
 were, in substance, — 
 
 1. The same as the third charge preferred against the 
 trustees. 
 
 2. That they had performed certain acts as professors of 
 the institution without taking the oaths of allegiance, etc. 
 
 3. That they conspired with Mr, Brown and others to 
 impede, obstruct, and prevent the due execution of the act, 
 and did so to the great injury of the University.
 
 ANSWER OF BROWN AND OTHERS. 135 
 
 J) 
 
 4. That their conduct had Ijeeii in direct oppovsition to 
 the law, hostile and injurious to the institution, tmd con- 
 trary to the duties of their respective offices. 
 
 Messrs. Brown, Shurtleff, and Adams, on February 20, 
 1817, made the following reply : — 
 
 We have severally received a communication from the Hon- 
 orable William H. Woodward, containing specifications of charges 
 against us, in our official capacities, and citing us to appear before 
 your Excellency and your Honors " at the hall commonly called 
 Mason's Hall, over the Bank, at the southerly end of the Main 
 Street, in Concord, in the county of Rockingham, on Saturday, 
 the twenty-second day of February, instant, to show cause, if any 
 we have, why we should not be displaced, discharged and removed 
 from our respective offices in Dartmouth University. ' ' 
 
 In reply, we beg leave respectfully to state that we have had 
 and still have great doubts whether the act of the honorable Legis- 
 lature of this State, approved June 27, 1816, and the act approved 
 December 13, 1816, under which acts your Excellency and j'^our 
 Honors have organized by the name of the Trustees of Dartmouth 
 University, can have validity and effect without the acceptance of 
 the said acts by the Trustees of Dartmouth College as consti- 
 tuted by the charter of 1769 ; and the said trustees of Dartmouth 
 College have not as yet accepted the acts aforesaid, but have 
 expressly dechned accepting the act of June, by a vote of the 
 twenty-eighth day of August last. 
 
 Our doubts on this subject have arisen not merely from our 
 own understanding of the Constitutions of this State and of the 
 United States, but also from the opinion of a very large portion 
 of the community, comprising, as we believe, a great majority of 
 the ablest law characters in this and the neighboring States. 
 
 These doubts have received no small degree of confirmation 
 from the arguments and reasons adduced by the minority of the 
 House of Representatives in their protest against the act of June ; 
 from the doubts entertained on this subject by his Excellency, 
 the Governor, and the honorable Council, as implied in their 
 application to the judges of the Superior Court for their opinion ; 
 and from the answer of the said judges, in which they expressly 
 state that they had not formed any opinion on the question.
 
 136 DARTMOUTH COLLEGE CAUSES. 
 
 With this view of the subject, therefore, we deem it our duly 
 to wait the result of an appeal to the judicial tribunals, which 
 has recently been made by the Charter Trustees. The judiciary 
 we consider an essential and independent branch of the sover- 
 eignty, and that branch which alone is competent to a final 
 determination of this question ; and to their decision, whenever 
 obtained, and whatever it may be, we shall readily conform. 
 
 None of the trustees or professors appeared to answer the 
 charges which had been preferred against them. Mr. 
 Brown as president and trustee, Mr. Shurtleff as profes- 
 sor of divinity, Mr. Adams as professor of mathematics, 
 and Messrs. McFarland, Payson, and Farrar as trustees, 
 were severally removed from their respective offices. 
 
 The University was duly organized. Dr. Wheelock and 
 Judge Woodward were reinstated ; but Professor Allen, the 
 son-in-law of AVheelock, was made acting president until 
 the restoration of Wheelock' s health. 
 
 On February 20, 1817, Brown, " in behalf and at the 
 request of the corporation," in a public address, said : — 
 
 "The trustees of Dartmouth College consider it due to the 
 pubhck, and especially to the members of the institution and their 
 friends, explicitly to make known the course they design to pur- 
 sue, and their opinion relative to the state and prospects of the 
 college. 
 
 "The trustees commenced the suit at law, which is still pend- 
 ing, from a full conviction that this measure was demanded of 
 them as the constituted guardians of this valuable seminary, and 
 as friends to the literature and the literary establishments of theu* 
 country ; and it is their fixed determination to prosecute it, and 
 to avail themselves of every constitutional expedient for protect- 
 ing the college, till the question in controversy shall be tried on 
 its merits and decided by the highest judicial tribunal of this 
 nation. 
 
 "They have an undiminished confidence that the decision will 
 be in favor of their rights, as secured by the charter ; and that 
 they shall again be put in possession of the buildings and other 
 property, of which they have been deprived. If, however, the
 
 REMOVAL ADDRESSES . 137 
 
 decision in the last resort should be against them, they will no 
 longer claim a corporate existence, and Dartmouth College will 
 have been effectually destroyed. In that event, the students, 
 should they desire it, will be recommended to either of the col- 
 leges in New England ; and from what is known of the opinions 
 and feelings of the trustees and instructors of these institutions, 
 full confidence is entertained that the students thus recommended 
 will be readily received. Nor is there any ground for a doubt, 
 that the diplomas conferred by this corporation, so long as their 
 rights remain a subject of judicial inquiry, will be recognized as 
 valid by all literary and professional bodies throughout the coun- 
 try." 
 
 After their removal, the faculty published tlie following : 
 
 AN ADDRESS 
 
 OF THE EXECUTIVE OFFICERS OF DARTMOUTH COLLEGE TO THE 
 
 PUBLICK. 
 
 As the undersigned, after the most serious and mature con- 
 sideration, have determined to retain the offices which they re- 
 ceived by the appointment of Trustees of Dartmouth College, and 
 not voluntarily to surrender at present any property committed to 
 them, nor to relinquish any privileges pertaining to theh' offices, 
 they believe it to be a duty which they owe to the publick, no less 
 than to themselves, to make an explicit declaration of the princi- 
 ples 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 
 practised 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 exer- 
 cised 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 imtil the other branches shall have had
 
 138 DARTMOUTH COLLEGE CAUSES. 
 
 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 judi- 
 cial 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 publick, 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 provi- 
 sion." In the preamble to this resolution we find a paragraph in 
 the words following: "They (the Trustees) find the lawfully 
 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 ac- 
 cept, anj'^ act or grant conferring additional powers or priAaleges, 
 or making any restriction or limitation of those they already pos- 
 sess ; and in case a grant is made to individuals or to a corpora- 
 tion, without application, it is to be regarded not as an act obliga- 
 tory or binding upon them, but as an offer or proposition to con- 
 fer 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 opinions 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 non-acceptance 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
 
 ADDRESS OF EX-OFFICERS. 139 
 
 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 in- 
 jurious 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, the}- 
 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 had 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 judi- 
 cial 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
 
 140 DARTMOUTH COLLEGE CAUSES. 
 
 fellow-citizens will have the unkindness to chai'ge them with a want 
 of respect for 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 position 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 un- 
 necessarily severe ; nor do they see what purpose it was calculated 
 to answer, except to influence them, by the prospect of embar- 
 rassing 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, 
 nor 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 accom- 
 modations 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. 
 
 Pebruaky 28, 1817.
 
 wheelock's bequest. 141 
 
 On April 11, 1817, Dr. Wheelock died, having bestowed 
 npon the University, hy his last will, property amounting 
 to about $40,000. 
 
 On June 10, 1817, Cyrus Perkins was appointed a trustee 
 in the place of Judge Farrar, Rev. Elijah Dearborn in the 
 place of Mr. McFarland, and Rev. Thomas Beede in the 
 place of Seth Payson ; and on the same day Roger Vose 
 was appointed an overseer in the place of Arthur Liver- 
 more, resigned.
 
 CHAPTEK yi. 
 
 TEUSTEES V. WOODWARD —PKOCEEDINGS IN THE SUPERIOR 
 COURT — ARGUMENTS AT HAVERHILL — AGREEMENTS OF 
 COUNSEL — COURT AND COUNSEL — VIEWS OF MARSH AND 
 CHTEP JUSTICE PARSONS — THE GREAT ARGUMENTS AT 
 EXETER— OPINION OF THE STATE COURT, BY CHIEF JUS- 
 TICE RICHARDSON — WHAT WEBSTER AND CHANCELLOR 
 KENT THOUGHT OF IT — DIFFICULTIES IN DRAWING THE 
 SPECIAL VERDICT — CAUSE, WHEN AND HOW TAKEN TO 
 THE SUPREME COURT OF THE UNITED STATES — CORRE- 
 SPONDENCE— COUNSEL AT WASHINGTON. 
 
 At the May term, 1817, of the Supreme Court of Judica- 
 ture, the following plea of the defendant was filed by his 
 counsel, Sullivan and Bartlett : — 
 
 And the said William H. Woodward comes & defends, &c., 
 when, &c., and prays judgment of the plaintiffs writ aforesaid, — 
 because he says, that before the day of the purchase of the 
 plaintiffs writ, by a statute of this State passed on the twenty- 
 seventh day of June, in the year of our Lord 1816, entitled " An 
 act to amend the charter & improve & enlarge the corporation of 
 Dartmouth College," among other things is enacted, "that the cor- 
 poration heretofore called and known by the name of the Trustees 
 of Dartmouth College, shall ever hereafter be called and known by 
 the name of the Trustees of Dartmouth University," — and that the 
 said plaintiff at the day of the purchase of his said writ was, and 
 ever since hath been & is named & known & called by the name 
 of the Trustees of Dartmouth University. Without this that the 
 said plaintiff on the day of the purchase of his said writ was or 
 since hath been or is named & known & called by the name of the 
 Trustees of Dartmouth College as by the said writ is supposed — 
 to wit : at Plymouth aforesaid, and this the said Woodward is 
 ready to verify. Wherefore he prays judgment of the writ afore- 
 said, and that the same may be quashed, &c. 
 
 (142)
 
 PLEADINGS AKGUaiENTS AT HAVEKHILL. 14H 
 
 The orio^inal lies before us. It bears the followiiiir iii- 
 dorsement of Judge Smith: ^' Semble, Bad. XI MS. 
 Eep. 179." 
 
 This plea was probably withdrawn by some arrangement 
 between counsel. 
 
 Upon the motion of Judge Smith, the original declaration 
 to which we have referred was struck out, and an amended 
 one, in his handwriting, was "filed by leave of court, to 
 be inserted in lieu of the original declaration." The 
 amended declaration was " trover for two Books of Rec- 
 ords, purporting to contain the records of all the doings 
 and proceedings of the Trustees of Dartmouth College, 
 from the organization of the corporation until the 7th day 
 of October, 1816, of the value of $5,000, — the original char- 
 ter of letters patent constituting the College, of the value 
 of $10,000,— the Common Seal, of the value of $1,000,— 
 and four volumes of Books of account, purporting to con- 
 tain the charges and accounts in favor of the College, of the 
 value of $10,000." The conversion was alleged to have 
 been made on the 7th day of October, 1816, and the plain- 
 tiff's damages laid at $50,000. 
 
 This term of the Superior Court ended May 24, 1817. 
 Before its close, the cause was ably argued by counsel on 
 both sides. 
 
 Mr. Farrar, one of the counsel for the trustees, who 
 reported the case, says that at this term "the argument 
 was opened on the part of the plaintiffs by Mr. Mason and 
 Mr. Smith, and on the part of the defendant by Mr. Bart- 
 lett and Mr. Sullivan." The State report, prepared by Mr. 
 Adams, the able and experienced clerk of this court, under 
 the eye of the judges, says: "The cause was argued in 
 this county, at the last [Ma}^] term of this court, hy Mason 
 and Smith for the jilaintiffs, and by the attorney -general 
 for the defendant." 
 
 No verdict had been rendered in the case, and it was 
 apparently argued upon the declaration, the printed charter.
 
 144 DARTMOUTH COLLEGE CAUSES. 
 
 and copies of the laws the validity of which was in ques- 
 tion, without any written agreement or statement of 
 facts. 
 
 The counsel for the defence drew up the following agree- 
 ment : — 
 
 It is agreed by the counsel for the parties that the case be 
 stated in a special verdict, to be drawn up (before the opinion of 
 the court shall be delivered) by the counsel, under the direction 
 of the court. The verdict to contain all things necessary & 
 proper, in the opinion of the court, to raise the questions on the 
 validity of the acts of the Legislature of June 27, 1816, entitled 
 "An act to amend the charter & improve & enlarge the corpora- 
 tion of Dartmouth College" — and the act of Nov., entitled "An 
 act in addition to an act to amend the charter," &c. 
 
 And all the facts necessar}' to raise the question upon the 
 validity of those acts are admitted by the parties. 
 
 That the corporation of Dartmouth College had a charter from 
 Governor Wcntworth in 1769, which, if necessary, may make a 
 part of this statement — that a Board of Trustees was duly organ- 
 ized under said charter, «fec., — that Nath'l Niles & the others 
 claiming to be Trustees of Dartmouth College were duly ap- 
 pointed, «S;c. — that the acts of the Legislature before named, if 
 necessary, make a part of this statement — that agreeably to the 
 provisions of said acts a Board of Trustees was duly organized on 
 the 4th of February, 1817, and Wm. H. Woodward chosen & 
 qualified as Secretary & Treasurer of said Board, & had possession 
 of the records, &c., which had belonged to Dartmo. College — 
 that Nathl. Niles and seven others, claiming to be Trustees of 
 Dartmo. College, refused to comply with the provisions of the 
 Legislative acts aforesaid, or any part of them, & proceeded to 
 remove Wm. H. Woodward from the offices of Secretary & 
 Treasurer of Dartmo. College, which offices he had held previous 
 to the passing of said acts — that they chose Mills Olcott, Esq., 
 Secretary & Treasurer — who, on the sixth day of February, 
 demanded the College books, &c., of said Woodward, who refused 
 to give them up, claiming to hold them as Secretary and Treasurer 
 of the Trustees of Dartmouth Universit}'. 
 
 And it is agreed that any other facts may be embraced in
 
 AGREEMEIS'TS TROPOSED AND MADE. 145 
 
 such special verdict, that tlie court shall deem necessary to a 
 decision on the merits. 
 
 In case the decision should be in favor of the plaintiffs, it is 
 agreed that the court enter judgment for such sum in damages as 
 they may think proper, which judgment shall be discharged on the 
 delivery to the plaintiffs by the defendant of the books, &c., in 
 his possession which are sued for. 
 
 This draft is in the handwriting of Mr. Bartlett. It bears 
 the following indorsement in the handwriting of Judge ^ 
 Smith: "Statement proposed by deft., May Term, 1817, 
 Grafton." It is obvious, for reasons deemed sufficient for 
 them, that the astute counsel for the plaintiffs rejected this 
 aofreement, and caused one of their 'own to be substituted 
 for it. 
 
 On the day after the May term, 1817, the counsel entered 
 into the following agreement : — 
 
 Trustees of Dartmouth College vs. W. H. Woodward. It is 
 agreed by the counsel for the parties that the case be stated in a 
 special verdict, to be drawn up, (before the opinion of the Court 
 shall be delivered) by the counsel, under the direction of the 
 Court. 
 
 The verdict to contain all things necessary and proper, in the 
 opinion of the Court, to raise the question on the validity of the 
 acts of the Legislature on the subject of the College or University. 
 
 Jeremiah Smith, ) ^^^ p^.^ 
 25 May, 1817. J. Mason, S 
 
 Sup. Court, Geo. Sullivan, ) ^i r^^ 
 
 Grafton. Icha. Bartlett, ' 
 
 Mr. Brown, in his letter to Farrar, of May 28, 1817, says : 
 " Your obliging letter from N. Ipswich, I should have 
 acknowledged before this time, had not ordinary & extra- 
 ordinary cares occupied the whole of my attention. Imme- 
 diately after receiving it we had a consultation respecting 
 the subject to which it relates, & determined to print with-
 
 146 DARTMOUTH COLLEGE CAUSES. 
 
 out delay. Spear actually begun the work. But two diffi- 
 culties arose, which made us suspend, & at length give over 
 the design. In the first place, the pamphlet could not have 
 come out a sufficient time before the sitting of the court to 
 accomplish much ; in the second place, we scarcely knew 
 how to defray the exjDeuse. But what are 40 or 50 doll, 
 you will say ? The sum appears trifling. But it must be 
 considered, that we have had & still have, a large number 
 of such trifling sums to raise for extraordinary purposes, 
 and that after these are provided for, we can scarcely live 
 on what remains. This famous gentleman, the Publick, 
 though his liberalty has been much bruited, clenches his fist 
 & turns away his eye, with a most provoking indifierence, 
 when the College begins her story of distress. — However, 
 I wish not to be ungateful. We have received something : 
 .& I trust, shall receive enough to enable us to go for- 
 ward. 
 
 " The result at Haverhill is, on the whole, the best, we 
 think, that could have been. The impression on all who 
 were present is favourable. Wo feel strengthened and 
 encouraged. It will do us good to have the cause argued 
 at Exeter. The merits of our side will beconie better 
 known, & the impulse given to the judges will be salutary. 
 Hitherto God hath helped us, & in His name we will trust. 
 
 " The next subject in order is the Commencement. You 
 must endeavour to give us a lift by helping us to numbers 
 & respectability. We hope to have exercises which will not 
 dishonour us. The other party (if they get forward at all) 
 will endeavor to make a great display — and democracy, 
 I suj^pose, will do its best. Eumor says, that the Univ. 
 officers are to be the performers at their commencement, & 
 that they, after delivering their orations, are to be inaugu- 
 rated with much pomp. It seems to me that this will be a 
 pretty cold business, especially after what has taken place 
 at Haverhill.
 
 LETTERS BROWX TO FARRAR. 147 
 
 *' There was much of truth in Mr. Mason's remark, that 
 'the boys would determme this controversy.' Our grad- 
 uating class will leave a large space to be supplied, & our 
 friends through the country must do all that belongs to 
 them to procure us a good class next autumn. The College 
 is in an excellent state. Still, parents will fear. I wish 
 that Mr. P. & yourself would consider whether anything 
 can be done for us in your part of the State. Prof. Adams 
 has procured an apparatus from Salem & Boston. Can 
 anything favourable, i.e., in proof of the permanency of 
 the College, be made of my declining the offer at Hamilton? 
 The prospects of that institution are highly promising, & 
 the salary offered, $1800 — double the salary here. If 
 you think our cause would be aided by noticing the cir- 
 cumstance of my declining, you may do it, as you judge 
 proper. 
 
 ' ' Will it still be best to publish a pamphlet ? There will 
 now be time enough ; & if our friends think proper, it shall 
 be done. Our friend P. complains a little about the man- 
 ner of engaging counsel ; except, however, the neglect at 
 Washington, I have nothing to regret. The business T\ill 
 end well enough. Allow me, my dear Sir, to give you my 
 unfeigned thanks for your uniform kindness, zeal, and alac- 
 rity in our behalf. We shall not repay you ; but we shall 
 be grateful &, we hope you will continue to help us profes- 
 sionally & otherwise whenever you have an opportunity. 
 The papers have announced the death of your kind and 
 excellent mother. In a family bound together as strongly 
 as yours, this separation will be most tenderly felt. May 
 God support you all, & sanctify the dispensation to you. 
 Your excellent Father will feel like a pilgrim & stranger 
 indeed. Thus we fill the days allotted us & then depart. 
 Oh how excellent that religion which surrounds the grave 
 with light & hope, & reveals a sure immortality to the 
 people of God." 
 
 In his letter to the same, of September 23, 1817, Mr.
 
 148 DARTMOUTH COLLEGE CAUSES. 
 
 Brown says : " I am more and more in favour of the print- 
 ing, & think I can warrant you 100 subscribers in this place 
 & the immediate vicinity. I wish you to call on the Judges 
 without delay, that they may have knowledge of our pur- 
 pose to lay the wiiole subject before the publick. This 
 must operate as an additional motive to them to do justice. 
 Secure the copyright. 
 
 "We came to Concord on Saturday, and reached home 
 last evening. We find 19 have been admitted; 14 to the 
 Freshman Class. We think the Univ. may get 4 or 5 ; per- 
 haps more. We hope a considerable number more will 
 join us. 
 
 "In reflecting on the argument. Prof. A. & myself have 
 concluded it is almost impossible for the Judges to decide 
 against us. — Can you not ascertain what the decision will 
 be, soon, & communicate your opinion to us? — It is pre- 
 sumed the hook^ in boards, will not exceed in price one 
 dollar." 
 
 The cause was continued to the September term, 1817, at 
 Exeter, in Rockingham County, for further argument, as 
 the counsel for the trustees were uniDrepared to reply as 
 fully as they desired. 
 
 The intellectual gifts of the court and counsel were wor- 
 thy of the greatness of the cause. As but two of them had 
 a national reputation, a brief sketch may not be out of 
 place. The court consisted of William Merchant Richard- 
 son, Samuel Bell, and Levi Woodbury. 
 
 Chief Justice Richardson was forty-four years old. He 
 was a graduate of Harvard, a member of Congress from 
 Massachusetts in 1812, and was subsequently reelected; 
 but, being averse to political life, resigned and removed to 
 Portsmouth, in his native State, in 1814. From his appoint- 
 ment, in 1816, till his death, in 1838, he was chief justice of 
 the highest court. Physically he was as imposing as he 
 was great intellectually. Like Marshall's, his eyes were 
 black, piercing, and brilliant; like Marshall's, his hair was
 
 JUDGES OF THE STATE COURT. 149 
 
 black as a raven's wing; and like Marshall, he had refined 
 and simple tastes ; but, unlike Marshall, he had a full, high, 
 and broad forehead. In learning and industry he ranked 
 with Chief Justice Parsons. He was a great and honest 
 judge. Some judges owe much of their eminence to their 
 subtlety in judicial fence, — a species of cuttle-fish logic. 
 They succeed by darkening. It is oftentimes hard to an- 
 swer, because difficult to understand them. This great 
 attribute, though not great judicial quality, Richardson 
 lacked. His reasoning and his heart alike were as open 
 and ingenuous as the light of day. He was reverenced by 
 the people of the State as no other judge ever was. 
 
 Judge Bell was forty-seven years old. His was a family 
 famous for their talent. He was the father of the late Chief 
 Justice Bell; trustee of Dartmouth College (of which he 
 was a graduate) from 1808 to 1811 ; judge from 1816 to 
 1819 ; governor from 1819 to 1823, and United States sena- 
 tor from 1823 to 1835. He was a man of immense erudi- 
 tion and great business capacity, a thorough lawyer, and 
 possessed of great moral courage. 
 
 Judge Woodbury was twenty-eight years old. He was a 
 graduate of Dartmouth ; Avas judge from 1817 to 1819 ; 
 governor in 1823 ; United States senator from 1825 to 
 1831 ; secretary of the navy under Jackson, from 1831 to 
 1834; secretary of the treasury from 1834 to 1841, under 
 Jackson and Van Buren ; and then declined the office of 
 chief justice ol New Hampshire. He was again senator in 
 Congress from 1841 to 1845, when he was appointed by 
 President Polk one of the justices of the Supreme Court of 
 the United States, which office he held until his death, in 
 1851. The probabilities are very strong that he would 
 have been president in the place of General Pierce, had his 
 life been spared. Of Judge Woodbury, Webster, in his let- 
 ter to Judge Story, of January 4, 1824, said, speaking of 
 two appointments that might be made to that bench,
 
 150 DARTMOUTH COLLEGE CAUSES. 
 
 "There is no doubt that Judge Woodbury would be one, 
 and he is as sound a man as I know of. ' ' Richardson was a 
 Federalist ; Bell and Woodbur;/ were both Anti-Federalists. 
 Mason, a competent judge, if ever any man was, said of 
 these judges, that " three more men so well qualified as the 
 present judges, and who would accept the office, could not 
 be found in the State." 
 
 It is not quite clear whether Judge Woodbury participated 
 in the decision of the cause. 
 
 The earlier volumes of the New Hampshire Reports were 
 reported by the judges themselves. Every judge prepared 
 for the press the head-notes, statement of case, and opinion 
 in each cause in which the judgment of the court was pro- 
 nounced by him. In every case when the full bench did 
 wot sit, the State report containing the case assumes to 
 show the fact ; but there is nothing in it to indicate that 
 Judge Woodbury did not participate in this decision . Judge 
 Farrar, in his report, assumes that all the judges sat, saying : 
 
 At the September Term, in Rockingham County, present all 
 the Judges, viz. : — 
 
 Hon. William M. Richardson, Chief Justice. 
 Hon. Samuel Bell, ) 
 
 TT T Trr i Justices. 
 
 Hon. Levi Woodbury, 3 
 The cause came on to be again argued. 
 
 We have before us, as we write, the printed copy of the 
 opinion, etc., furnished by the chief justice to Governor 
 Plumer. After entitling the cause, and stating when and 
 where the opinion was delivered, there follows : — 
 
 Present. 
 Hon. William M. Richardson, Chief Justice. 
 Hon. Samuel Bell, 
 Hon. LevyWoodburi 
 
 ' > Justices. 
 
 RY, ' 
 
 As we have before said. Justices Bell and Woodbury were 
 graduates of Dartmouth. Webster, in the "Caesar in the
 
 JUDGES — COUNSEL. 151 
 
 Senate " peroration in his argument at Exeter, begged them, 
 as alumni of the College, to forbear the fatal blow which, 
 Brutus-like, would come so near the heart of their alma 
 mater. 
 
 But, upon the other hand, the manuscript dockets of the 
 clerk of that court show the following entries at the May 
 and November terms, 1817 : — 
 
 Olcott, * * * Trus. Dartmouth College, Appees., v. 
 Wm. H. "Woodward. 
 Jus. Woodbury does not sit. 
 
 Continued nisi. 
 Olcott. 
 May, 1817. 29. Trustees Dartm°. College, A2)ts. v. 
 
 Jury as in William H. Woodward. 
 
 No 4, Hon^'® Judge Woodbury does not sit 
 
 State Trials. in this case. 
 
 Verdict — Deft, not guilty. 
 Judgt. for Deft., his costs taxed at 
 811.42. 
 
 These entries were in some respects manifestly incorrect. 
 Papers on the files show that the cause was never tried by a 
 jury. We know that the defendant had counsel, and that 
 Mr. Olcott was not sole counsel for the plaintiffs. 
 
 At the September term. Mason, Smith, and Webster ar- 
 gued the cause for the trustees, and Sullivan and Bartlett 
 for the State. These were all members of the Rockingham 
 bar, when it was literally " an arena of giants." Of this 
 bar Judge Story said that it had ' ' vast law learning and 
 prodigious intellectual power." 
 
 At the Circuit Court for New Hampshire, October, 1812, 
 Judge Story made the following orders : — 
 
 Whereas, the court have a full knowledge of the learning, 
 integrity and ability of the Honorable Jeremiah Smith, and the 
 Honorable Jeremiah Mason, and upon the most entire confidence 
 therein, and being willing to express this opinion in the most public 
 manner, as well as a testimony to their merits, as also a laudable 
 example to the junior members of the bar; and the court having
 
 152 DARTMOUTH COLLEGE CAUSES. 
 
 taken the premises into their mature deliberation, of their own 
 mere motion and pleasure, have ordered, and do hereby order, 
 that the honorable degree of serjeant-at-law be and hereb}- is con- 
 ferred upon them, the said Jeremiah -iraith and Jeremiah Mason, 
 and the court do further order they be respected as such by all 
 the officers of this court, and all others whom the same may con- 
 cern, and that this order be entered upon the records -of the 
 court." "The court, on mature deliberation, do order that the 
 degree of barrister-at-law be and hereby is conferred on the fol- 
 lowing gentlemen, who are counsellors of this court, viz. : Oliver 
 Peabody, Daniel Humphreys, George Sullivan, and Daniel Web- 
 ster, esquires ; in testimony of the entire respect the court enter- 
 tain for their learning, integrity and ability ; and the court further 
 order that this order be entered among the records of the court." 
 
 At the time of the argument, Smith was fifty-eight years 
 old ; Mason, fifty ; Sullivan, forty-three ; Webster, thirty- 
 five ; and Bartlett, thirty-one. Mason was from Connecti- 
 cut, but read law and commenced practice in Vermont. He 
 was six feet and seven inches in height, and proportionately 
 large in other respects. His intellectual exceeded his physi- 
 cal stature. Webster, with a thorough knowledge of the 
 man, deliberately wrote down that as a lawyer, as a jurist, 
 no man in the Union equalled Mason, and but one ap- 
 proached him, and a quarter of a century later as deliber- 
 ately reaffirmed his estimate. Mason had two loves, one 
 desire, and one passion. He loved his family, resigning his 
 position as United States senator rather than be separated 
 from them t, and next to his family, he loved the law de- 
 votedly. He desired a competence, and his passion was a 
 vitriolic contempt. The gifts and graces of the orator were 
 denied to this great man, but on his feet in the court-room 
 he was seemingly an inspired Euclid. 
 
 Smith had been four terms in Congress, judge of the 
 United States Circuit Court, chief justice of the Superior 
 Court for seven years ; then governor of the State, and then 
 cliief justice of the Supreme Court for three years. He 
 was of Scotch-Irish stock ; possessed of great and accurate
 
 THE COUNSEL. 153 
 
 learning, and of great natural abilities j but, like Mason, he 
 was no orator. 
 
 Webster, in his letter to Chancellor Kent, of May 23, 
 1825, says : " You know Judge Smith, of New Hampshire, 
 at least in his public and professional character. I wish to 
 recommend him to you on the score of private worth and 
 social qualitieSc There are few men in the world, I think, 
 more to your taste « 
 
 " I entertain for hini the highest regard, and true grati- 
 tude. When I came to the bar he was chief justice of the 
 State. It was a day of ' the gladsome light ' of jurispru- 
 dence. His friends, and I was one of them, thought he 
 must be made governor. 
 
 " For this office we persuaded him to leave the bench, 
 and that same ' gladsome light ' cheered us no longer. 
 Ponto nox incuhat astra. I need not continue Virgil, nor 
 say how the east wind, and the north wind, and the stormy 
 south wind all rushed out together, and what a shipwreck 
 they made both of law and parties. 
 
 " Judge Smith has since occasionally practised the law, 
 but for some years has lived entirely, I believe, with his 
 books and his friends. He knows everything about New 
 England, having studied. much its history and its institu- 
 tions ; and as to the law, he. knows so much more of it than 
 I do, or ever shall, that I forbear to speak on that point." 
 
 The merit of this is its truthfulness. 
 
 Of Webster, the " Great Black Giant of the East," it is 
 only necessary to say that he was in full possession of his 
 great powers. 
 
 Sullivan was from Irish and Revolutionary stock, — a race 
 of soldiers, orators, and lawyers. He was attorney-general 
 (as his father was before him, and his son after him) for 
 twenty-one years ; a classical scholar, well read in the law ; 
 an excellent special pleader ; swift to perceive, prompt to 
 act, and full of resources. He relied too little on his prep-
 
 154 DAETMOUTH COLLEGE CAUSES. 
 
 aration, and too much upon his oratory, his power of illus- 
 tration and argument. But neither the court, the jury, nor 
 the people ever grew weary of listening to his silver tones or 
 his ariruments, that fell like music on the ear. 
 
 Bartlett, the uncle of the present president of the College, 
 was also of Revolutionary stock. He and Webster were 
 from the same town, and theirs were the two leading families 
 in it. 
 
 Bartlett was a "little giant," four years younger than 
 Webster. He served three terms in Congress. He was 
 from a family eminent for its physicians, preachers, and 
 jurists. He was indefatigable in preparation ; eloquent in 
 its highest sense ; ready, witty, and a popular idol. He 
 was often pitted against Mason and other great lawyers. 
 Between Webster and Bartlett there existed a personal and 
 political antipathy, which continued for years . This cropped 
 out in the argument of this cause, and is very apparent 
 from Mr. Webster's correspondence. 
 
 At the September term, 1817, the counsel for the College 
 met at Exeter, thoroughly prepared for the argument. 
 
 A portion of the old trustees put their case primarily upon 
 what may be termed the Parsons view, and the others, 
 upon the contract theory and the obligation clause. The 
 former view was supported by Thompson, Marsh, Mason, 
 and Webster, though they also gave countenance to the 
 other theory. 
 
 It was but natural that Thompson should share the views 
 of Parsons. He read law with him ; was a favorite student, 
 familiar with his history and opinions ; and in the remon- 
 strance of June 19, 1816, which was undoubtedly prepared 
 by Thompson, and from which we have before quoted, the 
 Parsons view alone is reflected. 
 
 Marsh, as we have already seen, was a leading trustee, 
 and the one through whom Welister proposed to bring one 
 of the College causes in the Circuit Court. He was plaintiff
 
 THE COUNSEL MARSH. 155 
 
 in one of those suits, and was relied upon by Mason, Smith, 
 and Webster to take their places, and argue these causes in 
 the Circuit Court. 
 
 Mason, in his letter to Marsh, of April 14, 1818, says : 
 *' The counsel engaged in your first cause being j)retty well 
 exhausted, we shall expect you to come with a treasury of 
 new things, and that you will take upon you [the] principal 
 burden of the argument." 
 
 In his letter of September 11, 1818, to the same, Mason 
 says : "I wrote you a few days ago. I have since received 
 a letter from Mr. Webster, in which [he] seems to think it 
 of primary importance to have one of the causes carried to 
 the Supreme Court. Under this impression I think you had 
 best attend the Circuit Court if possible. You will remem- 
 ber Judge Story said if necessary he would hold a special 
 term for these causes." 
 
 In 1816, Marsh prepared the following "Minutes of 
 authorities and observations in relation to the afiairs of 
 Dartmo' College," in answer to the arguments on the 
 other side, and particularly to the message of Governor 
 Plumer : — 
 
 " The Parliament of Great Britain, consisting of the king, 
 lords and commons (the three estates of the kingdom), is 
 said in the vaunting language of legal & political writers, to 
 be omnipotent. Anciently the king was absolute — all 
 power & authority being vested in the person of the king, 
 he parcelled it out to the lords & commons at different 
 periods, according as he found it necessary to flatter the one 
 or the other, till the present Constitution became firml}^ 
 established. In 1295 — 23dE 1st the first regular meeting of 
 the commons was called by an invitation of Edward First to 
 the different towns & boroughs in the counties, to send dep- 
 uties to the Parliament. In 1296 — 24 Ed I. the king 
 stipulated to levy no tax or impost without the consent of 
 the lords & commons. The right of trial by jury that ' no 
 freeman should be imprisoned or disseised of his freehold,
 
 156 DARTMOUTH COLLEGE CAUSES. 
 
 or liberties or of free customs, &c., but by legal judgment 
 of his peers or by law of the land,' had been enjoyed under 
 the Saxon monarchs — & though suppressed by William the 
 Conqueror was again revived by the claims of the people, 
 & confirmed by his descendants Henry II. & John ; & 
 this last prince in 1215, signed the Charter of the For- 
 rest ; and at the same time that famous grant of English 
 liberties, the Magna Charta. 
 
 " Thus by successive grants, & by slow degrees, the abso- 
 lute power of the crown became vested in the three estates of 
 the kingdom, the king, lords & commons. But the finishing 
 limitation of the prerogatives of the crown was the act 
 13th William III. perhaps 1700, changing the terms of the 
 commissions of the 12 judges from durante bene placito to 
 quamdiu se bene gesserint. 
 
 ' ' And an act in the early part of the present reign ' that 
 the commissions of the judges shall continue in force not- 
 withstanding the demise of the Idng ' — the Parliament is 
 therefore omnipotent or absolute, having derived its powers 
 from the king, as the source of power and authority, & not 
 from the people ; and their pOwer not being derived from 
 the people, they are accountable to no one. 
 
 " The Constitution is made up of various grants & con- 
 cessions of the crown, & acceptances by the other estates ; 
 so that even an act of Parhament, limiting the power of the 
 respective branches, or varying the structure of the govern- 
 ment, is a part of the Constitution. The Parliament there- 
 fore is, in its authority, paramount to the Constitution as 
 existing at any given period. 
 
 " The Parliament of G. Britain being omnipotent, & 
 beyond control, can pass acts of attainder; &, in this sense 
 may be regarded as a high court of criminal jurisdiction. 
 This power is not given to any legislative body in the United 
 States. This may account for the expression in Blackstone, 
 1st B. Com. 485-512, that corporations may be dissolved 
 by act of Parliament ; & indeed is assigned as the reason
 
 marsh's argument. 157 
 
 though this dictum is supported by no decision Stat. 1 
 Geo. 1st. 
 
 " In February 1792, the people of N. Hampshire, being 
 then free & independent, framed, & adopted their present 
 Constitution, giving to the respective branches of the govt 
 their specific powers & authorities, dividing them into execu- 
 tive, legislative & judicial. 
 
 *'The powers of each, are equally derived from the 
 people ; & each is alike limited by the Constitution ; & 
 neither the people, or any individual, is any more bound by 
 any unconstitutional act of the Legislature than by any 
 illegal act of the meanest officer of the govt. The Legisla- 
 ture deriving its authority from the letter of the Constitu- 
 tion, it is impossible that it can ever pass any act of 
 paramount authority, or (make any law) in derogation of 
 its provisions. 
 
 * ' It may now be inquired whether the act of the late Gen- 
 eral Court entitled ' an act to amend the charter & improve 
 the corporation of Dartmouth College ' can be in any way 
 binding upon the old corporation, upon constitutional prin- 
 ciples, without the acceptance of the same by the corpora- 
 tion. 
 
 "It is remarkable that the people of N. Hampshire in 
 the declaration of their rights have asserted, and maintained 
 the right of trial by jury in the very words of Magna 
 Charta, ' no person shall be arrested, imprisoned, despoiled 
 or deprived of his property, immunities or privileges, put 
 out of the j)rotection of the law, exiled, or deprived of his 
 life, liberty or estate, but by the judgment of his peers, or 
 the law of the land.' (Con. N. H. Bill of Rights, sec. XV. ) 
 
 " In conferring power on the Gen Court, as a Legislature, 
 the Constitution expressly declares ' that full power & 
 authority are hereby given & granted to the said Gen Court 
 from time to time, to make, ordain & establish all manner 
 of wholesome and reasonable orders, laws, statutes, ordi- 
 nances, directions & instructions, either with penalties or
 
 158 DARTMOUTH COLLEGE CAUSES. 
 
 without, SO as the same be not repugnant to or contrary to 
 this Constitution.' 
 
 "Usurping authority not given by the Constitution by 
 either branch of the govt is acting both repugnant & con- 
 trary to the Constitution. If therefore, in passing this law 
 (act) the Legislature has assumed powers not delegated by 
 the Constitution ; (by) the very instrument by which the 
 Legislature is created, the act is void. A corporation is, 
 in law, a person ; and as such, is invested with property, 
 with immunities & privileges^ of which it cannot be di- 
 vested or deprived without a due investigation in a course 
 of legal proceedings, in which the facts with which it is 
 charged, and which are supposed to work a forfeiture of 
 their property and privileges, sliall be ascertained by the 
 finding of a jury, or conceded in the pleadings. The Legis- 
 lature is not a competent tribunal for the trial of facts on 
 which a forfeiture of life, liberty, property or privileges can 
 be predicated ; nor is it in any sense, a judicial tribunal. 
 If therefore, facts were ascertained, it could not pass a 
 judgmt of forfeiture. The Legislature can merely pass 
 laws for the establishment of courts of justice, & other gen- 
 eral laws, ordinances & regulations for the orderly conduct 
 of the people ; but have no power to carry them into effect 
 either as executive or judicial officers. 
 
 "But the act under consideration does, if carried into 
 effect, deprive the Trustees of Dartmo. College both of 
 their property, powers, immunities & privileges ; & vest 
 them in another body ; & this without any judgment or 
 forfeiture against them by any court of competent jurisdic- 
 tion. The act under consideration has altered the name of 
 the corporation from that of Trustees of Dartmouth College 
 to that of Trustees of Dartmouth University ; has provided 
 that instead of twelve, the body, shall consist of twenty- 
 
 ' By incorporation it acquires jus persona & becomes persona politica, & 
 is capable of all civil right habendi et agendi. (4 Com. Dig. 255, tit. "Fran- 
 chise," F.)
 
 MARSH S ARGUMENT. 159 
 
 one — that, instead of leaving the additional number to be 
 appointed by the trustees now in office, they shall be 
 appointed by the Governor & Council ; that all the rights, 
 powers, authorities, property, liberties, privileges & immu- 
 nities enjoyed by the Trustees of Dartmo. College, shall be 
 holden, used & enjoyed by the Trustees of Dartmo. Uni- 
 versity. This, then, is a direct act of usurpation, taking 
 property, rights, privileges & immunities from one body of 
 men incorporated so as to be one person^ in law, & giving 
 them to another body of men ; not only so, it is divesting 
 individuals of their rights &c. It is a privilege to have a cer- 
 tain proportion of power, & authority & property in any body 
 corporate ; to increase the number therefore is to divest each 
 individual of, at least, a portion of his property, power & 
 privileges. Now to divest any one of a part of his prop- 
 erty, rights or privileges, or immunities, though it be but a 
 part of what he holds in common with others, is the same 
 in principle ; & as much against the Constitution, as to 
 divest him of the whole. 
 
 " Depriving an individual member of a corporation of his 
 franchise, without authority for so doing ; and without con- 
 viction in due course of law, was adjudged to be a violation 
 of that clause of Magna CJiarta, J^l Co 99 Bagg's case; 
 ' but when a corporation had power to remove & did remove 
 for good cause, that will be deprivation by the law of the 
 land.' Idem. 
 
 " To deprive a whole corporation of its rights ; or any 
 portion of them must be a more gross infringement of the 
 Constitution of N. H. 
 
 " Suppose a township granted to 60 proprietors in com- 
 mon, could the Legislature by an act passed before any 
 division is made, admit 20 more persons as proprietors. 
 
 *' The authorities furnish no instance where a corporation 
 has ever been divested of its property or authority, or any 
 portion of either without regular process, in the nature of a 
 
 » 4 Com. Dig. 255, tit. "Franchise," F.
 
 160 DARTMOUTH COLLEGE CAUSES. 
 
 quo warranto in which the parties have been admitted to 
 the benefit of pleading to issue, & of trial as in other 
 cases. 
 
 ' ' During the tyranical reign of Charles the I & II when 
 the corporation of the city of London, & other corporations 
 in the kingdom were so much in the way of those ambitious 
 princes, it was never thought practicable to deprive them 
 of their privileges by an express act of the king or Parlia- 
 ment, but a quo warranto was always resorted to under 
 some pretext or other. 
 
 " The case of Gresham College is relied on ; this is col- 
 lected from the encyclopedia, or, perhaps, from Ree's 
 cyclopedia ; & can, at best, be regarded only as a diction- 
 ary, or more properl}^ a spelling-book authority ; & is suit- 
 able only to be quoted by school-boys. It is incidentally 
 mentioned in a biographical sketch of Sir Thomas Gresham ; 
 the particulars are not given ; yet so far as facts appear, it 
 is not an authority in point. The property in the case by 
 the will of Sir Thomas was vested in the corporation of the 
 city of London in 1579 ; with other property there was 
 given a building which was afterwards converted into a col- 
 lege, for the purpose of delivering certain lectures, by lect- 
 urers who should be appointed by the Maj^or & Aldermen 
 of London, & by the company ; & who should be unmarried 
 men ; & should have fifty pounds salary, & lodging rooms 
 in the college. It became necessary to remove this build- 
 ing in order to erect one for a more important purpose ; the 
 Excise office. The Mayor and Aldermen of London peti- 
 tioned Parliament for leave to remove this building ; & to 
 have the lecturers enjoy their salaries, notwithstanding they 
 should be married ; this was granted, by act of Parliament 8 
 Geo III & a stipulation made with the lecturers that in lieu 
 of their chambers, they should receive £50 more per 
 annum, & leave to marry ; and the lectures were afterwards 
 delivered in a chamber of the Roj^al Exchange, which had 
 been built by Sir Thomas Gresham at his own expense ; &
 
 marsh's argument. 161 
 
 from the income of which he had endowed these professor- 
 ships. 
 
 " This property was already vested in the corporation of 
 the city of London unconditionally ; but in trust that the 
 avails should be paid to unmarried lecturers. If the lectur- 
 ers married they would cease to be such ; the Parliament 
 dispensed with this, and enabled them to enjoy the salary 
 notwithstanding they should marry ; & all this was done at 
 the request of the corporation, & by agreement with the 
 lecturers. There is nothing in all this about moving the 
 college to another place. The corporation after taking 
 down the building, by consent of Parliament, provided 
 another lecture room, in a building given at the same time, 
 by the same donor, & paid the lecturers a compensation in 
 lieu of the use of their chambers. There is no attempt 
 here, to interfere with the property or powers of the cor- 
 poration, without its consent. 
 
 " It is said ' that in this country a number of the States 
 have passed laws which made material changes in the char- 
 ters of their colleges.' It is not here said whether this was 
 done at the request, or by the consent of their corporations. 
 It is believed that no instance can be found where this has 
 been attempted without such consent. The Legislature of 
 Massachusetts some few years since, passed an act that the 
 ministers of such & such parishes, should be, with others, 
 overseers of Harvard College; but Chief Justice Parsons, 
 who is said to have penned the act, inserted a proviso that 
 the act should be obligatory when accepted by the corpora- 
 tion ; & not till then. This was afterwards repealed & 
 subsequently reenacted, much in the same words : this is 
 a strong authority in our favor showing clearly the opinion 
 of C. J. Parsons, and of the Legislature of Massachusetts 
 that they could not interfere without the consent of the 
 corporation. No other instance of any attempt of the Idnd 
 is known, or believed to exist, in relation to Harvard College 
 or any other institution of the kind in the Commonwealth.
 
 162 DABIMOUTH COLLEGE CAUSES. 
 
 *' It is said that the Legislature of N. H. has often inter- 
 fered in regulating and altering, charters of this kind ; & 
 allusion is made to acts of the Legislature in altering & 
 dividing towns in the State. It should be remembered that 
 towns are corporations of a very different nature, & for 
 different purposes from those for which academies and col- 
 leges are incoi-porated ; & though they are corporations for 
 certain particular, & limited purposes ; yet they are rather 
 to be regarded as civil divisions of the State for the purpose 
 of government. The charters of the respective proprie- 
 taries erecting the territory into towns, declares that the 
 inhabitants possessing them, shall have and enjoy certain 
 privileges ; & in general terms, all the privileges which are 
 enjoyed by other towns in the province : leaving it for the 
 Legislature to make such divisions, and confer such powers 
 & privileges as shall best conduce to the purposes of civil 
 government. It is true, that they may hold property for 
 certain limited purposes ; yet this is not the great object of 
 their incorporation ; the great end of these territorial divi- 
 sions of the State into townships with limited corporate 
 powers, is to facilitate among the people the purposes of 
 self-government, & to aid in the government of the State ; & 
 their officers, though elected by the people of particular 
 districts, are yet civil officers, & properly officers of the 
 State ; to resist them, therefore, in the discharge of their 
 duties, is to resist the constituted authorities of the State ; 
 & it is an indictable offense. But it is not so with officers 
 of other corporations, they are left to their civil remedies 
 like other individuals — accordingly the Constitution 
 adopted by the people, in defining the powers of the Gen- 
 eral Court, has enabled that body ' to name and settle 
 annually or provide by fixed laws for the naming & settling 
 all civil officers within the State ; such officers excepted,, 
 the election and appointment of whom are, hereafter, in 
 this form of government otherwise provided for. (See 
 Constitution, p. 43.) 
 
 " "Wlien we turn to the power of appointment by the irov-
 
 marsh's argument. 163 
 
 ernor & council (p. 51) we find that ' all judicial officers, 
 the attorney-general, solicitors, all sheriffs, registers of 
 probate, & all officers of the navy, & all general & field 
 officers of the militia, shall be appointed by the governor & 
 council,' clearly comprehending all the officers of the gov- 
 ernment except town officers, who are, therefore, tlie civil 
 officers whose appointment is left to be provided for by the 
 Legislature. Hence it is evident that towns are not, strictly 
 speaking, corporations ; but mere civil divisions of the ter- 
 ritory of the State, for the purpose of governing them- 
 selves to a certain extent ; & aiding in the government, & 
 administration of the laws of the State — and again, though 
 in some respects, they are corporations ; yet they have not 
 strictly spealdng, perpetual succession ; or, in other words, 
 their perpetuity does not depend on any acts of their own, 
 as electing their successors, or officers, & the like ; they can 
 neither make common nor disfranchise any member of their 
 own body ; but any person, coming to reside within their 
 respective limits becomes, of course, a member of the cor- 
 poration to every intent for which they are such ; in other 
 words, certain privileges are, by the charters of the respec- 
 tive towns, & by the laws of the State, granted to the per- 
 sons who may come to reside on particular portions of the 
 territory of the State ; & these privileges happen in some 
 respects, but in ver.y few, to be such, as are incident to cor- 
 porations generally ; & yet, in every other respect, they are 
 mere civil divisions of the State ; &, perhaps, necessarily, 
 liable to division, or other variations by the laws of the 
 State, as will best answer the purposes for which they were 
 made ; & indeed are made subject to those things by their 
 own consent in the adoption of the Constitution — all these 
 privileges are given & regulated by statute, & are not to be 
 regarded as grants ; but as mere municipal regulations to be 
 varied at the discretion of the Legislature, not interfering 
 with any constitutional principles. 
 
 " The very terms of the charters of N. H. imply this, &
 
 164 DAKTMOUTH COLLEGE CAUSES. 
 
 no more ; ' and the same be, & is hereby incorporated in a 
 
 township by the name of & the inhabitants that do or 
 
 shall hereafter inhabit the said township, are hereby declared 
 to be enfranchised with & entitled to all & every the privi- 
 leges & immunities that other towns, within our province, 
 6y laWy exercise & enjoy.' The first essential ingredient in 
 a corporation is ' to have perpetual succession — this is the 
 very end of its incorporation ; for there cannot be a suc- 
 cession, forever, without an incorporation ; & therefore, all 
 aggregate corporations have a power, necessarily implied, to 
 elect members in the room of such as go off.' (1 Bla. 
 Comm. 502.) 
 
 " Towns having no such power, are not therefore, in any 
 strict sense corporations. (1 Roll. Abr. 514, 4th Com., F 
 10.) 
 
 " Again, if it were otherwise ; if they were in the strict- 
 est sense corporations ; yet, dividing the town into two, 
 might be considered only as creating a new corporation, out 
 of the members of an old one ; & perhaps, even then the 
 inhabitants would not be bound to accept the privilege 
 granted by the act making the division ; but might, if they 
 preferred it, remain as before — certainly they might do so 
 if they are to be regarded as corporations in these respects — 
 and it is believed that no Legislature has ever interfered 
 in any case of the kind, except at the request of those who 
 were supposed to be benefitted by the alteration ; or who 
 were to compose the new corporation. It may now be 
 asked, in what part of the Constitution is the General Court 
 empowered to interfere with corporations at that time exist- 
 ing ; or to provide for the appointment of their members or 
 officers. The subject is nowhere mentioned ; & it is certain 
 that the idea of confering such power never entered into the 
 minds of the framers of that instrument. Will any one 
 then have the boldness to say that they conferred powers, 
 which they did not intend to confer ; & that, in relation to 
 a subject which the}^ have not even mentioned ; & all this in
 
 marsh's argument. 165 
 
 an instrument in which they were professedly defining & 
 bestowing the powers of the respective branches of the gov- 
 ernment ; & using every exertion & expression to make & 
 keep each of them distinct. 
 
 "It is recollected that in one article of the Constitu- 
 tion it is expressly made ' the duty of the Legislature and 
 magistrates, in all future periods of the government, to 
 cherish the interests of literature & the sciences & all semi- 
 naries & public schools ; to encourage public and private 
 institutions, by reward and immunities, for the promotion 
 of agriculture, arts, sciences, commerce, trades, manufac- 
 tures, & natural history of the country,' &c. 
 
 "This seems mostly to relate to institutions then in 
 existence, & is so far from giving countenance to rude 
 attempts, hkethe present, to take away the rights, property, 
 & privileges of those institutions, & confer them on others 
 for personal •& party purposes, that it indeed holds a very 
 different lano;uao-e. It is observable that it confers the same 
 duties on magistrates as on legislators ; and it is merely to 
 foster & encourage, & not to interfere with their internal 
 concerns ; or to vary without their consent the structure of 
 their policy or government. 
 
 ' ' In all the authorities which are to be found on this sub- 
 ject, there is not a solitary instance to be found of any inter- 
 ference by the government, which can, at all compare "with 
 the present attempt, either in point of principle or extent, 
 where the government has without the consent of the cor- 
 poration endeavored to change the principles, or take away 
 the property or privileges of an institution of this kind — and 
 if there were precedents of this kind, by the omnipotent 
 Parliament of G. Britain, would it follow that the general 
 court of N. H. vnih. its derivative powers limited & restricted 
 by the terms of the Constitution, could do the same thing? 
 
 "It seems to be a point, perfectly agreed & settled in 
 all authorities, that the grantees in any charter of incorpo- 
 ration, cannot be compelled to become a cori3oration without
 
 166 DARTMOUTH COLLEGE CAUSES. 
 
 their own consent — 1 Salk. 168 is in point. S. Eyre, J., 
 held ' that the corporation would not be divested of former 
 rights ; but by surrender or forfeiture — G. E}Te & Holt, J., 
 that the king cannot resume an interest he has already 
 granted, unless the grantee concur — but in this case the 
 corporation had concurred by accepting a new charter,' in 
 other words, by acting under it — and accordingly in all the 
 pleadinjis in cases of quo warranto, where the members are 
 officers of corporations, undertake to justify acting as such 
 under a charter, the pleadings always allege an acceptance 
 thereof by the grantees — In Rex v. Richardson, 1 Bur. 
 517 ; King v. , 3 D Term Rep. 199. 
 
 ' ' If therefore individuals cannot be compelled to take on 
 themselves corporation powers, so neither can an existing 
 corporation be compelled to accept any additional grant of 
 powers or privileges ; nor can it be compelled for the same 
 reason to submit to any restriction which may be imposed. 
 The King & Queen v. Larwoad, 1 Salk. 168, is directly in 
 point. 
 
 " The foregoing remarks & references were made nearly 
 a year ago ; and are now deemed of no importance except 
 for the purpose of facilitating a recurrence to authorities — '■ 
 since that time the case of Fletcher v. Peck, in 6th of 
 Cranch ; & New Jersey v. Wilson, in 7th of Cranch, have 
 been consulted, and are deemed to be decisions in point. — 
 16th May, 1817. 
 
 ' ' Beside the authorities referred to — 
 
 " Colchester v. Seaber, 3d Bur. 1866 ; 
 
 *' Milton V. Spateman, 1 Wm. Saund. 342; 
 
 *' Lutterell's Case, 4 Co. 87, 2d vol. of octave edition, 86. 
 
 " 4 Com. Title Franchise (F. 30), e^ seg., page 267 ; 
 
 " Baggs' Case XI. Co. 99, vol. 6, same edition 93, may 
 be consulted with advantage."
 
 CHAPTER YI. — CoNTmuED. 
 
 Harvard University was chartered in 1636. The act of 
 1642 made the governor, deputy-governor, president of the 
 college, magistrates, teaching elders, etc., members of the 
 Board of Overseers. When the Constitution of the State 
 was formed, the University was put under the protection of 
 the State by virtue of certain provisions incorporated therein ; 
 and the grant of 1636 was "ratified and confirmed ' ' thereby, 
 with the proviso " that nothing herein shall be construed to 
 prevent the Legislature of this Commonwealth from making 
 such alterations in the government of the said University as 
 shall be conducive to its advantage, and the interest of the 
 republic of letters, in as full a manner as might have been 
 done by the Legislature of the late Province of the Massa- 
 chusetts Bay." 
 
 Judge Parsons became a Fellow of Harvard in 1806. 
 Soon after, he framed a law making the alterations in the 
 charter contemplated by the eminent jurist who penned the 
 proviso. The bill passed, March 6, 1810 ; was formally 
 accepted by the corporation, March 16, 1810, and by the 
 Board of Overseers , April 12, 1810. This act was repealed, 
 and the old board restored, by the act of February 29, 1812. 
 In 1814, this repealing act was repealed, and the act of 
 1810 revived, with the proviso that the Senate should be 
 added to the thirty elective members for which the act pro- 
 vided. 
 
 From the time he became a Fellow, till shortly before his 
 death. Parsons was the controlling spirit ; and during the 
 troubles which followed the passage of the act of 1810, 
 argued the cause of the University. 
 
 (167)
 
 168 DARTMOUTH COLLEGE CAUSES. 
 
 The counsel for the trustees in the Dartmouth Colleg-e 
 case were as familiar with the history of the troubles at 
 Harvard, and the argument of Parsons, as Story. 
 
 We copy from the identical minutes of Marsh, and the 
 dim, time-stained argument of Parsons, used by Judge 
 Smith and his eminent associates in preparing their argu- 
 ments in Judge Woodward's case. 
 
 The aroument of Parsons " as to visitors of Harvard Col- 
 lege," according to the filing of Judge Smith, is as fol- 
 lows : — 
 
 "1. The office of Visitor. 
 
 "2. His power & duties, 
 
 " 3, Who is the visitor of Harvard College? 
 
 *' 4. The extent of the power reserved to the Legislature 
 in the Constitution of the Commonwealth to alter the Gov't 
 of the College in as full a manner as it could have been 
 altered by the Legislature of the Province. 
 
 "1. The office of Visitor is at common law arising from 
 the lawful endowment of any charity either by the Sovereign 
 or any private person. 
 
 " If a private person endow a charity it is inherent to his 
 right of property to determine to what uses and in what 
 manner the charity may be applied, and for these purposes 
 provision may be made by his own statutes which are con- 
 sidered as the foundation of the endowment. He may ap- 
 point a Visitor to see that these statutes are duly executed. 
 If the founder do not appoint a Visitor he and his heirs are 
 of course Visitors. When the founder has made the endow- 
 ment of his charity and appointed a Visitor he after that 
 ceases to have any control over it his property having vested 
 in the grantees, subject to the visitation of the Visitor whom 
 he has desiirnated & who is substituted in the room of the 
 founder. He can therefore provide no new statutes alter- 
 ing the former uses of his donation, unless he has reserved 
 such power to himself in Ms original foundation, nor can he
 
 HARVARD parsons' 8 ARGUMENT. 1()9 
 
 i-evoke the visitatorial power which he has delegated ; as it 
 may affect the interest which is vested in the grantees. But 
 the founder not having appointed a Visitor may with the 
 assent of the grantees make what alterations may be thought 
 proper in the appropriation of his own donation, but not in 
 donations made to the same charity by other persons who 
 have expressly limited their uses and alterations may also 
 be made in the power of visitation by authority of the Leg- 
 islature and by consent of the grantees and the visitor who 
 so far stands in the place of the founder. 
 
 " 2. The power and duties of the visitor are incident to 
 him at common law, subject to the restrictions and qualifi- 
 cations pointed out by the statutes of the founder. It per- 
 tains to the office of visitor to see that the statutes of the 
 founder are executed and also to exercise such powers as 
 result from his will. If the founder instead of framing par- 
 ticular statutes for the management of his donation should 
 authorize the corporation in whom the same is vested to 
 make by laws for carrying into effect and regulating the 
 charity with the assent of the visitor then such by laws 
 have the force of the statutes made by the founder. 
 
 " 3. The visitor of H. College. No visitor of Harvard 
 CoUesre can be considered as existing until a donation was 
 made by some person or public body for the purpose of 
 foundins: the College and such donation cannot be made till 
 there are proper persons to take the same. The General 
 Court appropriated property for the purpose of founding 
 a College ; but did not grant the same to any persons 
 whatever the property remaining the property of the 
 colony and being managed by a Committee appointed by 
 the General Court. 
 
 " This Committee being found an inconvenient body the 
 Court give the trust to the Governor, Deputy Governor and 
 magistrates & the teaching elders of the six neighbouring 
 towns by the name of overseers, with power to manage the
 
 170 DARTMOUTH COLLEGE CAUSES. 
 
 funds subject to the will of the donors. In the act appoint- 
 ing the overseers it is ordained that the greater number 
 present at any meeting the number necessary to constitute 
 a meeting not being prescribed may make & establish any 
 orders, statutes & constitutions subject however to an appeal 
 to th^e whole body of overseers, who if they refuse to sus- 
 tain such appeal or act thereon shall stand accountable to 
 the next General Court. 
 
 ' ' Soon after the Creation of the overseers on application 
 of Mr. H. Dunster the President of the College the General 
 Court w^ere induced to take measures for founding a College 
 by constituting a Corporation in whom was invested the 
 property belonging to the College with power to manage 
 the same agreeably to the will of the donors and for 
 that purpose to make orders and by laws, but which 
 were of no force until allowed by the overseers. The last 
 provision being supposed to be impracticable in the Govern- 
 ment of the College the Corporation did not exercise their 
 powers until the granting an additional Charter in 1657 ( ?) 
 after this the College appears to be completely founded 
 having a corporation in whom the funds vested with a power 
 to make orders and by laws, so that the will of the donor 
 was observed and subject to the control of the overseers, as 
 a board of Visitors, M^ho might disallow the orders and by 
 laws made by the corporation. The General Court of the 
 Colony therefore were the founder of the College and 
 instead of forming particular statutes for the college which 
 they founded they constituted a Corporation with power to 
 make orders and by laws for the government of the College 
 compatible with the will of any donor & subject to the dis- 
 allowance of the overseers. And the doings of a meeting 
 of the overseers called by notice to those members living 
 in the six neighbouring towns are by the last Charter or 
 appendix of 1657 finally valid ^dthout any ultimate Control 
 being reserved to the General Court.
 
 ARGUMENT OF JUDGE PARSONS. 171 
 
 ♦ ' The Governors or Overseers appointed to any Chari- 
 table institution by the founder are in fact the visitors 
 thereof although they may not be designated by the name 
 of Visitors. The College as observed now appears to be 
 regularly founded having a Corporation to take and manage 
 the property, subject to visitors specially appointed by the 
 founder, who has parted not only with his property but with 
 all control over it. What control however the General 
 Court of the old Colony of Massachusetts Bay might in 
 fact claim or exercise either over the funds, which they 
 had given away or the visitatorial power which they had 
 parted with it is not now necessary to inquire. It is suf- 
 ficient to say that this foundation with this visitatorial power 
 existed so long as that General Court — that the Court 
 never did in fact repeal or annul this foundation or revoke 
 the power of visitation constituted as here mentioned. The 
 occasional interference of the Colonal General Court, after 
 the foundation was practised either with the assent of the 
 College or is to be considered as an assumption of power 
 not belonging to it for in fact that Court claimed to exer- 
 cise all the powers of Gov't Legislature Executive and 
 judicial. 
 
 ' ' Upon the repeal of the old Colony Charter & the grant- 
 ing of the Provincial Charter the Governor Deputy Gov. 
 & magistrates were succeeded by the Gov'r Lieut Govr 
 and Council as their successors in oflSce and the power of 
 Visitation remained in the same body until new successors 
 were appointed by the Constitution notwithstanding several 
 attempts to give the college a new foundation were made by 
 the interests of its friends with the concurrence of the Col- 
 lege. 
 
 "4. What power the Legislature of the Province had to 
 alter the Govt of the College requires now to be considered. 
 The Charter that gave existence to the Provincial Legisla- 
 ture by confirming the property of the College necessarily
 
 172 DARTMOUTH COLLEGE CAUSES. 
 
 confirmed the College and confirmed the property in the 
 College by such tenure & on such conditions as those by 
 which it was before holden, one of which was to be subject 
 to a controul in the disposition of that property by a body 
 of visitors and their successors appointed by the founder. 
 If the Legislature had any authority to alter the Gov't of 
 the College without the consent of the visitors and corpo- 
 ration it must be either by virtue of some visitatorial power 
 remaining in it or by some judicial act to be passed by it or 
 by its Legislative authority. As to its having visitatorial 
 power remaining, there is no color for it, as the founder 
 reserved none to himself — as to a Judicial act the Pro- 
 vincial Legislature were not competent to pass any no 
 judicial power having been granted in the Charter. If, 
 therefore, the Legislature could alter the Gov't of the Col- 
 lege it must be by virtue of its Legislative authority. The 
 Legislative power of every State must be such as it can law- 
 fully exercise according to its constitution not a mere arbi- 
 trary or despotic will which may prevail because power is 
 not synonymous with right. 
 
 ' ' It will not be pretended that the Legislature could divest 
 the Corporation of the property given it by the founder and 
 other donors, nor will it be contended that the Legislature 
 by any lawful act could alter the uses for which the prop- 
 erty was so given or by repealing the Charter of incorpora- 
 tion could defeat all those donations and render them void 
 or could alter the constitution of the Corporation by adding 
 to its members or changeing its powers ; for if this were 
 admitted they might virtually repeal the Charter of incor- 
 poration which vests the property and the powers therein 
 designated in the corporation and their successors the law of 
 succession being established in the Charter. 
 
 "It remains to consider whether without consent the 
 Legislature could rightfully change the visitors of the 
 College and appoint new visitors not appointed by the
 
 ARGUMENT OF JUDGE PARSONS. 173 
 
 founder. The founder had the same power at law to appoint 
 visitors of his Charity that he had to make the donation and 
 prescribe the use, and the visitors have in them a vested 
 right of visitation of which they cannot be deprived without 
 their consent any more than of any other vested right. The 
 Corporation also have an interest in the exercise of the right 
 because by the exercise of it can the powers of the corpora- 
 tion alone be controlled. And it may be supposed that a 
 corporation might be willing to take the management of a 
 Charity subject to a particular visitation which they might 
 refuse under another visitation as well as that donors might 
 be induced from confidence in the existing visitatorial power 
 to make donations which otherwise they might decline. 
 The visitatorial power is therefore so connected with the 
 Charity of its management that it seems impossible that the 
 Legislature can have a power over the former without having 
 it over the latter which is not contended. But if the visitors 
 and Corporation are disposed to consent to a substitution of 
 other persons as visitors yet it cannot be done unless 
 authorized by the Legislature but being so authorized it may 
 lawfully be done because it is done by the consent of all the 
 parties interested. If however the doctrine should be 
 admitted that the Provincial Legislature had the singular 
 power of altering the Government of the College without 
 consent yet if instead of exercising that power they had in 
 fact introduced into the visitation new visitors with the con- 
 sent of the former visitors and the Corporation it is extremely 
 difficult to conceive by what legitimate authority the Legis- 
 lature could afterwards deprive those ncAV Visitors of the 
 rights of Visitation thus lawfully vested in them. To admit 
 this power of deprivation thus exercised would be giving to 
 the Provincial Legislature greater power than they would 
 have possessed if they had been founders of College & at the 
 foundation had specially appointed as Visitors the persons 
 thus deprived. Admitting therefore the power reserved to the 
 Legislature of making such alteration in the Government of
 
 174 DARTMOUTH GOLLEGK CAUSES. 
 
 the College as could have been made by the Legislature of 
 the late Province of Massachusetts Bay yet under this admis- 
 sion no alteration could be made in the Government but 
 with consent of the overseers & Corporation and but for 
 the reservation in the proviso no alteration could ever be 
 made even with consent as it would have been deemed 
 repugnant to the Constitution which established absolutely 
 the Government of the College." 
 
 Two things are especially noticeable in this argument of 
 Parsons : From his intimate acquaintance with Dane, the 
 history of the times, and the great men who participated in 
 the Federal Convention, no man in Massachusetts was more 
 capable of comprehending the meaning of the obligation 
 clause than he ; yet he passed it by in this argument as if the 
 thought never occurred to him that it had any application. 
 The other is, that, independent of the proviso, the charter 
 could not be altered by the Legislature, even with the con- 
 sent of the overseers and corporation. 
 
 The clergymen of the " standing order," with a portion 
 of the old trustees and the faculty, swarmed from their Gen- 
 eral Association into the Exeter court-room. The argument 
 lasted two days : Mason speaking two and Smith four hours 
 for the trustees ; Sullivan and Bartlett occupied three hours 
 the next day, in reply ; Webster occupied less than two 
 hours in closing the case for the trustees. None of these 
 were taken down in short-hand, but, as afterwards written 
 out from the copious minutes and notes of counsel, or other- 
 wise, and in some instances revised, were, except Webster's, 
 reported by Judge Farrar. They occupy about one hun- 
 dred and eighty pages in Farrar' s report, — of which forty- 
 three pages were assigned to Mason, who was always 
 comparatively brief; fifty-six pages to Smith, thirty-four 
 pages to Sullivan, and forty-six pages to Bartlett. 
 
 Probably in consequence of this revision, arguments on 
 one side were sometimes omitted, while the replies were 
 given. Judge Smith, in a memorandum made February
 
 ARGUMENT AT EXETER FARRAR'S REPORT. 175 
 
 28, 1824, says that he destroyed ou that day, " the minutes 
 prepared for & used in argument at Haverhill, May, 1817, 
 and at Exeter, September, 1817, in addition to those in this 
 file." 
 
 " In preparing argument for T. Farrar's Vol., J. S. [Judge 
 Smith] freely used a?^ his minutes and recollection — sub- 
 stance same, tho' method often changed — some things 
 omitted, &c." 
 
 In his letter to Farrar, of May 18, 1819, Webster says : 
 "As to Ichabod's [Bartlett's] argument, I am decidedly 
 of opinion that I would not i^ublish any abuse of the 
 Trustees, or of any of the counsel. If he has not decency 
 enough to leave such slang out, I would not publish his 
 argument, — and if necessary, I would state the reason in 
 a note. As to mere nonsense & stuff, I w'd publish it; 
 but nothing in any degree personal or injurious to counsel 
 or parties. You must show the creature to Mr. Mason — 
 & you & he must persuade Bartlett to leave out what is 
 objectionable. He ought to see the propriety of following 
 Mr. Sullivan's example in that respect. 
 
 " It would of course be very desirable to have his argu- 
 ment printed, & I think a little soft persuasion will bring 
 him to have it put right. Ch. Jus. Eichardson, I should 
 think, would not wish that slang should appear as the 
 argument in his court. 
 
 "50 to 60 pages ; Good Heavens ! And all slang. Do 
 ojet it abridged. D. W." 
 
 Those who have read the letters of Thompson to Adams, 
 and Dunham and Wheelock to Webster, and understood the 
 peculiar relations which subsisted between Wheelock and 
 Webster in 1815, can hardly fail to perceive to what re- 
 marks "personal or injurious to counsel" Mr. Webster 
 referred. 
 
 Farrar's report probably shows, fairly enough, the gen- 
 eral course of the arguments. We have, besides, the short 
 notes of all the arguments, as taken down by Mr. Webster
 
 176 DARTMOUTH COLLEGE CAUSES. 
 
 with his own hand in the Exeter court-room, which lie 
 before us as we write. No summary would do them justice, 
 but an outline of them may be useful. 
 
 Mason's points, as stated by himself, were : " That these 
 acts are not obligatory ; 1 . Because they are not within the 
 general scope of legislative power ; 2 . Because they violate 
 certain provisions of the Constitution of this State restrain- 
 ing the legislative power ; 3. Because they violate the Con- 
 stitution of the United States." In Farrar's report, Mason 
 devotes twenty-three pages to his first point, eight to the 
 second, and six to the third. 
 
 1 . He urged that ' ' the only division of corporations ma- 
 terial to the present enquiry, is that of civil and eleemosy- 
 nary ;" that the trustees constituted an eleemosynary cor- 
 poration ; that towns were civil ' ' cori3orations of a peculiar 
 kind ;" that the Legislature cannot "rightfully take from any 
 such corporation its property, and transfer it to another ; ' ' 
 that " something similar to these are incorporated cities." 
 " But where there is a special grant of peculiar privileges, 
 the legislative power to new model or control them, if 
 admitted at all, must be with great limitation. The Legis- 
 lature cannot abolish such corporations, or do anything 
 equivalent to it. As far as the privileges are peculiar, and 
 such as cannot be affected by a general law, applicable to 
 all, it is not easy to see on what principles they can be 
 essentially changed or altered by a special act of the Legis- 
 lature ; " that the College " is clearly an eleemosynary cor- 
 poration, and of consequence, a private corporation." 
 
 He conceded "that the British Parliament can, as it is 
 held, abolish corporations. So it can pass acts of attainder, 
 and of pains and penalties. But neither can be done by vir- 
 tue of the ordinary and legitimate legislative power which 
 belongs to our Legislature. According to the theory of the 
 British government, the Parliament is omnipotent. ' A cor- 
 poration may be dissolved by act of Parliament, which is 
 boundless in its opejrations.' "
 
 mason's argument at EXETER. 177 
 
 " Will it now be asserted that the British Parliament or 
 king, or both united, were competent to abolish or new 
 model the colonial charters ? If it could be done b}^ legisla- 
 tive power alone, they might, for they possessed the whole 
 legislative power over that subject-matter." " The Parlia- 
 ment of Great Britain had no rightful power whatever over 
 this corporation. The Legislature of this State succeeded 
 to all the power which the king, who granted the charter, 
 had, and to no more." 
 
 "In England the creating of corporations appertains to 
 the king, and he has all the legitimate power that exists 
 for dissolving them, except what is vested in the judicial 
 courts." 
 
 " But the king cannot abolish a corporation, or give it a 
 new organization, or alter any of its powers or privileges, 
 without its consent." 
 
 "As successors to the king, then, the Legislature have no 
 power to pass the acts in question, and it may be safely 
 asserted that before the change in the form of government, 
 the plaintiffs could not have been rightfully deprived of 
 their property or privileges, without a trial in due course 
 of law." 
 
 " It is of no consequence, as it respects the right, whether 
 the privileges granted to the plaintiffs by their charter are 
 valuable, in a pecuniary point of view, or otherwise." He 
 then relies upon the opinion in Calder v. Bull, 3 Dall. 383, 
 that ' ' the nature and ends of legislative power will limit the 
 exercise of it." 
 
 2. That these acts were prohibited by Art. XV., the per 
 legem terrae clause. Art. XXIII. , which prohibits the passage 
 of "retrospective laws," and Art. XXXVII. of the Bill of 
 Rights of New Hampshire, which declares that the three 
 essential powers of government ought to be kept separate. 
 
 3. That the grant was " a contract " under the clause in 
 the Federal Constitution, and not a law. That " there can 
 be no doubt that there were competent parties to the con-
 
 178 DARTMOUTH COLLEGE CAUSES. 
 
 tract, — the Idiig, of one side, and the trustees named in the 
 charter, of the other." 
 
 Judge Smith urged that the change of name was a viola- 
 tion of " chartered rights." That " here, too, the change 
 of name seems to indicate a change in the nature of the 
 body ; for, upon the principles of the common law, an uni- 
 versity on the model of those at Oxford and Cambridge is 
 a civil, while a college is an eleemosynary corporation." 
 He enforced the same views as Mason, and commented at 
 length upon Phillips v. Bury, and other cases relied upon 
 in the opinion of Judge Story. He said, " It is the endow- 
 ment which confers the right of visitation ; ' ' and adds, ' ' Let 
 us now examine the constitution of Dartmouth Colleo-e. Its 
 original funds arose altoo-ether from the donations of indi- 
 viduals, principally obtained through the agency of Dr. 
 Wheelock. In no sense and in no way can it be said that 
 they originated with the king or the public. Not a cent 
 of money or an acre of land was given by the Province or 
 any public body till after the college went into operation. 
 * * * Though the State have given lands, they were 
 not the real founders. They were not thejirst benefactors, 
 who, and who onl}'", are considered as founders. * * » 
 
 " Do the defendants' counsel contend that if a town should 
 acquire by gift, or otherwise, a fund for the support of a 
 school for the inhabitants of such town, that the Legisla- 
 ture could constitutionally annex another town, giving to 
 all the inhabitants of the new corporation equal right to 
 participate in this fund? * * * But still Parliament 
 may pass many acts which our Legislature are prohibited 
 from passing. * * * 
 
 " It is in the exercise of the same authority that Parlia- 
 ment can dissolve all corporations. * * * 
 
 "Here seems to be everything requisite to form a compact. 
 The king is one party ; the donors in the first instance, and 
 then the trustees as their acknowledged substitutes or repre- 
 sentatives, are the other party. * * * It is too late for
 
 JUDGE smith's argument AT EXETER. 179 
 
 the king to quarrel with the terms ; he never did. * * * 
 The truth is, the trustees, as a body politic, are the legal 
 and equitable owners of the property and of the franchises 
 conferred by the charter." 
 
 Sullivan, for the State, urged that this was " a public 
 corporation ; ' ' that the test as to whether it was public or 
 private was not whether it was endowed by the bounty of 
 the government, or that of an individual, but, as was said 
 by Lord Hardwicke, " the extensiveness of the objects to be 
 benefitted;" that the charter answered the "questions," 
 ' ' For whose benefit was this corporation erected ? — for the 
 benefit of the persons composing it, or for that of the pub- 
 lic ? " by setting forth that it was '■'•for the benefit of said 
 province ; ' ' that ' ' it appears from the charter that the cor- 
 poration of Dartmouth College was established for the ex- 
 press, the avowed purpose of promoting the welfare of a 
 whole province. It was an instrument formed to attain 
 objects in which no individual had a particular interest, but 
 in which the community had a deep one. It was vested with 
 power to hold property in trust for the public, but it could 
 hold none for the use of the corporators. It was clothed 
 with various powers, capacities and franchises, all of which 
 were to be exercised for the benefit of the public, but not 
 one of them for the advantage of its own members, or of 
 any individuals whatever. In short, it was created, it 
 existed, only for public purposes. * * * jf ^j^jg qqi-.. 
 poration was a private one, I shall contend that the Legis- 
 lature had a right to alter its charter, so far as the public 
 good required. * * * 
 
 " Suppose the lands of a private corporation are wanted 
 for a fortification or an arsenal ; may they not be taken ? 
 Suppose they are wanted for a highway, or for any impor- 
 tant public purpose ; may they not be taken ? * * » 
 Does the law guard the property of corporations with more 
 vigilance than that of individuals? Are the rights of the 
 former more sacred than those of the latter ? * * *
 
 180 DARTMOUTH COLLEGE CAUSES. 
 
 " It is alleged that these acts violate the Constitution of the 
 United States. When a charter of incorporation is granted, 
 there is always, it is said, an implied contract, on the part 
 of the government, that the charter shall not be altered 
 without the consent of the corporation. * * * 
 
 " If a charter of incorporation be a contract, it certainly 
 is not such a contract as comes within the spirit and mean- 
 ing of that article in the constitution. * * * The Supreme 
 Court in Massachusetts have said this was the design of the 
 provision : ' The article respecting the obligation of con- 
 tracts, as we all know, was provided against paper money 
 installment laws,' etc. * * * It is remarked by Judge 
 Johnson, in the case of Fletcher v. Peck, that the State 
 legislatures pass laws impairing the obligation of contracts, 
 yet that these laws appear to be within the most correct 
 limits of legislative powers, and certainly could not have 
 been intended to be affected by this constitutional pro- 
 vision. * * * 
 
 "It has been asserted that Dr. Wheelock was the founder, 
 but the assertion is supported by no evidence. * * * 
 The charter, probably in consequence of these exertions, 
 calls him the founder. But this does not make him so. 
 The first gift of the revenues is the foundation, and he 
 who gives them is in law the founder. Many individuals 
 made donations ; but Avho made the first ? It does not 
 appear. I am instructed to say that Dr. Wheelock made 
 very liberal donations to Moor's Charity-School, an institu- 
 tion in the neighliorhood of the college, though entirely 
 distinct from it, but that he made none to the college itself. 
 * * * In no part of the charter is it mentioned that he 
 made any donation to the college. If he did, there is no 
 evidence of the fact. It does not appear, then, that he was 
 the founder, or that he had power to transfer the right of 
 visitation to the trustees. * * * 
 
 *' If Dr. Wheelock was the founder and visitor of the 
 college, he did not transfer to the trustees the right of
 
 Sullivan's argument at exetek. 181 
 
 visitation. There are no words in the charter making them 
 visitors. * * * 
 
 ' ' The trustees allege that the General Court attempted 
 to compel them to act under an amended charter, and that 
 they had no power to do it. Many cases have been cited 
 on this point, but they only show that the king cannot 
 compel corporations to accept or act under amended 
 charters, not that Parliament cannot compel them. The 
 authority of Parliament, as every one knows, is much more 
 extensive than that of the king. The king cannot grant to 
 a cori^oration exclusive privileges ; Parliament may. The 
 king cannot dissolve a corporation ; Parliament possesses 
 the power. Corporations in this State have frequently been 
 compelled to act under amended charters. * * * 
 
 ' ' Suppose the trustees had been guilty of great abuses of 
 their trust, an information had been filed, and their charter 
 had been declared forfeited. What would have been the 
 consequences? Would the trustees have lost any thing? 
 Not a cent. The public, and not the trustees, would have 
 been the sufferers. * * * 
 
 "In the first place, we are told that the corporation is 
 placed beyond the control of the Legislature. They have no 
 authority to amend its charter ; to touch its property ; to 
 take from it a single right or pri\dlege ; or to limit the 
 exercise of any one of its powers. In the next place, we 
 are told that the trustees are visitors of the colleo;e and of 
 the application of its funds. This places them beyond the 
 control of every court of law, let them do what they will with 
 the property given to the institution. ' The sentence of a 
 visitor, on subjects within his jurisdiction, is final and con- 
 clusive, and the king's courts cannot in any form of proceed- 
 ing review the sentence.' (2 Kyd on Corp.) * * * 
 
 "It is within the jurisdiction of a visitor, it is his duty, 
 to see that the funds given to the institution of which he is 
 a visitor are properly applied ; and when he decides, his 
 sentence is conclusive on all courts. Suppose the trustees
 
 182 DARTMOUTH COLLEGE CAUSES. 
 
 should appropriate the funds of the college to their own 
 use. If they are visitors as to the application of the funds, 
 as is contended, no court of law can make them accountable. 
 A visitor is himself subject to no visitation, to no control. 
 Where is the man, though possessed of the most charitable 
 and benevolent feelings, that would give to a corporation 
 raised so far above all responsibility? Such a corporation 
 is a monster, that would devour all charities ! The very 
 sight of such a monster, placed beyond all legislative, all 
 judicial control, like the terrific head of Medusa, would 
 convert even Charit}^ herself into stone ? * * * That a 
 corporation, created for the sole purpose of promoting the 
 public interest, may be altered in such a manner as the 
 public interest requires, is a principle as obvious to common 
 sense as any that can be imagined," 
 
 Bartlett states the position of Mason and Smith to be, — 
 
 "1. That the legislative acts in question are contrary to 
 the principles of natural justice, 
 
 "2. That corporations of this nature are independent of 
 legislative control. 
 
 "3. That the provisions of these acts violate the consti- 
 tutions of New Hampshire and the United States." 
 
 He then argues that the first point is too indefinite ; that 
 no court is Avarranted in setting aside any law because the 
 judges may think it is contrary to natural justice ; that the 
 provision abolishing the oath of allegiance to the king, or 
 the section guaranteeing freedom of religious opinion, is not 
 in violation of natural justice ; that all the authorities show 
 that changing the name changes none of the rights, duties, 
 powers, or privileges of the corporation; that the State had 
 not confiscated corporate property, but renovated the cor- 
 poration, and added new members, according to the decision 
 in King v. Pasmore, 3 Term Rep. 244 ; that Ashhurst, J., was 
 right when he said in that case, " As to there being here a 
 dissent of a majority of the old members, I lay no stress 
 upon it." * * *
 
 BAKTLKTT's AEGUMENT at EXETER. 183 
 
 " Here the members of the old corporation have no injury 
 or injustice to complain of, for they are all included in the 
 new charter of incorporation, and if any of them do not 
 become members of the new corporation, but refuse to 
 accept, it is their own fault ; " that Philips v. Bury, 4 Mod. 
 Kep. 117, showed that "the universities in England, and 
 institutions of a similar nature in this country," were pub- 
 lic corporations ; that the English doctrine that corpo- 
 rations could be dissolved by act of Parliament ' ' had long 
 been exercised, in practice," in Great Britain and the 
 colonies ; — citing the Land Bank and South Sea schemes ; 
 the statute declaring all corporations and licenses granted 
 by Henry VI. void ; the abolition of monopolies by Parlia- 
 ment ; the frequent changes in the admission-fee of trading 
 companies, in the number of their members, and their quali- 
 fications ; the radical changes in the act of 5 Geo. IH. in 
 the African corporation, created by the act of 23 Geo. H. ; 
 the case of Manchester College, in which Parliament, by act 
 of 2 Geo. II., annulled the powers of a special visitor and 
 vested them in the crown ; the abrogation of the oaths of 
 allegiance and supremacy by the act of 1 Wni. & Mary, 
 which provided for vacating the office of head patron in St. 
 John's College if the incumbents refused to take the new 
 oath. 
 
 He also referred to the act passed by Connecticut in 1723, 
 enlarging the number of trustees of Yale College, fixing a 
 quorum, creating new officers, and establishing other regu- 
 lations without petition or consent of the corporation ; to 
 the act of Massachusetts in 1673, adding to the members of 
 the corporation of Harvard College, "against the will of 
 the corporation ;" and to the repeal of the provision in the 
 charter of Trinity Church, in regard to " induction," by the 
 State of New York, by the act of 1784. 
 
 He concluded this branch of his argument with ofi'ering 
 ** to abandon the defence when one unequivocal authority
 
 184 DARTMOUTH COLLEGE CAUSES. 
 
 shall be produced by the plaintiifs to show that the exercise 
 of such power was ever judged illegal. * * * 
 
 "But the plaintills have insisted that ' it is a private 
 eleemosynary corporation ; ' and that statement is attempted 
 to be supported, in the first place, by confounding this insti- 
 tution with 'Moor's Indian Charity-Sehool,' which Dr. E. 
 Wlieelock claimed as his, and over which no other jurisdic- 
 tion has been exercised but at his request. Now, no fact 
 on record is more clearly stated than that this institution 
 and Moor's Indian Charity-School were entirely distinct and 
 independent of each other in their origin and establishment ; 
 were ever governed separately, without the least connection, 
 until the school solicited the interference of the legislature 
 and college. Their funds and property are now distinct and 
 separate. For proof of this, we need no more time than is 
 necessary to read the record of a vote passed by the plain- 
 tiffs, May 7, 1789, as follows : ' Representations having 
 been made to this board, that apprehensions have arisen in 
 the minds of some persons, that moneys collected in Great 
 Britain by the Rev. Messrs. "Whitaker and Occom, for the 
 use of Moor's Charity-School, under the direction of Rev. 
 Dr. Wheelock, have been applied by this board to the 
 use and benefit of Dartmouth College ; — Resolved, that this 
 board have never had any control or direction of said 
 moneys, nor have they to their knowledge, at any time 
 received or applied any sum or sums thereof to the use and 
 benefit of said college,' etc. A letter of instruction to Dr. 
 Wheelock from the honorable board of trust of that school 
 in England, April 25, 1771, states that ' the corporation of 
 Dartmouth College in its nature and designs differs from 
 the establishment of their school,' and forbids Dr. Wheelock 
 from subjecting the school or its funds to the disposition of 
 that institution." 
 
 He then replied at length to the argument that the acts in 
 question were prohibited by the State Constitution, urging
 
 ARGUMENT OF BARTLETT AND WEBSTER. 185 
 
 that the provisions referred to were but a reenactment of the 
 great charter, which had not been invaded in the cases cited. 
 
 " But at last it is insisted that these are ' laws hnpairing 
 the obligation of contracts.^ Finding that the stnnv^s they 
 have seized upon in the struggle cannot support their sinking 
 claim, witli the eagerness of desperation, they grasp at this 
 shadow of a pretence. * * * If any interpretation of that 
 clause can be made applicable to the present case, all the 
 benefits surely should be awarded to the plaintiffs' counsel 
 as the first discoverers. Most unquestionably by the sur- 
 vivors of the Convention who framed that instrument, such 
 an idea would now be deemed original. * * * 
 
 "In a case much stronger than the present, it was consid- 
 ered by the counsel as well as the court (Brown v. Bank, 8 
 Mass. 448) that 'the notion of a contract between the gov- 
 ernment and corporation was too fanciful to need any obser- 
 vation. * * * Tliat scholastic subtlety and ingenuity 
 by which the plaintiffs would raise a contract in this trans- 
 action, would prove quite too much for their purpose, for in 
 some sense even government itself is a contract, and by the 
 same reasoning every act and every law must be considered in 
 the nature of a contract^ until the Legislature would find 
 themselves in such a labyrinth of contracts, with the United 
 States Constitution over their heads, that not a subject would 
 be left Avithin their jurisdiction. * * * 
 
 " The plaintiffs, however, say, an express contract exists 
 here, that they, and they alone, shall be trustees of this 
 institution. * * * gy a reference to tlie charter it will 
 appear that the corporation was created independent of the 
 trustees ; and that tliey were afterwards appointed in a dif- 
 ferent clause of the charter. * * * 
 
 " The provision in the charter with regard to the number, 
 was intended as a regulation to limit the board in their 
 appointments, and not with a view to control the Legisla- 
 ture. * * * Who are the parties to all these con- 
 tracts ? Can there be any other, either express or implied.
 
 186 DARTMOUTH COLLEGE CAUSES. 
 
 than the founder, the power creating the corporation and 
 those for luhose benefit it is established ? As a pubh'c insti- 
 tution, we believe the croivn has been shown to be the 
 founder. Or even as an eleemosynary corporation, that the 
 rights of foundation rest in the crown, from the public 
 endowments. The crown also was the power that created it. 
 The State, since the Revolution, succeeds to the rights of the " 
 crown. (Terrett v. Taylor, 9 Cranch, 50.) " 
 
 The counsel all agreed that if proceedings could be suc- 
 cessfully instituted in the name of the State for a forfeiture, 
 the College funds would go back to the donors or their 
 heirs ; and that no court of chancery existed to correct 
 abuses, unless the Legislature had such powers, which the 
 counsel for the plaintiffs denied. 
 
 More than three hundred references were made by the 
 various counsel, to decided cases, statutes, and standard 
 works of authority. 
 
 Webster was not always equally great and impressive. 
 Sometimes he was comparatively dry, heavy, and uninterest- 
 ing. A great subject and a great occasion would always 
 bring out his cold, unimpassioned logic. But when hard 
 pressed, or weighted down with responsibilities, as he was in 
 this case, he apparently became charged with volcanic fire. 
 His argument at Exeter was never reported ; but tradition, 
 public prints, and old letters point to but one conclusion. If 
 not the greatest, it was one of the most brilliant efibrts of 
 his life, and produced a most extraordinary effect. He 
 closed with the "Caesar in the senate-house" peroration, 
 which was so much admired by Professor Goodrich and 
 others when he recited it at Washington ( 1 Life of Web- 
 ster, 170), and the court adjourned in tears.
 
 CHAPTER yi. — CoNTmuED. 
 
 The counsel for the State were overmatched ; but they 
 were able men, and, in comparison with what in other hands 
 afterwards befell their cause in Washington, handled it with 
 consummate skill. The counsel for the trustees differed in 
 their views, as will hereafter appear, upon a single point, 
 which was understood by the opposing counsel and the 
 court to have been waived or abandoned. Upon the other 
 points they were a unit in argument, whatever their private 
 convictions might have been. Their strategic plan was to 
 carry the State court with them, if possible ; and failing in 
 that, to break the force of an adverse decision by dividing 
 the court. To accomplish this they put forth all their 
 powers, but failed. 
 
 The judges continued the cause, for advisement, till the 
 November term , at Plymouth ,1817. On November 6,1817, 
 the chief justice read the unanimous opinion of the court, 
 adverse to the trustees, which occupies nearly thirty pages 
 in Farrar's report. Its pith is stated in the head-notes in 
 1 N. H. Ill, which were undoubtedly prepared by the chief 
 justice : — 
 
 "1. The corporation of Dartmouth College is a public corpora- 
 tion. 
 
 "2. An act of the Legislature, adding new members to such a 
 corporation, without the consent of the old corporation, is not re- 
 pugnant to the Constitution of the State. 
 
 " 3. The charter of the king, creating the corporation of Dart- 
 mouth College, is not a contract within the meaning of that clause 
 in the Constitution of the United States which prohibits States 
 from passing laws impairing the obligation of contracts." 
 
 (187)
 
 188 DARTMOUTH COLLEGE CAUSES. 
 
 The court say: "This cause has been argued on both 
 sides with uncommon learning and ability, and we have 
 witnessed with pleasure and with pride a display of talents 
 and eloquence, upon this occasion, in the highest degree hon- 
 orable to the profession of the law in this State. If the 
 counsel of the plaintiffs have failed to convince us that the 
 action can be maintained, it has not been owing to any want 
 of diligence in research, or ingenuity in reasoning, but to a 
 want of solid and substantial grounds on which to rest their 
 arouments." 
 
 The court define at length the characteristics of private 
 and public corporations. They do not assume, as has so 
 often erroneously been said, but decide, that this was a pub- 
 lic corporation, and give the reasons therefor. They say : 
 ' Public corporations are those which are created for public 
 purposes, and whose property is devoted to the objects 
 for w^hich they are created. The corporators have no 
 private beneficial interest, either in their franchises or 
 their proj)erty. The only private right which individuals 
 can have in them, is the right of being and of acting as 
 members. * * * 
 
 " A corporation, all of w^hose franchises are exercised for 
 public purposes, is a public corporation. * * * Be- 
 cause, in both cases, all the property and franchises of the 
 corporations would in fact be public property. A gift to a 
 corporation created for public purposes is in reality a gift 
 to the public. * * * Whether an incorporated college, 
 founded and endowed by an individual who had reserved 
 to himself a control over its affairs as a private visitor, 
 must be viewed as a public or as a private corporation, it 
 is not necessary now to decide, because it does not appear 
 that Dartmouth College was subject to any private visita- 
 tion whatever." 
 
 After quoting at length from the charter, the court say : 
 " Such are the objects and such the nature of this corpora-
 
 DECISION OF THE STATE COURT. 189 
 
 tion, appearing upon the face of the charter. It was created 
 for the purpose of holding and managing property for the 
 use of the college, and the college was founded for the j^ur- 
 pose of ' spreading the knowledge of the Great Redeemer' 
 among the savages, and of furnishing ' the best means of 
 education ' to the province of N'ew Hampshire. These great 
 purposes are surely, if any thing can be, matters of public 
 concern. Who has any private interest either in the objects 
 or i)roperty of this institution ! The trustees themselves 
 have no greater interest in the spreading of Christian knowl- 
 edge among the Indians, and in providing the best means of 
 education, than any other individuals in the community. 
 Nor have they any private interest in the property of this 
 institution ; nothing that can be sold or transferred, that can 
 descend to their heirs, or can be assets in the hands of their 
 administrators. If all the property of the institution were 
 destroyed, the loss would be exclusively public, and no pri- 
 vate loss to them. So entirely free are they from any private 
 interest, in this respect, that they are competent witnesses in 
 causes where the corporation is a party, and the property of 
 the corporation in contest. * * * They [the trustees] 
 have no private riglit in the institution, except the right of 
 office, — right of being trustees and of acting as such. It 
 therefore seems to us that if such a corporation is not to be 
 considered as a public corporation, it would be difficult to 
 find one that could be so considered. * * * ^\ private 
 rights in this institution must belonfi: either to those who 
 founded or whose bounty has endowed it ; to the officers 
 and students of the college, or to the trustees. As to those 
 who founded or who have endowed it, no person of this 
 description who claims any private right has been pointed 
 out or is known to us. It is not understood that any per- 
 son claims to be visitor to this college. An absolute dona- 
 tion of land or money to an institution of this kind creates 
 no private right in it. Besides, if the private rights of
 
 190 DARTMOUTH COLLEGE CAUSES. 
 
 founders or donors have been infringed by these acts, it is 
 their business to vindicate their own rights. It is no concern 
 of these plaintiffs. When founders and donors complain, 
 it will be our duty to hear and decide ; but we cannot adju- 
 dicate upon their rights till they come judicially before 
 us. * * * 
 
 " But it is said that the charter of 1769 is a contract, the 
 validity of which is impaired by these acts in violation of 
 that clause in the tenth section of the first article of the 
 Constitution of the United States, which declares that ' no 
 State shall pass any law impairing the obligation of con- 
 tracts.' It has probably never yet been decided that a 
 charter of this kind is a contract within the meaning of the 
 Constitution of the United States. None of the cases cited 
 were like the present. * * * This clause in the 
 Constitution of the United States was obviously intended to 
 protect private rights of property, and embraces all con- 
 tracts relating to private property, whether executed or 
 executory, and whether between individuals, between States, 
 or between States and individuals. The word * contracts ' 
 must, however, be taken in its common and ordinary accep- 
 tation as an actual agreement between parties, by which 
 something is granted or stipulated immediately for the 
 benefit of the actual parties. But this clause was not 
 intended to limit the power of the States in relation to their 
 own public officers and servants, or to their own civil insti- 
 tutions, and must not be construed to embrace contracts, 
 which are, in their nature, mere matters of civil institution ; 
 nor grants of power and authorit}^ by a State to individuals, 
 to be exercised for purposes merely public. Thus, marriage 
 is a contract ; but being a mere matter of civil institution, 
 is not within the meaning of this clause. A law, therefore, 
 authorizing divorces, though it impairs the validity of mar- 
 riage contracts, is not a violation of the Constitution of the 
 United States. * * *
 
 DECISIOX OF THE STATE COURT. 191 
 
 '* The distinction we have here endeavored to lay down, 
 between the contracts which are and which are not intended 
 by that instrument, seems to us to be clear and obvious. 
 If the charter of a public institution, like that of Dartmouth 
 College, is to be construed as a contract within the intent 
 of the Constitution of the United States, it will, in our 
 opinion, be difficult to say what powers, in relation to their 
 public institutions, if any, are left to the States. It is a 
 construction, in our vicAv, repugnant to the very principles 
 of all government, because it places all the public institu- 
 tions of all the States beyond legislative control. For it is 
 clear that Congress possesses no powers on the subject. 
 We are, therefore, clearly of opinion that the charter of 
 Dartmouth College is not a contract within the meaning of 
 this clause in the Constitution of the United States." 
 . "But, admitting that charter to have been such a con- 
 tract, what was the contract? Can it be construed to be a 
 contract on the part of the king with the corporators whom 
 he appointed, and their successors, that they should forever 
 have the control of the affairs of this institution, and be for- 
 ever free from all legislative interference, and that their num- 
 ber should not be augmented or diminished, however strongly 
 the public interest might require it? Such a contract in 
 relation to a public institution would, as we conceive, be 
 absurd, and repugnant to the principles of all government. 
 The king had no power to make such a contract, and thus 
 bind the sovereign authority on a subject of mere public 
 concern. Nor does our Legislature possess the power to 
 make such a contract. * * * 
 
 " A distinction is to be taken between particular grants, 
 by the Legislature, of property or privileges to individ- 
 uals for their own benefit, and grants of power and author- 
 ity to be exercised for public purposes. The former is, in 
 its nature, special legislation in relation to private rights ; 
 the latter is general legislation in relation to the common
 
 192 DARTMOUTH COLLEGK CAUSES. 
 
 interests of all. Chief Justice Marshall, in the case of 
 Fletcher v. Peck, 6 Cranch, 135, adverts to this distinction 
 where he says : * The correctness of this principle, that one 
 legislature cannot abridge the powers of a succeeding legis- 
 lature so far as respects general legislation, can never be 
 controverted. But if an act be done under a law, a suc- 
 ceeding legislature cannot undo it. The past cannot be 
 recalled by the most absolute power. Conveyances have 
 been made ; those conveyances have vested legal estates ; 
 and if those estates may be seized by the sovereign author- 
 ity, still, that they originally vested is a fact, and cannot 
 cease to be a fact.' We are, therefore, of opinion that if 
 this charter can be construed to be a contract Avithin the 
 meaning of the Constitution of the United States, yet 
 still it contains no contract, binding on the Legislature, 
 that the number of trustees shall not be augmented, and 
 that the validity of the contract is not impaired by these 
 acts." 
 
 This opinion, precisely the same as in the State report, 
 was published in pamphlet form in January, 1818, and 
 copies of it were scattered broadcast, in legal, political, 
 and religious circles, — Webster declining to furnish any 
 minutes of his argument therefor to Isaac Hill, the pub- 
 lisher. 
 
 Webster said of this opinion (letter to Story, September 
 9, 1818), "The truth is, the New Hampshire opinion is 
 able, ingenious, and plausible." 
 
 In July, 1818, Chancellor Kent visited Hanover. He 
 called upon the president and professors of the University, 
 but not upon those of the College. He purchased one of 
 the pamphlet copies of the opinion referred to, examined 
 it, commended it in the highest terms, and concurred in the 
 conclusion. 
 
 Chief Justice Kichardson was assailed with great virulence 
 for the position taken by him in his opinion, that the pur-
 
 OPINION OF KENT AND WEBSTER. 193 
 
 pose of the great barons of England, when they wrested 
 Magna CJiarta from King John, was not to tie their own 
 or the hands of Parliament, which they controlled, by the 
 per legein terrae clause, but those of the crown. It is 
 worthy of note that this opinion was recently reaffirmed 
 by the Supreme Court, in Davidson v. New Orleans, 96 
 U. S. 102. 
 
 But in general it has received from others " scanty jus- 
 tice." If the State Court erred, it did so aside from the 
 point referred to, and a few authorities cited upon an- 
 other, with all the light that could be thrown upon it. 
 The private correspondence of the counsel shows, with 
 the exceptions named, that nothing new, as a legal argu- 
 ment, was advanced at Washington. A comparison of the 
 arguments before the two courts brings us to the same 
 conclusion. 
 
 Thompson, in his letter of November 3, 1817, to Judge 
 Smith, says : "At Mr. Marsh's request, I write this line to 
 say that Ichabod Bartlett was heard to say they on their 
 part would not agree to a verdict in such form as that the 
 cause might be removed to the S. Court of the United 
 States. This is a report. Mr. Marsh says you must be 
 on your guard against chica,nery. Woodbury observed last 
 evening, not in my hearing, that it was doubtful whether a 
 decision would be had at Plymouth this term." 
 
 This letter was received by Judge Smith at Plymouth 
 court, November 6, 1817, the same day on which the opin- 
 ion was read by the chief justice. 
 
 Trustees v. Woodward was, in form, taken to the Supreme 
 Court from the November term, 1817, of the Superior 
 Court of New Hampshire ; but in fact, not until late in 
 December, 1817, in consequence of the difficulty the counsel 
 for the respective parties found in agreeing upon a special 
 verdict. Judge Smith drew one, Mr. Bartlett another. 
 No advantage could be gained for the plaintiffs over the 
 acute, quick-sighted, and tenacious Bartlett.
 
 194 DARTMOUTH COLLEGE CAUSES. 
 
 Underneath the agreement of May 25, ah-eady quoted, 
 the folio whig Avas written at the November term, 1817: 
 
 We agree that the special verdict shall be drawn up as soon 
 as may be, and signed by the counsel on both sides, under the 
 direction of the Cliief Justice. 
 
 Jeremiah Smith, 
 George Sullivan. 
 
 Mason, m his letter to Smith, of December 1, 1817, says : 
 '< I have received a letter from Mr. Webster, in which he 
 expresses a desire to have the record and writ of error in 
 the college cause as soon as possible, to send it on and have 
 it entered early in the docket. All that I can do in further- 
 ance of this object is to communicate his desire to you." 
 In his letter of December 11, 1817, to the same, Mason 
 says : "I received your letter, and have seen Mr. Bartlett 
 and his verdict. He objects to almost all yours, and we can 
 certainly agree to little of his. He says, however, he has 
 written to Mr. Sullivan that he drew his to match yours, 
 and that Mr. Sullivan will not suppose that he (Mr. B.) 
 thinks all his departures from you material, and that S. 
 and you will probably agree. I hope you may, for I think 
 there will [be] great trouble in any attempt to agree with 
 B. Judge Kichardson has seen both. What he thinks of 
 them I know not. It is important they be soon completed. 
 The bearer has both verdicts, I suppose, to deliver to Mr. 
 Sullivan." 
 
 In his letter of December 12, 1817, Mason says to Judge 
 Smith : " Your man came yesterday for the college verdicts, 
 while I was reading them for the first time. I had no time 
 to think of them. After he was gone, it occurred to me that 
 there might be a difficulty in your verdict as to the conver- 
 sion. If I rightly recollect, it does not state an actual con- 
 version, but a demand and refusal. * * * Perhaps 
 it is of no importance in our case, as the Supreme Court can 
 reverse on one point only. And for this reason, perhaps, it
 
 SPECIAL VERDICT 'WRIT OF ERUOU. 1!*5 
 
 would be best to have that point only presented to the court 
 in the conclusion of the verdict riitlier than the general con- 
 clusion which you contemplated. I am afraid there will be 
 a diiSculty in settling the verdict. Do ever}^ thing with Mr. 
 Sullivan if j'ou can." 
 
 In his letter of December 22, 1817, to Smith, Mason says : 
 " Judge Richardson got home last evening very sick, but 
 has sio-ned the citation and allowed writ of error without 
 
 O 
 
 difficulty. Bartlett declined reading the special verdict ; 
 said he supposed it right, and should make no objection. I 
 presume Sullivan will sign the agreement, etc. 
 
 "I think you had best annex the writ of error to the 
 record &> indorse a return for clerk Webster for fear he may 
 mistake &also make the return on the citation." 
 
 This was done. 
 
 On December 25, 1817, Jeremiah Smith for " plfs.," and 
 " Geo. Sullivan for deft," signed the following stipulation, 
 which was sent up with the special verdict : — 
 
 It is agreed by the parties that, if the plaintiffs shall recover 
 by the judgment of the Supreme Court of the United States, 
 they shall accept the delivery of the articles mentioned in their 
 declaration, in full satisfaction of the damages recovered. It is 
 also agreed that no advantage shall be taken in the Supreme Court 
 of the United States of any want of form in the proceedings, and 
 that the counsel then may add any facts, documents or records to 
 the special verdict, to be taken and deemed a part thereof, or ex- 
 pimge any fact therefrom which, in the opinion of the counsel or 
 Supreme Court, may be necessary to the obtaining of a decision 
 on the validity of the acts of the Legislature of New Hampshire, 
 recited in the special verdict; and that, if the said acts are 
 adjudged to be valid, the judgment is to be affirmed ; otherwise, 
 reversed. It is also agreed b}' the plaintiffs' counsel, in order 
 that the same question ma}^ come fairly before the court, that the 
 demand, refusal and conversion stated in the special verdict, shall 
 be considered as made and done on the day preceding the com- 
 mencement of this suit.
 
 196 DARTMOUTH COLLEGE CAUSES. 
 
 The skeleton special verdict drawn by Mr. Bartlett is as 
 follows : — 
 
 The jurors upon their oaths say that his majesty, George the 
 Third, king of Great Britain, &c., issued his letters patent under 
 the public seal of the province now State of New Hampshire, in 
 the words following. 
 
 And the said jurors upon their oath further say that after- 
 wards upon the eighteenth day of the same December, the said 
 letters patent were duly enrolled and recorded in the secretary's 
 office of said province, now State of New Hampshire, and after- 
 wards and within one year from the issuing of the same letters 
 patent, all the persons named as trustees in the same, accepted 
 the said letters patent and assented thereto and the corporation 
 therein and thereby created & erected was duly organized and has, 
 until the passing of the act by the Legislature of New Hampshire, 
 (hereafter mentioned) of the 27th June, A. D., 1816, and ever 
 since (unless prevented by said act and the doings under the same) 
 continued to be a corporation. 
 
 And the said jurors upon their oath further say that said cor- 
 poration at its creation and organization as aforesaid acquired & 
 received by donation & otherwise, lands, goods, chattels and 
 monies of great value, and from time to time since have acquired 
 & received, in manner aforesaid, lands, goods, chattels and monies 
 of great value, and on the same 27th day of June, A. D., 1816, 
 the said corporation created as aforesaid, had & held and (unless 
 prevented by said act and the doings under the same) ever since 
 have had & held divers lands, tenements, hereditaments, goods, 
 chattels, and monies, acquired as aforesaid, for the uses and pur- 
 poses in said letters patent specified ; the yearly value of the same 
 not exceeding the sum of $26,666. 
 
 And the said jurors on their oath further say that the greater 
 part of said monies, & lands received and acquired by said cor- 
 poration at the time of its creation and since, were received and 
 acquired by donation and grant from the province and now State 
 of New Hampshire — and that part of said lands holden by said 
 corporation as aforesaid were granted by, and are situate in the 
 State of Vermont.
 
 bartlett's special verdict. 197 
 
 And the said jurors upon their oath further say that said cor- 
 poration on the same 27th day of June, A. D., 1816, was possessed 
 of tlie goods & chattels in the declaration in this action mentioned, 
 at the place therein mentioned, and for the uses and purposes in 
 said letters patent specified, & continued so possessed until and at 
 the time of the demand and refusal hereinafter mentioned ; unless 
 devested thereof by the said act of 27th June, A. D., 1816, and the 
 proceedings under the same as hereinafter recited. 
 
 And the said jurors upon their oath further say that on third 
 day of June, A. D., 1815, John Wheelock, a son and heir of 
 Eleazar Wheelock, in said letters patent mentioned, and President 
 of said Dartmouth College, duly appointed, and constituted by the 
 last will and testament of said Eleazar Wheelock, and for thirty- 
 five j-ears having exercised the office of President, agreeably to 
 the provisions of the letters patent as aforesaid, by his memorial 
 & petition to the Legislature of New Hampshire, represented that 
 the interests of the institution of Dartmouth College and of liter- 
 ature, required that the Legislature should pass an act for the pur- 
 poses and with the provisions of the act of June 27, 1816, herein- 
 after recited. 
 
 And the said jurors upon their oaths further sa^' that on 
 27th day of June, A, D., 1816, the Legislature of the said State 
 of New Hampshire, made and passed an act entitled, "An act to 
 amend the charter and improve the corporation of Dartmouth 
 College," in the words following. 
 
 And the said jurors upon their oath further say that agreeably 
 to the provisions of said act of the Legislature of June 27, 1816, 
 the Board of Trustees as therein prescribed, was duly completed 
 to the number of twenty-one, by the appointment of seven per- 
 sons, in addition to those who at the passing of said act held the 
 office of trustees of Dartmouth College agreeably to the provisions 
 of the letters patent aforesaid. 
 
 And said jurors upon their oath further say, that the Board 
 of Trustees assembled and were organized agreeably to the pro- 
 visions of said act at Hanover on the twenty-sixth day of August, 
 A. D., 1816. 
 
 And the said jurors upon their oath further say that Wm. H. 
 Woodward, the defendant, was the secretary & treasurer the cor- 
 poration of Dartmouth College at the time of the passing of said
 
 198 DARTMOUTH COLLEGE CAUSES. 
 
 act of the Legislature of the 27. June, 1816, at the meeting of 
 said Board of Trustees, organized agreeably to the provisions of 
 said act of the Legislature, of June 27th, A. D., 1816, was 
 elected and duly appointed and qualified secretary and treasurer 
 of said corporation so organized as by said act is provided, and 
 as secretary & treasurer as aforesaid, — at the time of the demand 
 hereinafter mentioned and at the commencement of this action, 
 held and still claims to hold, the articles described in the plff' s. 
 declaration. 
 
 And the said jurors upon their oath further say that Timothy 
 Farrar, Asa McFarland, Charles Marsh, Nathaniel Niles, Seth Pay- 
 son, Elijah Paine, John Smith and Thomas W. Thompson, trustees 
 of said Dartmouth College, duly appointed under said letters 
 patent previous to the passing by the Legislatui'e of New Hamp- 
 shire, of the said act of the 27th June, 1816, assembled at 
 Hanover aforesaid, on the 28th day of August, A. D., 1816, and 
 refusing to act or meet with the Board of Trustees as organized 
 agreeably to said act of said Legislature, of the 27th June, A. D., 
 1816, but claiming to have authoi'ity to act as a quorum of the 
 Board of Trustees of Dartmouth College, as organized by the 
 letters patent as aforesaid, independent of said act of the Legisla- 
 ture of June 27, A. D., 1816, passed a certain declaration or 
 resolve in words following. 
 
 And the said jurors upon their oath further say that the said 
 Eight trustees above named have never accepted, assented to, or 
 acted under the said act of the Legislature, of the 27th June A. 
 D., 1816, but have continued to act, and still claim to act by vir- 
 tue of said letters patent, independent of said act of the Legisla- 
 ture, of the 27 June, A. D., 1816. 
 
 And the said jurors upon their oath further say that Said Eight 
 Trustees above named, on the 28th day of August, A. D., 1816, 
 passed a vote purporting to remove the said Wm. H. Woodward, 
 from the office of secretary and treasurer of the corporation of 
 Dartmouth College, of which said votes the said Woodward had 
 due notice, on the day last mentioned. 
 
 And the said jurors upon their oath further say, that the eight 
 trustees above named claiming to act by virtue of said letters 
 patent, as aforesaid, independent of said act of the Legislature, 
 of the 27th June, A. D., 1816, on the 7th day of October, A. D.
 
 JUDGE smith's verdict COUNSEL AT WASHINGTON 199 
 
 1816, deraanded of the said Wm. H. Woodward the goods & 
 chattels in said declaration specified, and requested the said 
 Wm. H. Woodward to deliver the same to them, which the said 
 Woodward then & there refused to do, & has ever since refused 
 to do. 
 
 Upon the back is the following indorsement, in the hand- 
 writing of Judge Smith: "Spec, verdict, reed. Dec. 12, 
 
 1817, proposed by defts, not adopted." 
 
 From the indorsements on the paper, Judge Smith ap- 
 parentW objected to the whole, or portions of paragraphs 
 4, 6, 8, 9, 10, 13, and 14. 
 
 The special verdict now upon the files, aside from the 
 copy of the charter and the acts whose validity was in 
 question, is in the handwriting of Judge Smith, and in 
 this form was assented to by the genial, kindly, easy, and 
 less alert vSulli van. It is signed, "Caleb Keith, foreman ; 
 Jeremiah Smith, for Plfs. ; Geo. Sullivan, for Deft." 
 
 The copy of the ^\Tit of error on file is also in the hand- 
 writing of Judge Smith. The assignment of errors on file 
 is also in his handwriting, but is signed, " Jeremiah Smith, 
 J. Mason." 
 
 The instructions to the clerk are in the handwriting of 
 Judge Smith, and dated, "25 Dec, 1817." 
 
 These papers were all sent by Smith, by special messen- 
 ger, and were filed with the clerk, December 29, 1817. 
 
 Subscription papers were circulated, and Webster took 
 up a heavy collection among the Boston merchants to defray 
 the expenses of the further litigation. All the counsel re- 
 tained their connection Avith the cause, but none on either 
 side were so situated as to attend to it at Washino-ton ex- 
 cept Webster. The trustees, the faculty, and his associates 
 handed over the cause to him, with power to procure such 
 assistance as he desired. The other side, for some reason 
 which nobody seems to understand, was committed to John 
 Holmes, of Maine, to w^hom Jefferson wrote his celebrated 
 "fire-bell in the night" letter; to William Wirt, and — at 
 too late a day — to Pinkney.
 
 CHAPTEK YII. 
 
 TRUSTEES V. WOODWARD AT WASHINGTON — PROGRESS OF 
 THE OTHER CAUSES — PINKNEY RETAINED — RE ARGUMENT 
 EXPECTED — HE PPvEPARES FOR IT — SUMMARILY SHUT OFF 
 BY A DECISION — THREE-FOURTHS OF WEBSTER'S ARGU- 
 MENT ON POnSTTS NOT BEFORE THE COURT — HIS REASONS 
 FOR IT — SOURCE OF HIS ARGUMENT. 
 
 On March 10, 1818, four months and four days after the 
 decision adverse to the majority of the old trustees in 
 the State court, the first of these causes (Trustees v. 
 Woodward ) came on for argument before the full bench of 
 the Federal Supreme Court at Washington. On March 12, 
 1818, the arguments closed, and the judges went into con- 
 sultation. Notwithstanding the efii"ect of the contrast 
 between the impotence in preparation and the weakness in 
 argument displayed on the part of the State, and the great 
 weight of the elaborated Mason-Smith-Webster argument, 
 and the eloquence and adroitness of Webster's great effort, 
 that conference revealed to the judges — an anomalous state 
 of things in that tribunal upon a great constitutional ques- 
 tion — that they could agree upon nothing, that no judg- 
 ment could be rendered, and that the cause must be con- 
 tinued to the February term, 1819, — another year. 
 
 Two of the seven judges were undecided ; Story had not 
 yet recanted his opinion adverse to the plaintiffs ; and the 
 remaining four members of the court were equally divided. 
 At the opening of the court on the morning of March 13, 
 1818, Judge Marshall announced, in general terms, the re- 
 sult of this conference, and that in consequence the cause 
 must be continued. On March 14, 1818, the court ad- 
 journed without day. 
 
 ( 200 )
 
 SUMMARY. 201 
 
 Webster's pet cases, to which we have before referred, 
 and to which three-fourths of his legal argument as reported 
 by Farrar was devoted, distinctly raised the point upon 
 which he greatly relied ; but they were not only not before 
 the Supreme Court when he made that argument, but had 
 not reached the Circuit Court. As before stated, the United 
 States Circuit Court for New Hampshire was held at Ports- 
 mouth and Exeter, and commenced its sessions in May and 
 October respectively. These terms were not only in Judge 
 Story's circuit, but were held, as it were, almost within ear- 
 shot of his home. 
 
 After the continuance of Trustees v. Woodward, Web- 
 ster busied himself in de\'isiug means for the transfer of 
 these causes from the May term of the Circuit Court, 
 1818, to Washington, in order to " give " them an " earlier 
 standing" upon the docket of the Supreme Court. His 
 purpose, as stated by himself, was to accomplish this by 
 turning an agreement drawn up by counsel, like the one in 
 Trustees v. Woodward, into a special verdict, and then in- 
 ducing Judge Story, W\q protege of Mason and great admirer 
 of Webster, and the district judge to disagree pro forma^ 
 without either argument or decision, and to take the cause 
 up at once to the Supreme Court, upon the formal certifi- 
 cate that the judges " were opposed in opinion." 
 
 The causes were transferred as Mr. Webster desired, but 
 not until the October term of the Circuit Court, 1818. 
 
 From the first, the outside pressure in favor of the Col- 
 lege upon the State and Federal judges had been very 
 marked and persistent. Soon after Mr. Webster's argu- 
 ment, the requisite steps were taken to make it still more 
 efiective upon the recalcitrant judges. 
 
 In August, 1818, Webster furnished to Judge Story 
 copies of the arguments of the counsel for the plaintiffs, 
 delivered in March preceding, to be distributed by him to a 
 portion of the judges. These arguments were furnished, 
 apparently, partly in the nature of briefs, and partly as
 
 202 DART3IOUTH COLLEGE CAUSES. 
 
 camjDaign documents in reply to the opinion of Chief Jus- 
 tice Richardson in the State court, which had been " widely 
 circulated." 
 
 Bad news travels fast. It was impossible for the politi- 
 cians to conceal, under complimentary eulogies of the wit 
 of Holmes and praises of the brilliant declamation of Wirt, 
 the legal fiasco at Washing-ton from those who had the 
 honor of Wheelock and the interests of the University 
 most at heart. This brought W^illiam Pinkney, of Mary- 
 land, — the only man at the bar of the Supreme Court who 
 could meet Webster upon any thing like equal ground, — 
 into these causes, invested with powers almost as absolute 
 as those voluntarily conferred upon AVebster by his great 
 associates and clients. This fact immediately became known 
 to Judge Story, the counsel for the plaintiffs, and their 
 clients. No man knew the judges, their biases, and what 
 he had to contend with, in and out of court, better than 
 Pinkney. His first step showed the genius of a commander. 
 
 About the first of November, 1818, he notified the op- 
 posing counsel that he should move for a reargument in 
 Trustees v. WoodAvard, and should argue it himself, if the 
 court permitted. It is hardly possible that this was not 
 made known to Story, his great friend and admirer, and to 
 the other judges of the Supreme Court, at an early day. 
 Webster and his associates and clients conferred, and took 
 such steps at once as they could to prevent a reargument. 
 
 Pinkney never attempted to argue a cause without the 
 most thorough preparation, and this case was no exception 
 to the rule. In order that nothing necessary to a correct 
 understanding of the cause might escape him, Pinkney kept 
 Cyrus Perkins, the secretary of the University board, at his 
 elbow for a whole week preceding the session of the Su- 
 preme Court, which nominally commenced on February 1, 
 1819. Dr. Perkins was professor of anatomy and surgery 
 in the medical department of Dartmouth College. He 
 was an able man ; the family physician of Webster, and the
 
 SUMMARY. 203 
 
 devoted friend of Wheelock. Pie had lived for years in tiie 
 atmosphere of these troubles, and knew the details of their 
 history by heart, and brought to this conference with Pink- 
 ney all the documentary evidence which it was supposed 
 would throw any light upon the subject. On Monday, 
 February 1, 1819, Pinkncy went up by pike from Balti- 
 more to Washington. As all the judges were not present, 
 the court met formally on that day, and adjourned over till 
 Tuesday, when the business of the session commenced. 
 
 As the counsel for the State had no idea that a decision 
 would be made at that time, none of them were present at 
 the opening of the court on Tuesday morning except Pink- 
 ney, who sat near the chief justice, watching for an oppor- 
 tunity to open the battle with his motion for a reargument. 
 On the morning of February 2, 1819, the instant the judges 
 had taken their seats the chief justice turned his "blind 
 ear" towards Pinkney (as tradition has it, and as Mills 01- 
 cott, one of the plaintiffs, used to relate it), and shut off his 
 motion by announcing that the judges had formed opinions 
 during the vacation, and immediately commenced reading 
 his opinion, which was in manuscript, in his peculiar hand- 
 writing, and on eighteen folio pages. 
 
 Judge Todd was absent from sickness ; Judge Duvall dis- 
 sented ; the remaining four judges simply ' ' concurred in 
 the result." No opinion was ever delivered in court by any 
 of the other judges. Some time after, Judges Washington 
 and Story handed their opinions, which appear in the printed 
 volume, to the reporter. 
 
 On February 3, 1819, the chief justice delivered the 
 opinion in the case of Baptist Association v. Hart's Execu- 
 tors, 4 Wheat. 1, which overthrew the doctrine of charita- 
 ble uses, etc., in three great States of the Union, and which 
 has since been overturned because it reasoned history out 
 of existence. This cause was argued at the same term 
 with the College case. On February 8 and 9, Sturges v. 
 Crowninshield was argued ; and on February 17, 1819, the
 
 204 DARTMOUTH COLLEGE CAUSES. 
 
 chief justice delivered the opinion of the court in that case, 
 Judge Livingston not concurring. On February 10 and 11, 
 1819, the famous New Hampshire case of Bullard v. Bell 
 was argued by Pinkney and Wel)ster. The defendant was 
 one of the judges on the New Hampshire bench when the 
 College case was decided by that court. It was one of the 
 Hillsborough Bank cases, of which Judge Bell was presi- 
 dent, and involved the question of his individual liability, 
 growing out of certain transactions of the bank. Pinkney 
 was counsel for Bullard, and Webster for Bell. It is the 
 onlv instance which now occurs to us in which these two 
 legal giants were pitted against each other in that arena. 
 Each did his best. The cause was heard before six judges ; 
 each carried one-half the court with him, and the case was 
 never reported. 
 
 Soon after the reading of Judge Marshall's opinion, Web- 
 ster moved that judgment be entered up nunc pro tunc. 
 Judge Woodward having deceased since the last term. This 
 motion was opposed by Mr. Pinkney and Mr. Wirt, upon 
 the ground that the other causes then upon the docket em- 
 braced additional facts, and that no final judgment should 
 be entered until all the causes were fully heard. 
 
 On February 23, 1819, the court granted the plaintiffs' 
 motion. On March 12, 1819, the court adjourned without 
 day, having been in session about six weeks. Before the 
 adjournment, Mr. Pinkney attempted to avail himself of the 
 stipulations which came up with the special verdicts, both 
 from the State court and the United States Circuit Court, 
 that any facts contained in the special verdict might be ex- 
 punged, and that any new facts might be added, if deemed 
 material to a right decision of the cause. Webster, with 
 characteristic tact, refused to alloAV any fact either to be 
 expunged or added. He thus forced a judgment against 
 Judge Woodward, and compelled Pinkney to "consent" 
 that the other causes should be " remanded to the Circuit 
 Court for the District of New Hampshire, for further pro-
 
 SUMMARY. 205 
 
 ceedings to be had therein, according to law," without any 
 direction from the Supreme Court. 
 
 The old trustees did uot wait for the judgment in their 
 favor, but, as soon as the news of Judge Marshall's oiDinion 
 reached them, made the necessary arrangements, and on 
 February 8, 1819, took possession, by virtue of the law of 
 the strongest, of the College buildings, etc., which up to 
 that time had been held by President Allen, and occupied 
 by the officers and students of the University. 
 
 Mr. Webster followed up his judgment by serving the 
 proper notices upon the adverse parties in the causes in the 
 Circuit Court, to be ready for trial at the May term, which 
 commenced on Saturday, May 1, 1819. On that day Judge 
 Story delivered an elaborate opinion, adverse to the State, in 
 these causes. A judgment nisi was then rendered for the 
 plaintiffs, to become absolute unless the defendants, during 
 the May term of the court held in Boston (commencing May 
 15, 1819), should produce such further evidence as should, 
 in the opinion of Judge Story, be sufficient cause for further 
 delay. On May 27, 1819, James T. Austin, one of the 
 counsel in the interest of the University in these causes, 
 presented the "new facts" to Judge Story. The judge 
 took the papers and reserved his decision. Story held that 
 none of the facts varied the case as it had been considered 
 and decided, and that none of them contradicted the recitals 
 of the charter, and ordered judgment and execution in these 
 suits. Technically, this was the end of the College causes. 
 
 Webster now devoted his special attention to pushing for- 
 ward the publication of Farrar's report, a work that had 
 been for some time on his hands. 
 
 And finally, at the May term, 1820, of the Superior Court, 
 judgment was rendered against the College, in favor of 
 Wheelock's executor, and execution issued thereon. 
 
 Justice to all requires that we should go beneath this sur- 
 face outline and enter into details.
 
 20t) DARTMOUTH COLLEGE CAUSES, 
 
 If the construction thus given to the clause in relation to 
 the " obligation of contracts" is correct, it should be up- 
 held ; but if founded in error, involving, as it may, vast con- 
 sequences to millions, it must be overthrown. To determine 
 this question, the decision, in its "inner and outer life," 
 must be analyzed and weighed dispassionately in the light 
 which has since been thrown upon it, uninfluenced by fear 
 or favor, or the shadow of great names, which, like " hard 
 cases," so often " make shipwreck of the law." 
 
 Blocks of overruled cases, opinions sv/athed in confusion 
 and rolled in tangles, and decisions so inconsistent and con- 
 tradictory that no one can reconcile them, admonish us that 
 other judicial tribunals, however pure, able, and learned, are 
 yet human, and may err. We shall assume that the judges 
 of the Federal Supreme Court, in their judicial earth-life, 
 are no exception to the rule. 
 
 Probably no litigant ever came before that court under 
 circumstances, entirely independent of their merits, so un- 
 favorable for success as the State in these causes. 
 
 Judge Wilson, who had special opportunities for knowing 
 the meanino; of the " obli oration " clause, had been in his 
 grave more than twenty years when the decision was made. 
 Apparently the history of this clause, so far as court and 
 counsel were concerned, was enveloped in total darkness.^ 
 
 Judge Marshall naturally believed in a government con- 
 
 1 Col. Haines, in his argument before the Supreme Court, at the February- 
 term, 1824, in Ogden w. Saunders, said : " What were the intentions of those 
 who framed the Constitution when they inserted in it the provision that ' no 
 State should pass a law impairing the obligation of contracts ? ' Unhappily for 
 this country and for the general interests of political science, the history of the 
 Convention of 1787, which framed the Constitution of the United States, is 
 lost to the world. We are compelled to resort to contemporaneous history in 
 giving a construction to this Constitution ; and it has already been more than 
 once intimated by this court, that in giving expositions to the various provi- 
 sions of this great political instrument, it was well to keep in view the mischiefs 
 which the Convention intended to cure and prevent." 
 
 In Edwards v. Kearzey, 96 U. S. 607, Mr. Justice Swayne says: "The 
 point decided in Dartmouth College v. Woodward (4 Wheat. 518) had not, 
 it is believed, when the Constitution was adopted, occurred to any one. There 
 is no trace of it in the Federalist, nor in any other contemporaneous publica- 
 tion."
 
 THE DECISION COURSE OF ARGUMENT. 207 
 
 structed by the rules of logic, and operated upon rigid 
 mathematical princi})les. The political aspect which had 
 been forced upon the case, and of which Mr. Webster availed 
 himself with great adroitness in his argument, in the eyes 
 of Marshall transformed this case into another Marbury v. 
 Madison (1 Crauch, 137), which was in reality a judico- 
 political wager of battle between John jMarshall and Thomas 
 Jefferson, the two great Virginians whose political and 
 personal hate descended with them to the tomb. The coun- 
 sel for the State were new men in the cause, unfamiliar with 
 the local history and the arguments in the State court, 
 inadequately prepared, ill-assorted and inharmonious, — the 
 first immersed in politics, the second overloaded with busi- 
 ness, and the third silent as a consequence of his position 
 in the case ; while, on the other hand, the plaintiffs not only 
 had corresponding advantages, but also that of the learning 
 and industry of Smith and Mason, and of the prodigious 
 intellectual power of the great triumvirate, — Mason, Smith, 
 and Webster, — who overtopped alike the whole court, :iud 
 Holmes and Wirt, the opposing counsel. 
 
 We have seen that but six of the forty-three pages of 
 Mason's argument in the State court were devoted to the 
 "single point" which could properly be mooted in tho 
 Supreme Court. Smith's great learning made him more 
 diffuse and discursive. Webster's argument, etc., as care- 
 fully written out by him for Farrar, occupied forty-six 
 pages : six pages were devoted to a statement of the case, 
 ten to the question before the court, and thirty to the first 
 and second points taken by Mason. In other words, at least 
 three-fourths of his legal argument at Washington was upon 
 points not before that court. 
 
 We give the admission of this fact, and his reasons for 
 this extraordinary course, in Mr. Webster's own words : 
 " It will be contended by the plaintiffs that these acts are 
 not valid and binding on them loithout their assent. 1. Be- 
 cause they are against common right and the Constitution
 
 208 DARTMOUTH COLLEGE CAUSES. 
 
 of New Hampshire. 2, Because they are repugnant to the 
 Constitution of the United States. 
 
 " [I am aware of the limits which bound the jurisdiction 
 of the court in this case, and that, on this record, nothing 
 can be decided but the single question whether these acts 
 are repugnant to the Constitution of the United States. 
 Yet it may assist in forming an opinion of their true nature 
 and character, to compare them with these fundamental 
 principles, introduced into the State governments for the 
 purpose of limiting the exercise of the legislative power, 
 and which the Constitution of New Hampshire expresses 
 with great fulness and accuracy.] 
 
 *' It is not too much to assert that the Legislature of New 
 Hampshire would not have been competent to pass the acts 
 in question, and to make them binding on the plaintiffs 
 without their assent, even if there had been, in the Consti- 
 tution of New Hampshire, or of the United States, no 
 special restriction on their power ; because these acts are 
 not the exercise of a power properly legislative. Their 
 object and effect is to take away from one rights, property, 
 and franchises, and to grant them to another. This is not 
 the exercise of a legislative power. To justify the taking 
 away of vested rights, there must be a forfeiture ; to ad- 
 judge upon and declare which is the proper province of the 
 judiciary." (Farrar's Eep. 244.) 
 
 Mr. Webster's argument was carefully written out by 
 him, with those of Smith and Mason under his eye ; it lies 
 before us, with its erasures and interlineations. Pages of it 
 were suppressed. The part that was printed was substan- 
 tially unchanged. The paragraph in brackets was not in 
 the original, but was substituted for one of an entirely dif- 
 ferent character. 
 
 If he was right, if vested rights can only be divested by 
 the courts, and the rights in question had vested in the old 
 trustees, he had no occasion to invoke the aid of the " obli- 
 gation" clause.
 
 WEBSTER S ARGUMENT. 209 
 
 We have the authority of Mr. Webster for saying that, 
 aside from a single point, and a few authorities cited in 
 support of another, nothing as a legal argiiment was ad- 
 vanced by him at Washington which had not been urged by 
 Smith and Mason in the State court. 
 
 Webster, in his letter to Mason, of December 8, 1817, 
 says: "Judge Smith has written for a form of citation, 
 etc., in the College cause, which I shall send him, & write 
 to him for his minutes. 
 
 "My wish is to see both him & you before I go to 
 Washington. If I should not be kept in town by the court, 
 as I do not expect to, I intend seeing ^''ou about Christmas 
 or New Year. Everybody will expect me at Washington 
 to deliver the Exeter argument, therefore the Exeter argu- 
 ment must be drawn out before I go. I will spend a day or 
 two on this subject at Portsmouth, or Exeter, if you incline 
 that I should do so. 
 
 " We must have Richardson's opinion a little beforehand 
 if we can, that we may consider its weak points, if there be 
 any such." (Mason Papers; Harvey's Webster Papers.) 
 
 In his letter to Judge Smith, of December 8, 1817, 
 Webster says: " If I argue this cause at Washington, 
 every one knows I can only be the reciter of the argument 
 made by you at Exeter. You are, therefore, principally in- 
 terested, as to the matter of reputation, in the figure I 
 make at Washington. Nothing will be expected of me but 
 decent delivery of your matter. This seems perfectly well 
 understood this way, and I have been frequently compli- 
 mented by gentlemen saying that, if the cause goes to 
 Washington, they shall have a chance of hearing something 
 of Judge Smith's argument. 
 
 ' ' I have some notion of going to Exeter for a day or 
 two, to practice and rehearse before I go to Washington. 
 To be serious, however, you and Mason must help me ar- 
 range the argument. The best mode will be to have it
 
 210 DARTMOUTH COLLEGE CAUSES. 
 
 written out, or all collected in notes, so that I can write it 
 out." (1 Webster's Priv. Cor. 268.) 
 
 In his letter to Judge Smith, of January 9, 1818, he says : 
 " I must beg the favor of all your notes. I have not as- 
 surance enough, although not entirely destitute, to think 
 of arguing this cause on my own strength. To argue it as 
 you did will be more than I shall ever be able to do. I 
 wish to present the cause fully and fairly to the court, and 
 your notes will enable me so to do. If anybody is coming 
 over, pray let me have them soon, and all of them. If you 
 have no opportunity to send them direct, please forward 
 them enclosed to Mr. Mason. I am writing to him to-day, 
 and will ask him to take care of the packet and send it to 
 me directly." (1 Webster's Priv. Cor. 269.) All these 
 " notes " and " minutes " were promptly furnished to Mr. 
 Webster, and were returned by him to Mason, March 22, 
 1818. In his letter of that date to Mason, Webster says : " I 
 send you your brief and Judge Smith's ; you may both prob- 
 ably need those hereafter." (1 Webster's Priv. Cor. 278.) 
 
 In his letter to Judge Smith, of March 14, 1818, two 
 days after the close of the argument, he says : "I opened 
 the case with most of the principles and authorities on 
 which we relied at Exeter. Your notes I found to contain 
 the whole matter. They saved me great labor ; but that 
 was not the best part of their service ; they put me in the 
 right path, and conduct, as I think, to an irresistible 
 conclusion. On some parts of the case I have varied my 
 Adews a little. The rogues here in Congress complain that 
 the cause was put on grounds not stated in the court below. 
 There is little or nothing in this. I labored the point that 
 it was a private corporation, a charity. Eleazer Wheelock, 
 its founder, as such, entitled generally by law to be visitor ; 
 all the power of visitor assigned, in law, by him to the 
 trustees, etc. The only new aspect of the argument was 
 produced by going into cases to prove these ideas, which
 
 SOURCE OF HIS ARGUMENT. 211 
 
 indeed lie at the very bottom of your argument." ( 1 Web- 
 ster's Priv. Cor. 276.) 
 
 In his letter of April 23, 1818, to Mason, Webster says : 
 '< As to the college cause, I cannot argue it any more, I 
 believe. I have told you very often that you and Judge 
 Smith argued it very greatly. If it was well argued at 
 Washington, it is a j^roof that I was right, because all that 
 I said at Washington was but those two arguments, clumsily 
 put together by me. I do not mean to hold you answerable 
 for any deficiencies ; but in truth I have little right to claim 
 the merit, if there be any, in the opening of our case." 
 (1 Webster's Priv. Cor. 280. ) In his Sunday evening letter 
 to Mason, he says : '< There is one point on which I have 
 suspected that my opinion difiers from Judge Smith' s ; I 
 think that the trustees are most clearly visitors, and that 
 this lies at the bottom of our case, and as visitors, I think 
 they are not answerable in any court, while acting within 
 the scope of their visitorial power. I should be glad you 
 would think of this a little. If I am in an error, it is a 
 pretty important error." (1 Webster's Priv. Cor. 311.) 
 
 In his letter to Mason, of April 10, 1819, Webster says : 
 *' My own interest will be promoted hy preventing the book 
 [Farrar's report]. I shall strut well enough in the Wash- 
 ington report, & if the ' book ' should not be published, the 
 world would not know where I borrowed my plumes. But I 
 am still inclined to have the book. One reason is that vou 
 & Judge Smith may have the credit which belongs to you. 
 Another is, I believe Judge Story is strongly of opinion it 
 would be a useful work, that Wheaton's reports go only into 
 the hands of professional men, but that this book might be 
 read by other classes, &c. &c. If it should be decided at May 
 term that another cause should go to Washington, I should 
 be very unwilling to have the book published, but I have 
 hitherto had a strong belief we should finish the actions at 
 May court. I think so still, but very probably may be dis-
 
 212 DARTMOUTH COLLEGE CAUSES. 
 
 appointed. I should be for pressing the judge to adjourn 
 for a short time rather than continue the causes. I think 
 he will feel the propriety of settling the controversy as far 
 as may be done. I shall come down, accidents excepted & 
 very possibly Mrs. W. may attend the same court." (Mason 
 Papers ; Harvey's Webster Papers.)
 
 CHAPTER YIII. 
 
 HISTORY OF THE OBLIGATION CLAUSE — JUDGE WILSON 
 ITS AUTHOR — MEANING OF IT — DEBATES IN THE FEDERAL 
 CONTENTION- ARGUMENT OP COL. HAINES — VIEW OF 
 WILSON, ELLSWORTH, LUTHER MARTIN, GOUVERNEUR 
 MORRIS, AUSTIN, AND OTHERS. 
 
 Aet. I., sect. 10, of the Constitution provides that "no 
 State shall * * * pass any * * « j^w impairing 
 the obligation of contracts." This phrase is not the lan- 
 guage of the common law. We did not derive it from the 
 mother country. We find its source elsewhere. 
 
 Nathan Dane, the author of " Dane's Abridgment," and 
 to whom the Harvard Law School is so much indebted, was 
 a Massachusetts lawyer. He was born in 1752, and was 
 admitted to the bar when thirty years old. He was a mem- 
 ber of the Continental CongTess in 1785-6-7. In 1786 it 
 was found necessary to establish a form of government over 
 the vast region then known as the '* North-west Territory." 
 The task of drafting it was assigned to Dane, then thirty- 
 four years old. On July 13,1787, the expiring Congress, — 
 the Convention for framing the present Constitution being 
 then in session, — though without "the least color of con- 
 stitutional authority," adopted the ordinance without a 
 single alteration. One of its provisions (we use the italics 
 of the author) was: "And in the just preservation of 
 rights and property, it is understood and declared, that no 
 law ought ever to be made, or to have force in said terri- 
 tory, that shall, in any manner whatever, interfere with or 
 affect private contracts or engagements, bond fide and with- 
 out fraud, previously formed." 
 
 (213)
 
 214 DARTMOUTH COLLEGE CAUSES. 
 
 That the prune purpose of this clause was to prohibit 
 the Legislatures of the expectant States from interfering 
 trorespectively with the enforcement of private executory 
 contracts is obvious ; that the clause adopted by the Fed- 
 eral Convention was intended to restrict, rather than to 
 enlarge, the scope of the clause in the ordinance, seems 
 clear. 
 
 That Convention nominally met on May 14, 1787. It 
 formally concluded its labors on September 17, 1787. From 
 time to time the "obligations of the Federal pact," the 
 " obligations of the Confederacy," the difference between 
 " moral obligation " and " political operation," the " obli- 
 gation " of States and those of the United States, had been 
 discussed by the leading minds in the Convention, — Judge 
 Ellsworth, Judge Wilson, Mr. Gerry, and Dr. Johnson. 
 On August 27, 1787, when discussing the clause conferring 
 jurisdiction on the Federal judiciary, in answer to Gouv- 
 erneur Morris (the able and adroit man who did the work 
 of the committee on style, and gave the "finish" to the 
 final draught of the Constitution), who proposed the ques- 
 tion, " whether it is extended to matters of fact as well as 
 law, and to cases of common law as well as civil law," 
 Judge Wilson (who was even more to the committee on 
 detail than Morris to that on style) said : " The committee, 
 he believed, meant facts as well as law, and common as well 
 as civil law. The jurisdiction of the Federal Court of 
 Appeals had, he said, been so construed." On August 28, 
 1787, Judge Wilson and Mr. Sherman moved to insert after 
 the words "coin money," in Art. XII. of the new Con- 
 stitution, as reported by the committee on detail, of which 
 Judge Wilson was a leading member, the words, " nor emit 
 bills of credit, nor make an}i;hing but gold and silver coin 
 a tender in payment of debts." After a brief debate, the 
 amendment was adopted. IVIr. King, of Massachusetts, then 
 moved to add the clause in the ordinance of 1787 which we
 
 DANE THE OBLIGATION CLAUSE. 215 
 
 have quoted from Mr. Dane. The following debate en- 
 sued : — 
 
 "Mr. Gouverneur Morris. — This would be going too far. 
 There are a thousand laws relating to bringing actions, limitations 
 of actions, etc., which affect contracts. The judicial power of 
 the United States will be a protection in cases within their jurisdic- 
 tion ; and within the State itself a majority must rule, whatever 
 may be the mischief done among themselves. 
 
 "Mr. Sherman. — Why then prohibit bills of credit? 
 
 "Mr. Wilson was in favor of Mr. King's motion. 
 
 "Mr. Madison admitted that inconveniences might arise from 
 such a prohibition ; but thought, on the whole, it would be over- 
 balanced by the utility of it. He conceived, however, that a 
 negative on the State laws could alone secure the effect. Evasions 
 might and would be devised by the ingenuity of the Legislatures. 
 
 "Col. Mason. — This is carrying the restraint too far. Cases 
 will happen that cannot be foreseen, where some kind of interfer- 
 ence will be proper and essential. He mentioned the case of 
 limiting the period for bringing actions on open account — that of 
 bonds after a certain lapse of time — asking, whether it was proper 
 to tie the hands of the States from making provision in such cases. 
 
 "Mr. Wilson. — The answer to these objections is, that retro- 
 spective interferences only are to be prohibited. 
 
 " Mr. Madison. — Is not that already done by the prohibition of 
 ex post facto laws, which will oblige the judges to declare such 
 interferences null and void? 
 
 " Mr. Rutledge moved, instead of Mr. King's motion, to insert, 
 ' nor pass bills of attainder, nor retrospective laws.' " 
 
 On which motion seven States voted aye, and three no. 
 
 On August 29, 1787, "Mr. Dickinson mentioned to the 
 House that, on examining Blackstone's Commentaries, he 
 found that the term ' ex post facto ' related to criminal 
 cases only ; that they would not consequently restrain the 
 States from retrospective laws in civil cases ; and that some 
 further provision for this purpose would be requisite." 
 
 On September 12, 1787, Dr. Johnson, from the committee 
 on style, etc., which consisted of Johnson, Hamilton,
 
 216 DARTMOUTH COLLEGE CAUSES. 
 
 Gouverneur Morris, Madison, and King, reported the Con- 
 stitution in a new draft. Sect. 1 of Art. X. provided: 
 "No State shall coin money, or emit bills of credit, or 
 make anything but gold or silver coin a tender in payment 
 of debts, or pass any bill of attainder, or ex post facto 
 laws, or laws altering or impairing the obligation of con- 
 tracts, or grant letters of marque and reprisal, or enter 
 into any treaty, alliance or confederation, or grant any title 
 of nobility." 
 
 On September 14, 1787, " Col. Mason moved to strike 
 out from the clause ' no bill of attainder, nor any ex post 
 facto law, shall be passed,' the words ' nor any ex post 
 facto law.' He thought it not sufficiently clear that the 
 prohibition meant by this phrase was limited to cases of a 
 criminal nature ; and no legislature ever did or can alto- 
 gether avoid them in civil cases. 
 
 "Mr. Gerry seconded the motion; but with a view to 
 extend the prohibition to ' civil cases,' which he thought 
 ought to be done. 
 
 " On the question, all the States were, no." 
 
 Later in the same day, but on whose motion does not ap- 
 pear, the order of the clauses in sect. 10 of Aii;. I., which 
 we have quoted, was changed (the word " altering" being 
 ex|3unged from the " obligation " clause) so as to read, " No 
 State * * * shall pass * * * any * * * or 
 law impairing the obligation of contracts," etc. 
 
 "Mr. Gerry entered into observations inculcating the 
 importance of public faith, and the propriety of the restraint 
 put on the States from impairing the obligation of con- 
 tracts, alleging that Congress ought to be laid under the 
 like prohibitions. He made a motion to that effect. He 
 was not seconded." 
 
 The peculiar phraseology of the ' ' obligation ' ' clause has 
 for many years been ascribed to Judge Wilson.^ 
 
 ^ Our attention has been called by Hon. Clement Hugh Hill, the author of 
 the article on the Dartmouth College case in the January number, 1874, of
 
 DEBATES IN THE CONVENTION. 217 
 
 We are not aware that he ever made any public claim to 
 it ; but it has his distinctive ' ' ear-marks. ' ' That he moulded 
 the phrase is hardly an open question, though it undoubt- 
 edly passed under the eye of Madison and Gouverneur 
 Morris. Madison, manifestly referring to the evils which 
 sect. 10, Art. I., was intended to prevent, said: "In the 
 internal administration of the States, a violation of con- 
 tracts had become familiar, in the form of depreciated paper 
 made a legal tender, of property substituted for money, of 
 instalment laws, and of the occlusions of the courts of jus- 
 tice, although evident that all such interferences affected the 
 rights of other States, relatively creditors, as well as citizens 
 creditors, within the State." That Mr. Madison here re- 
 ferred to executory contracts is too obvious for comment. 
 The great knowledge of Mr. Madison, his experience, 
 diplomatic tact, and judicial temper, made him the central 
 figure in that Amphictyonic council of great men ; though 
 he lacked the slow but powerful intellect of Ellsworth, the 
 great legal learning of Luther Martin, and the commanding 
 genius of Hamilton. 
 
 Chief Justice Ellsworth was a leading member of the 
 Federal Convention. On September 26, 1787, he and his 
 colleague, Sherman, addressed a communication in the na- 
 ture of a report to the governor of Connecticut. They said : 
 " The restraint on the Legislatures of the several States, 
 * * * impairing the obligation of contracts by ex post 
 
 the American Law Review, to the following quotation from the argument of 
 Mr. Hunter, in Sturges v. Crowninshield : " The judges of the State courts and 
 of this court have confessed that there is in these words, ' impairing the obli- 
 gation of contracts,' an inherent obscurity. Surely then, here, if anywhere, 
 the maxim must apply, Semper in obseuris quod 7ni)iimum est sequhnur. They 
 are not taken from the English common law, or used as a classical or technical 
 term of our jurisprudence in any book of authority. No one will pretend that 
 these words are drawn from any English statute, or from the States' statutes 
 before the adoption of the Constitution. "Were they, then, furnished from that 
 great treasury and reservoir of rational jurisprudence, the Roman law? "We 
 are inclined to believe this. The tradition is that Mr. Justice "Wilson, who was 
 a member of the Convention, and a Scottish lawyer, and learned in the civil 
 law, was the author of this phrase." (4 "Wheat. 151.) Mr. Hunter was from 
 Rhode Island, an eminent lawyer, familiar with the history of the times, and 
 of the public men who framed the Constitution.
 
 218 DARTMOUTH COLLEGE CAUSES. 
 
 facto laws, was thought necessary as a security to commerce 
 in which the interest of foreigners as well as the interests of 
 citizens of different States may be affected." 
 
 The phraseology used shows that they understood this 
 clause to mean in civil causes what the ex jpost facto clause 
 meant in criminal ones. 
 
 Charles Glidden Haines, in his argument at the Febru- 
 ary term, 1824, before the Supreme Court of the United 
 States, in Ogden v. Saunders, said: "In consulting the 
 debates of the Virginia Convention, convened at Eichmond 
 in June, 1788, * * * for the purpose of deliberating 
 on the expediency of adopting the Constitution, we find that 
 the section which relates to the obligation of contracts was 
 discussed by the great men of that public body. Patrick 
 Henry, George Mason, George Nicholas, James Madison, 
 and Governor Kandolph participated in the debates to which 
 the section gave rise, and the three former considered the 
 expressions ex post facto laws, and laius impairing the ob- 
 ligations of contracts as meaning the same thing, and as re- 
 lating to the redemption of Continental money and calcu- 
 lated to gratify the cupidity of speculation. Mr. Madison 
 corrected these erroneous impressions ; and Governor Ran- 
 dolph, after he had correctly defined the legal and technical 
 meaning of the term ex post facto laws, as presented by the 
 common-law writers, also speaks of the wholesome prohibi- 
 tion relating to contracts. ' lam,' says he, ' a warm friend 
 to the prohibition, because it must be promotive of virtue 
 and justice, and preventive of injustice and fraud. If we 
 take a review of the calamities which have befallen our rep- 
 utation as a people, we will find they have been produced 
 by frequent interferences of the State Legislatures with 
 private contracts. If you inspect the great corner-stone of 
 Republicanism, you ^dll find it to be justice and honor.' 
 
 " Luther Martin, whose vigor of intellect and profound re- 
 searches are justly appreciated by those who knew him in 
 the days of his pride and strength, acted a distinguished
 
 HAINES LUTHER MARTIN. 219 
 
 part in this country when the Constitution was framed, and 
 he has told us what was intended by the Convention of 1787, 
 of which he was a member from the State of Maryland, by 
 the insertion of this prohibition. After speaking of the 
 disability on the part of the States to emit bills of 
 credit, he makes these remarks : ' The same section also 
 puts it out of the power of the States to make anything but 
 gold and silver coin a tender in payment of debts, or to 
 pass any laws impairing the obligation of contracts.' 'I 
 considered,' continues he, ' that there might be times of 
 such great public calamities and distress, and of such ex- 
 treme scarcity of specie as should render it the duty of a 
 government, for the preservation of even the most valuable 
 part of its citizens, in some measure to interfere in their 
 favor by passing laws totally or partially stopping the courts 
 of justice, or authorizing the debtor to pay by instalments, 
 or by delivering up his property to his creditors, at a rea- 
 sonable and honest valuation. The times have been such as 
 to render regulations of this kind necessary in most or all 
 of the States, to prevent the wealthy creditor and the 
 monied man from totally destroying the poor though even 
 industrious debtor. Such times may again arrive. I there- 
 fore voted against depriving the States of this power, — a 
 power which I am confident they ought to possess, but 
 which I admit ought only to be exercised on very important 
 and urgent occasions.' So spoke this efficient member of 
 the Convention in his communication to the Lefidslature of 
 Maryland. 
 
 ' ' With the correctness or error of his opinions the court 
 has no concern ; but when he expressly points to the ob- 
 jects which it was intended to accomplish by a specific 
 section of the Constitution, and when he makes his exposi- 
 tions fresh from the hall of the Convention itself, and details 
 the evils to be remedied, great respect and deference are 
 due to his disclosures to the Legislature of the State from 
 which he was a delegate."
 
 220 DARTMOUTH COLLEGE CAUSES. 
 
 Judge Wilson was a Scotchman. He was educated at 
 Edinburgh and Glasgow. When about twenty-five years 
 old, he emigrated to Philadelphia, and afterwards lived in 
 the States of Pennsylvania and Maryland. He soon became 
 a legal celebrity. For six out of the twelve years of its 
 existence, he was a member of the Continental Congress. 
 He was a man of superior abilities, and possessed great 
 learning. 
 
 He was not only a master of the civil law, but of the 
 French and Scotch law, which had the civil law for its basis, 
 and of the common law as well. He was in favor of a strong 
 central government, as was his colleague, Gouverneur Mor- 
 ris, and Hamilton ; but they differed very much in their 
 views. Hamilton regarded the British government as the 
 proper model, but Judge Wilson did not ; he proposed to 
 build anew from the foundation, while preserving the auton- 
 omy of the States. 
 
 In his lectures to the law school upon the " general prin- 
 ciples of law and obligation," etc., prepared within a year 
 after the Federal Constitution went into operation, he criti- 
 cises Blackstone's definition of municipal law and its *' ob- 
 ligation," with a severity scarcely equalled by Austin and 
 his admirers, at a later day, upon other points. With Wil- 
 son, all forms of government and all laws were " con- 
 tracts." He says: "We find that an act which, consid- 
 ered indistinctly and dignified by the name of law, requires 
 the whole supreme power of a nation to give it birth, is, 
 when viewed more closely and analyzed into the compo- 
 nent parts of its authority, properly arranged under the 
 class of contracts. It is a contract to which there are three 
 parties ; those who constitute one of the three parties, not 
 acting even in public characters." *' The plain and simple 
 analysis which I have given of the nature and obligation of 
 acts of Parliament, is evidently countenanced by the ex- 
 pressive legal language of my Lord Hale. It is supjiorted 
 and confirmed by the very respectable authority of my Lord
 
 JUDGE WILSON THE CIVIL LAW. 221 
 
 Hardwicke. 'The binding force,' — I use his very words 
 as they are reported, — ' the binding force of these acts of 
 Parliament arises from,' "etc. " Sir William Blackstone 
 tells us that the original of the obligation which a compact 
 carries with it is different from that of a law. The original 
 of the obligation of a compact we know to be consent : the 
 original of an act of Parliament we have traced minutely to 
 the very same source." " In the eye of the common law, 
 marriage appears in no other light than that of a civil con- 
 tract ; and to this contract the agreement of the parties, the 
 essence of every rational contract, is indispensably re- 
 quired." In his lectures, he says of the common law : *' It 
 prescribes the manner and the ohligation of contracts; it 
 establishes the rules by which contracts, wills, deeds, and 
 even acts of Parliament are interpreted." (1 Wilson's 
 Works, 205.) The italics are ours. Unless the contrary 
 clearly appeared in the context, it would be a great stretch 
 of imagination to say that the author, by the phrase " obli- 
 gation of contracts," meant the irrevocable effect of deeds 
 or estates in fee-simple, vested by grant. The sharp con- 
 trast between these terms is enhanced (taking into consid- 
 eration his familiarity with Justinian and Domat) by his as- 
 sertion that " the common law, as it respects contracts and 
 personal j)roperty, discovers evident traces of the Roman 
 jurisprudence. * * * x suggest, merely for considera- 
 tion at present, a conjecture that many of those parts were 
 incorporated into the common law during the long period 
 of near four centuries, when the Roman jurisprudence pre- 
 dominated in England. * * * The person to whom the 
 right belonged, and the person against whom it existed, 
 were said in Roman law to be bound by an obligation, the 
 notion of an obligation being that of a tie between two par- 
 ties of such a nature as to confer on the one a power of 
 compelling by action the other to give, do, or make good 
 something. The obligation did not give any interest in a 
 thing, to get which might be the ultimate object of the pro- 
 ceeding, but only gave a means of acquiring it, or, under
 
 222 DARTMOUTH COLLEGE CAUSES. 
 
 the Praetorian system, its value." (Sandars' Justin., by 
 Hammond, 43.) "An obligation is a tie of law which 
 binds us according to the rules of our civil law to render 
 something." (Sandars' Justin. 396.) "They arise ex 
 contractu or quasi ex contractu j ex maleficio or quasi ex 
 7naleficio ."" (Sandars' Justin. 397.) 
 
 Wilson defines a State as "an artificial person : it has its 
 affairs and its interests ; it has its rules ; it has its obliga- 
 tions ; and it has its rights. It may acquire property, dis- 
 tinct from that of its members ; it may incur debts, to be 
 discharged out of the public stock, not out of the private 
 fortunes of individuals ; it may be bound by contracts, and 
 for damages arising quasi ex contractu.^ ' ' ' Smaller societies 
 may be formed within a State by a part of its members. 
 These societies also are deemed to be moral persons, but not 
 in a state of natural liberty ; their actions are cognizable by 
 the superior power of the State, and are regulated by its 
 laws. To these societies the name of corporation is gener- 
 ally appropriated," etc. He indorsed the common-law doc- 
 trine that " the king and the Parliament are corporations." 
 
 In his lecture upon corporations, he says: " It must be 
 admitted, however, that in too many instances those bodies 
 politic have, in their progress, counteracted the design of 
 their original formation. Monopoly, superstition, and igno- 
 rance have been the unnatural offspring of literary, religious, 
 and commercial corporations. This is not mentioned with 
 a view to insinuate that such establishments ought to be 
 prevented or destroyed ; I mean only to intimate that they 
 should be erected with caution, and inspected with care." 
 (2 Sandars' Justin. 226.) Had Judge Wilson drawn his 
 inspiration from the French jurists, it would have been with 
 the same result. 
 
 Pothier commenced his great work when Wilson was six 
 years old, and died in 1772. He says : " The term obliga- 
 tion has two significations. In its most extensive significa- 
 tion, lato sensu, it is synonymous with the term duty, and 
 comprehends imperfect as well as perfect obligations."
 
 POTHIER WILSON MORRIS. 223 
 
 ** The term obligation, in a sense more proper and less 
 extensive, comprehends only perfect obligations, which are 
 called also personal engagements, giving to him with whom 
 they are contracted the right of requiring the performance 
 of them ; and it is of this kind of obligation that we mean 
 to speak in this treatise." The frequent use of this term 
 by Judge Wilson, in both senses, shows how thoroughly he 
 understood its meaning. 
 
 If Wilson and Morris failed to comprehend the full bear- 
 ing of this clause upon the power of legislatures over cor- 
 porations, it is safe to assume that no one in or outside of 
 the Convention did. 
 
 They had special reasons for examining it with care. In 
 1785 they were counsel for, and argued the great cause of, 
 the Bank of North America, then pending before the Legis- 
 lature of Pennsylvania. In that argument, Wilson said : 
 * ' I am far from opposing the legislative authority of the 
 State, but it must be observed that, according to the prac- 
 tice of the Legislature, public acts of very different kinds are 
 drawn and promulgated under the same form. A law to 
 vest or confirm an estate in an individual, a law to incorpo- 
 rate a congregation or other society, a law respecting the 
 rights and properties of all the citizens of the State, aro 
 all passed in the same manner, are all clothed in the 
 same dress of legislative formality, and are all equallj- 
 acts of the representatives of the freemen of the Common- 
 wealth. 
 
 " But surely it will not be pretended that after laws of 
 those different kinds are passed, the Legislature possesses 
 over each the same discretionary power of repeal. * * * 
 Still more different is the case with regard to a law by 
 which an estate is vested or confirmed in an individual : if 
 in this case the Legislature may, at discretion, and without 
 any reason assigned, devest or destroy his estate, then a 
 person seized of an estate in fee-simple, under legislative 
 sanction, is in truth nothing more than a solemn tenant at
 
 224 DARTMOUTH COLLEGE CAUSES. 
 
 y^-^Y[ ! * * * Xo receive the legislative stamp of sta- 
 bility and permanency, acts of incorporation are applied for 
 from the Legislature. If these acts may be repealed with- 
 out notice, without accusation, without hearing, without 
 proof, without forfeiture ; where is the stamp of their 
 stability? " (3 Wilson's Works, 414, 415.) 
 
 Morris said : ' ' They know that the boasted omnipotence 
 of legislative authority is but a jingle of words ; in the literal 
 meaning it is impious. And whatever interpretation lawyers 
 may give, freemen must feel it to be absurd and unconstitu- 
 tional. Absurd, because laws cannot alter the nature of 
 things ; unconstitutional, because the Constitution is no more 
 if it can be changed by the Legislature. A law was once 
 passed in New Jersey which the judges pronounced to be un- 
 constitutional, and therefore void. Surely no good citizen 
 can wish to see this point decided in the tribunals of Pennsyl- 
 vania. Such power in judges is dangerous ; but unless it 
 somewhere exists, the time employed in framing a bill of 
 rights and form of government was merely thrown away. 
 
 ' ' The doubt which arises on this occasion as to the extent 
 of your authority is not founded on the charter granted by 
 Congress ; but, supposing the incoi'p oration of the bank to 
 have been the same in its origin as that of a church, we ask 
 whether the existence and the rights acquired by law can be 
 destroyed by law. Negroes have by law acquired the rights 
 of citizens ; would a subsequent law take that right away? 
 It is not true that the right to give involves the right to 
 take. A father, for instance, has no power over the life of 
 his child ; nor can a felon or traitor, pardoned by act of 
 grace, be by repeal of that act condemned and executed. 
 Should an act be passed to cancel the public debts, would 
 that act be valid ? Where an estate has been granted by law, 
 can it be revoked by a subsequent law? Could the lands 
 forfeited and sold be resumed, and conveyed to the original 
 owners ? Many such questions might be put, and a judicial 
 decision, either affirmative or negative, would be incon-
 
 WILSON AUSTIN. 225 
 
 venient and dangerous. Look, then, to the end, ere jou 
 commence the labor." (3 Life of Morris, 438, 439.) 
 
 Li the Convention of Virginia, of which he was a member, 
 which ratified the Federal Constitution, Judge Marshall, 
 upon grave consideration, informed the people of Virginia 
 that though a State might sue upon a contract, it could not 
 be sued ; in other words, that, notwithstanding the State 
 suability clause, the "obligation of contracts," in a con- 
 stitutional sense, was a stick with but one end. 
 
 But in Chisholm v. Georgia, decided in 1793, which was 
 assumpsit against a State for the recovery of money. Judge 
 Wilson, after reasserting, in substance, the definition of a 
 State quoted by us from his lectures, held otherwise, saying : 
 *' A State, like a merchant, makes a contract; a dishonest 
 State, like a dishonest merchant, wilfully refuses to dis- 
 charge it ; the latter is amenable to a court of justice. 
 Upon general principles of right, shall the former, when 
 summoned to answer the fair demands of its creditor, be 
 permitted, Proteus-like, to assume a new appearance, and to 
 insult him and justice by declaring, ' I am a sovereign 
 State ? ' Surely not . " 
 
 In 1790, the law professorship was established in the Col- 
 lege of Philadelphia, and Judge Wilson was made the first 
 professor. In April, 1792, the Legislature fused that col- 
 lege in the University of Pennsylvania. Able, sensitive, and 
 tenacious as he was, if that act had violated the Constitution 
 which he was sworn to support, he certainly would have 
 discovered it, and the world would have known the fact. 
 
 " A contract is a species of agreement, the accord of two 
 wills, conventio pactum; and in an agreement there is, first 
 of all, the pollicitatio , the offer made by one party, and then 
 the acceptance by the other. When this accord of wills is 
 such that the law adds a third element, the vinculum juris, 
 or obligation, we have a contract." (Sandars' Justin., by 
 Hammond, 399.) 
 
 Mr. Austin, notwithstanding his faults, had a clear knowl-
 
 22() DARTMOUTH COLLEGE CAUSES. 
 
 edge of the civil law. He says: "In the proper sense of 
 the word, a contract is a promise, and begets only jus ad 
 rem against the promisor, — i.e., a right to an act, an endur- 
 ance, or a forbearance on his j^art." (2 Austin Jur. 239.) 
 " Obligation regards the future. An obligation to a past 
 act, or an obligation to a past forbearance, is a contradiction 
 in terms." (1 Austin Jur. 458.) "In the language of 
 the Roman law, ' contraet ' denoted, originally, a convention 
 which may he enforced by action. * * * in the lan- 
 guage of the English law, ' contract ' is a term of uncertain 
 extension. Used loosely, it is equivalent to ^convention' 
 or ' agreement.' Taken in the largest signification which 
 can be given to it correctly, it denotes a convention or 
 agreement which the courts of justice will enforce. That 
 is to say, it bears the meaning which was attached to it 
 originally by the Roman jurisconsults." (2 Austin Jur. 
 1015-16.) " The confusion of contract and conveyance by 
 elliptical or improper expression is one of the greatest 
 obstacles in the way of the student." (2 Austin Jur. 
 1006.) " I shall distinguish contracts, properly so called, 
 from certain facts or events which are styled contracts, 
 but which virtually are alienations or conveyances." (1 
 Austin Jur. 56.) "Rights in rem sometimes arise from 
 an instrument which is called a contract, and are there- 
 fore said to arise from a contract ; the instrument in these 
 cases wears a double aspect, or has a twofold efiect : to 
 one purpose it gives jiis in personam, and is a contract ; to 
 another purpose it gives jiis in rem, and is a conveyance. 
 When a so-called contract passes an estate, or, in the 
 language of the modern civilians, a right in rem, to the 
 obligor, it is to that extent not a contract, but a conveyance , 
 although it may be a contract to some other extent, and 
 considered from some other aspect. A contract is not dis- 
 tinguished from a conveyance by the mere consent of parties, 
 for that consent is evidently necessary in a conveyance as 
 Avcll as in a contract." (1 Austin Jur. 387.)
 
 AUSTIN MEANING OF THE CLAUSE. 227 
 
 *' We must see likewise whence an action arises, and it is 
 to be known that it arises from preceding obligations, like 
 a daughter from a mother. But an obligation, which is the 
 mother of an action, derives its origin and commencement 
 from some preceding cause, either from a contract or a 
 quasi contract, or a tort or a quasi tort. * * * ^^id 
 it must be known, in the first place, that an obligation is a 
 bond of law, by which we are constrained by a necessity to 
 give or to do something, as if one was tied and constrained 
 to another person for a certain thing, and that other person 
 was bound to him on the contrary for another thing. For 
 an obligation is, as it were, a counter tie, and it has four 
 forms under which it is contracted, and several vestments." 
 (2 Bracton, by Twiss, 107-9.) 
 
 An interpretation which would restrict the provision to 
 executory contracts would be much more natural and rea- 
 sonable than the other. 
 
 It seems to us from the debates in the Convention, the 
 views of Judge Wilson, and those of other eminent authori- 
 ties to which we have referred, that the framers of the Con- 
 stitution had this meaning in mind when they adopted the 
 provision. 
 
 When Trustees v. Woodward, was decided, no member of 
 the Federal Convention remained upon the bench, nor any 
 one specially familiar with its history. Neither its journal 
 nor the Madison Papers had been published. 
 
 It is apparent that the court regarded these as common 
 words, and gave them the popular interpretation, when thev 
 might as well have construed the preceding words, " bill of 
 attainder," " ex post facto,''' etc., as popular terms. 
 
 In Sturges v. Crowninshield, 4 Wheat. 197, which was 
 under consideration at the same time with the College 
 causes. Judge Marshall said: " In discussing the question 
 whether a State is prohibited from passing such a law as 
 this, our first inquiry is into the meaning of words in common 
 use. What is the obligation of a contract? and what will 
 impair it ?
 
 228 DARTMOUTH COLLEGE CAUSES. 
 
 ' ' It would seem difficult to substitute words which are 
 more intelligible, or less liable to misconstruction, than those 
 which are to be explained. * * * The words of the 
 Constitution, then, are express, and incapable of being mis- 
 understood."'' The italics are ours. 
 
 Such recklessness in assertion carries with it its own 
 comment ; and if it did not, the opinions of Livingston and 
 Johnson, the views of all candid commentators, the wide 
 differences in opinion in State and Federal courts, and the 
 innumerable questions raised, most certainly would do so.
 
 CHAPTER IX. 
 
 HOLMES, WIRT, HOPKENSON, WEBSTER— TKEIR ARGUMENTS 
 — JUDGES DIVIDED IN OPINION— PINKNEY AND THE RE- 
 ARGUMENT. 
 
 We have seen that Trustees v. Woodward was argued March 
 10, 11, and 12, 1818, by Webster, and Joseph Hopkin- 
 son of Philadelphia, for the old trustees, and by Holmes, 
 and Wirt of Virginia, for the State. Webster made the 
 opening argument for the plaintiifs, and Holmes for the de- 
 fendant. Webster was the leading counsel on one side, and 
 Holmes assumed to be on the other. Holmes pitted him- 
 self against Webster, and Hopkinson was pitted against 
 Wirt. Webster spoke nearly five, and Holmes over three 
 hours. 
 
 John Holmes was a famous kaleidoscopic politician, and 
 a power in the land in his day. He was forty-five years old 
 when he attempted to reply to Webster. He was born in 
 Massachusetts, in 1773, graduated at Brown University 
 in 1796, with Tristam Burgess, Dr. Shurtlefi", and other 
 celebrities. He came to the bar in 1799, and in September 
 of that year went into practice at Alfred, in the toA^^l of 
 Sanford, in the county of York, in that part of Massachu- 
 setts then known as the district and now as the State of 
 Maine, and which was admitted into the Union two years 
 after the argument in this case. 
 
 Massachusetts proper, with an area of some 7,800 square 
 miles, was separated from the district of Maine, which 
 comprised some 32,000 square miles, or about one-half the 
 area of all the New England States, by the south-easterly 
 point of New Hampshire. The York congi'essional dis- 
 trict, — often termed Cjni'us King's district, — bounded on 
 
 (220)
 
 230 DARTMOUTH COLLEGE CAUSES. 
 
 the west by New Hampshire, was represented from 1813 to 
 1817 by Cyrus King, a Federalist lawyer of note. Holmes 
 took to politics as naturally as ducks to water. He was 
 then a rank Federalist, representing that party in the Mas- 
 sachusetts Legislature in 1802-3, and lampooned his oppo- 
 nents with great virulence. 
 
 The Federalists had a strong majority in Massachusetts 
 })roper ; but Holmes's own town, county, and the district of 
 Maine being the other way, late in 1811 he suddenly went 
 over to the enemy, and became a red-hot advocate of the 
 national government and its war measures, was elected to 
 the House and Senate by his new friends, and served during 
 the war. In 1815 he was appointed commissioner by 
 Madison, under Art. IV. of the Treaty of Ghent. He was 
 one of the leading advocates of the separation of Maine 
 from the old Commonwealth, which eventually became a 
 party question. In June, 1816, the Legislature of Massa- 
 chusetts submitted the question of separation to the people, 
 with the proviso that if, upon the vote of September, 1816, 
 " it shall appear that a majority of five to four, at least, of 
 the votes so returned are in favor of separation, the Con- 
 vention is to proceed in forming a Constitution, and not 
 otherwise." The Convention was defeated ; but Holmes, as 
 chairman of the committee to examine the vote, etc., reported 
 that it was carried, and that the Convention should proceed 
 in forming a Constitution, which they did. This result was 
 reached by an ingenious system of political arithmetic, 
 which would have put to the blush the quota mathematics 
 of that astute and fertile genius, Provost-Marshal-General 
 Fry. To get their basis, the committee first rejected 173 
 majority against separation, upon the ground of alleged 
 technical informalities, and then reported that 22,316 
 votes were cast ; that there were 11,969 yeas, and 10,347 
 nays ; that the whole aggregate majorities of yeas in toAvns 
 and plantations were 6,031, and the whole aggregate 
 majorities of nays, 4,409 ; that, on this construction of the
 
 HOLMES HIS POLITICAL MATHEMATICS. 231 
 
 act, there was a majority of five to four, at least, in favor 
 of said district's becoming an independent State. The 
 Legislature of Massachusetts overruled this construction, 
 and disregarded the Constitution adopted by the Brunswick 
 Convention ; but a Convention was carried, and a Consti- 
 tution was adopted in 1819. Holmes w^as the chairman of 
 the committee that framed this Constitution. He was 
 elected to Congress from Cyrus King's district (King died 
 in April, 1817), in 1816 w\as reelected, and was in the 
 United States Senate from 1820 to 1833. 
 
 Holmes was not without talent. He had unbounded 
 confidence in himself, and was ahvays cool and perfectly 
 self-possessed ; he was a scheming, busy, restless, rollick- 
 ing politician ; his broad wit, sluice-word declamation, 
 and stinging repartee, with which he more than once 
 silenced John Randolph and others scarcely less noted, were 
 the delight of the crowds which gathered at, the hustings 
 and County Courts ; and his questionable stories kept every 
 country bar-room in a roar. But he was as much out of 
 place before Judge Marshall's court, and pitted against such 
 a man as Webster, as it was possible to be. Caring for little 
 else, climbing like a busy "sweep" with devious steps the 
 dirty chimney of political preferment, he had neither taste, 
 time, inclination, nor the mental qualities required to grasp, 
 prepare, and argue a cause like this. The noisy eulogist and 
 reputed ^jro/e'^e of Jefferson, he represented in politics, law, 
 and statesmanship every thing that the soul of Marshall 
 loathed. 
 
 Webster never made the mistake of many so-called great 
 men, — he never underrated the power of an opponent. 
 When he gave credit, he never erred except upon the side of 
 generosity. 
 
 In his letter to Brown, dated at Washington, March 11, 
 1818, he says: "Our case came on yesterday. I opened 
 the argument, and occupied almost the whole of the sitting 
 in stating the burden of our complaints. Mr. Holmes fol-
 
 232 DARTMOUTH COLLEGE CAUSES. 
 
 lowed & stated the following as his propositions. 1. This 
 court has no jurisdiction because the parties do not live in 
 different States (we never put the jurisdiction on that 
 ground). 2. That the grant of 1769 was not a contract, 
 but the trustees merely officers of government under the 
 king. 3. That all corporations created by the king were 
 dissolved by the Revolution. 4. That if the charter were 
 a contract, the acts do not impair it. We have heard him 
 on his three first heads. He is to take up the fourth this 
 morning. Thus far there has nothing new or formidable 
 developed. (All stuff.) 
 
 "Mr. Wirt is to follow Mr. Holmes. He is a man of 
 talents, and will no doul)t make the best of his case. 
 
 " Mr. Hopkinson is to reply, and will make up for all my 
 deficiencies, which were numerous." 
 
 In his letter of March 13, 1818, to Mason, he says : " The 
 argument in the College case terminated yesterday, having 
 occupied nearly three days. On being inquired of by de- 
 fendant' s counsel whether the court would probably give a 
 decision at this term, the chief justice answered, * that the 
 court would not treat lightly an act of the Legislature of a 
 State and the decision of a State court, and that the court 
 would not probably render any judgment at this term.' 
 The cause Avas opened on our side by me. Mr. Holmes 
 followed. His propositions, as near as I recollect, were, 
 1. No jurisdiction because both parties in same State. 2. 
 Charter of 1769 not a contract; trustees, public officers, 
 like judges, and sheriffs &c. ; College a part of government, 
 &c. 3. All corporations abolished by Revolution. 4. If 
 charter a contract, not impaired, a great kindness to old 
 trustees to send them new assistants &c. Upon the whole, 
 he gave us three hours of the merest stuff that was ever 
 uttered in a county court. Judge Bell [one of the judges 
 who had decided this cause in the State court, and for whom 
 Webster was counsel in Bullard v. Bell, then pending before 
 the Federal Supreme Court] was present, and had the
 
 HOLMES ESTIMATE BY WEBSTER AND DAGGETT. 233 
 
 pleasure of hearing him, but could not stay out his speech." 
 (1 Webster's Priv. Cor. 275.) 
 
 In his letter to Judge Smith, written the next day, Webster 
 says : " My talk occupied nearly a whole sitting. Holmes 
 followed'; he spoke three or four hours. * * * Holmes 
 did not make a figure. I had a malicious joy in seeing 
 Bell [the New Hampshire judge] sit by to hear him, while 
 everybody was grinning at the folly he uttered. Bell could 
 not stand it. He seized his hat and went off.'"' ( 1 Webster's 
 Priv. Cor. 277.) 
 
 Judge Daggett, a member of the United States Senate 
 from Connecticut, then fift3'"-four years of age, one of the 
 foremost lawyers of his day, afterwards chief justice of the 
 Supreme Court of that State, and one of the greatest jurists 
 that ever honored that position, in his letter of March 18, 
 1818, to Mason, says: "Tom Paine, speaking, or rather 
 writing of some one, says : ♦ He went up like a rocket, and 
 came down like a stick.' That is evidently true of a certain 
 great man from Cyrus King's district. He has attempted 
 as a politician so much wisdom, and such a desire to be ad- 
 mu'ed by everybody , that he has ceased for weeks to be 
 regarded by anybody. His friends, however, still uphold 
 him as a lawyer, but in the Dartmouth College Cause, he 
 sunk lower at the bar than he had in the hall of legis- 
 lature. The opinion was entirely universal that Webster 
 rose superior even to Wirt (though it is said that he ap- 
 peared very well), and infinitely so to Holmes." (Mason's 
 Mem. 199.) 
 
 Webster's correspondence shows that he was promptly 
 advised of Pinkney's connection with these causes, and the 
 general ground to be taken by him in argument. 
 
 Hopkinson,in his letter to Webster, of November 17, 
 1818, says, referring to a conversation with Pinkney about 
 this cause: "He says, 'Mr. Wirt was not strong enough 
 for it, has not back enough.' There is a wonderful degree 
 of harmony among our opponents in this case. You may
 
 234 DARTMOUTH COLLEGE CAUSES. 
 
 remember how Wirt and Holmes thought and spoke of each 
 other." (Mason's Mem. 289.) It hardly needed this letter 
 to show the light in which Wirt regarded Holmes. If 
 further comment were necessary upon a performance that 
 could drive a gi"ave and patient judge like Bell out of the 
 court-room in disgust, it might be found in some of the 
 legal positions taken by Holmes. 
 
 Wirt was a different man. He was a year the senior of 
 Holmes ; possessed an ardent, social nature, and a vivid im- 
 agination ; had genius and culture ; was an able lawyer and 
 a brilliant advocate of the red-baize school which went out 
 of vogue after the advent of Webster : but he was placed 
 second to Holmes, and could not fail to appreciate the fact ; 
 was crowded with business, unfamiliar with the local law and 
 the history and details of the case, inadequately prepared, 
 and had a great aversion to New England men and matters. 
 
 He had a large practice ; was nominated for attorney- 
 general of the United States on November 13, 1817, and 
 was confirmed on December 15, 1817. He purchased an 
 establishment at Washington, removed there and assumed 
 the duties of his office in January, 1818, and was pushed for 
 weeks to the very verge of endurance in attempting to give 
 proper attention to his practice, and trying to bring order 
 out of the chaos which he found in his new office. 
 
 In his letter of January 21, 1818, to Judge Carr, he says : 
 "It is late at night — the fag-end of a hard day's work. 
 My eyes, hand and mind all tired. * * * Xhe office, 
 I find, is no sinecure. I have been up till midnight, at 
 Avork, every night, and still have my hands full. * * * 
 I have much to say to you about this place, and those who 
 are around me ; but I am now worn out. We must defer all 
 this till we meet, for I am extremely fatigued. * * * 
 The Supreme Court is approaching. It will half kill you 
 to hear that it will find me unprepared ; but I shall con- 
 trive ways and means to keep my professional head, at least, 
 above water. As to any great figure, I cannot promise it, in
 
 WIRT HIS ARGUMENT. 235 
 
 the bustle in which I am now engaged." (2 Kennedy's 
 Mem. Wirt, 67, 68.) 
 
 In his letter of May 6, 1818, to Carr, he says : "I am, 
 at this present, in a furious hurry. * * * Judge of the 
 pressure on me when I tell you that I had, this morning, 
 to rise before five o'clock to business, and shall have so to 
 do, I expect, till the meeting of the Supreme Court." (2 
 Kennedy's Mem. Wirt, 69.) 
 
 Webster, in his letter to Mason, of March 13, 1818, says : 
 " Wirt followed. He is a good deal of a lawyer, and has 
 very quick perceptions and handsome power of argument, 
 but he seemed to treat this case as if his side could furnish 
 nothing but declamation. He undertook to make out one 
 legal point on which he rested his argument, namely, that 
 Dr. Wheelock was not founder. In this he was, I thought, 
 completely unsuccessful. He abandoned his first point, 
 recited some foolish opinions of Virginians on the third. 
 * * * He made an apology for himself, that he had not 
 had time to study the case, and had hardly thought of it till 
 it ivas called on.'' (1 Webster's Priv. Cor. 275, 276.) 
 
 In his letter of March 14, 1818, to Judge Smith, Webster 
 says : " Wirt has talents, is a competent lawyer, and argues 
 a good cause well. In this case he said more nonsensical 
 things than became him.'^ (1 Webster's Priv. Cor. 277.) 
 The italics are ours. 
 
 No man could make a good legal argument in such a 
 cause who "had hardly thought of it." Wirt was as 
 guileless as a child when he made this statement ; he simply 
 told the truth. The history of the incident referred to by 
 Webster shows this. Wirt was arguing that Wheelock was. 
 not the " founder," etc. Webster had his attention called 
 to the clause in the charter reciting that Wheelock was the 
 *' founder," etc. Wirt had no knowledge that such a clause 
 was in the charter, and knowing nothing of the history of 
 Moor's Charity-School, was " dumbfounded," and, as Web- 
 ster says, "abandoned" the "point." Such a circum-
 
 236 DARTMOUTH COLLEGE CAUSES. 
 
 stance could not fail to leave its impress on the minds of the 
 court, and to it we undoubtedly owe some of the language 
 of the opinions. 
 
 Unable, from his situation, to give the judges any thing 
 new in the way of an argument, he gave them a most bril- 
 liant and vehement declamation, arrayed in all the gorgeous 
 colors of the rainbow. Wirt commenced his speech in the 
 afternoon of March 11, 1818. Whether in consequence of 
 Webster's disabling him in the tilt about the "founder," 
 etc., or his vehemence, or, what is more probable, from 
 both, does not distinctly appear, but contemporary accounts 
 show that he utterly broke down, lost the control of his 
 voice, had to apologize to the court for his inability to go 
 on, and asked their indulgence till the next day, when he 
 concluded. All knew that Wirt was a favorite at Monti- 
 cello, that he was the right hand of Jefferson in Burr's 
 trial, and had been his private counsel for years. 
 
 Hopkinson replied to him on March 12, 1818. He 
 was forty-eight years of age, and an eminent lawyer. He 
 was admitted to the bar in 1791, and was a member of 
 Congi'ess at the time of the argument. Webster, in his 
 letter to Brown, of March 13, 1818, says: "Mr. Hop- 
 kinson understood every part of the cause, and in his 
 argument did it great justice. No new \'iew was suggested 
 on the other side." (1 Webster's Priv. Cor. 274.) In his 
 letter the same day to Mason, Webster says: " Mr. Hop- 
 kinson made a most satisfactory reply, keeping to the law, 
 and not following Holmes and Wirt into the fields of dec- 
 lamation and fine speaking." ( 1 Webster's Priv. Cor. 276.) 
 In his letter of March 14, 1818, to Judge Smith, Webster 
 says: "Hopkinson in concluding confined himself strictly 
 to repl3dng, and acquitted himself with ability." (1 Web- 
 ster's Priv. Cor. 277.) The most adverse critics conceded 
 that Mr. Hopkinson argued the cause " handsomely." 
 
 And Webster, what can we say of him ! In his simple 
 and unaffected intellectual greatness, he towered as much
 
 HOPKiNSOx — Webster's greatness. 237 
 
 above the mass of mankind as Mount Hood above the smil- 
 ing valley of the Willamette, the foot-hills, and the snowy 
 peaks which encircle it. He was one of those great men 
 who are, as it were, the landmarks of ages ; he was endowed 
 with a majestic presence ; those great, deep, black eyes, 
 with their intense coal-fire glow, which had come down to 
 him on the stream of generations from Stephen Bachiler, 
 seemed as if they searched alike the seen and the unseen 
 world ; his wonderful voice, which has thrilled the very 
 marrow in our bones even when the end of the mighty old 
 man was nigh, was the attribute of one born to convince 
 and conquer. All these were makeweights enough to be 
 thrown into the scale on one side ; but others were added. 
 We have seen that Mason's argument occupied forty-three, 
 and Webster's forty-six, pages in Farrar's report. Both 
 were slow speakers, and uttered about the same number of 
 words in a given time. Mason spoke two hours, and Web- 
 ster, at Washington, nearly five. Webster's memory was 
 such that he could have written out his argument nearly 
 verbatim had he chosen. Something must be allowed for 
 the peroration ; and something, perhaps, for condensation, 
 though Webster generally condensed his speeches by the 
 preparation and thought he gave them before their delivery. 
 Making all due allowance, more than an hour was devoted 
 to something yfhxch., Mr. Webster informs us, was " left out." 
 Wliat was it? No report of it exists.^ We only know its 
 drift. In adroit but cultured phrase he pressed the whole 
 political aspect of the case upon the attention of the court. 
 He commented W'ith warmth and severity upon the course 
 of the State, and the revolution which the "Jacobins " had 
 wrought in its policy for political purposes ; asserted that 
 
 1 "While the particular institution, the fate of which was at stake in the 
 cause, was one which the strongest sympathies of his youth and the fullest 
 convictions of his manhood stimulated him to preserve from the control of 
 party politics and the mischief of political legislation. Inspired by these 
 motives, he opened the causes, in the argument of which all that is preserved 
 is contained in the fifth volume of this work ; a report which gives us only the 
 legal reasoning of a speech that was undoubtedly as remarkable for its beauty, 
 pathos, and eloquence, as it was for its logical power and its wealth of histor- 
 ical and juridical illustration." (1 Curtis's Life of Webster, 1G7.)
 
 238 DARTMOUTH COLLEGE CAUSES. 
 
 the Legislature, which was the creature of this " Jacobin " 
 irruption, had invaded the sacred rights of property by the 
 passage of these acts, in direct violation of the State Con- 
 stitution and the fundamental principles of our government, 
 had overturned the judiciary of the State, and created a 
 new one to subserve its purposes ; and declared there was 
 no protection unless afforded by the Federal tribunals. 
 
 The followins: extract from Mr. Webster's letter to 
 Mason, dated June 28, 1818, shows how he felt in relation 
 to the New Hampshire court and Legislature: "I found 
 that the College people thought that you made a very strong 
 impression in their cause. It would be a queer thing if Gov. 
 P.'s court should refuse to execute his laws. I am afraid 
 there is no great hope of their disobedience to the powers that 
 made them." (Mason Papers ; Harvey's Webster Papers.) 
 
 We have already seen the real reason why thirty pages, 
 three-fourths of his entire legal argument, in Farrar's report 
 were devoted to points not before the court. 
 
 In his letter to Judge Smith of March 14, 1818, Webster 
 says : *' We finished with the third day. The next morn- 
 ing, yesterday, the chief justice told us the court had con- 
 ferred ; that there were different opinions, and that some 
 judges had not formed opinions ; consequently the cause 
 must be continued." (1 Webster's Priv. Cor. 277.) 
 
 The account in the JVational Intelligencer is as follows : — 
 
 " On Friday morning, [March 13, 1818,] the chief justice ob- 
 served that the judges had conferred on the cause between the 
 Trustees of Dartmouth College and William H. Woodward. Some 
 of the judges have not come to an opinion on the case. Those of 
 the judges who have formed opinions do not agree. The cause 
 must therefore be continued until the next term. ' ' 
 
 There are several accounts in private letters and public 
 prints, but they are nearly all of the same import. 
 
 In the letter of Webster just quoted, he says : "I have 
 no accurate knowledge of the manner in which the judges 
 ;ire divided. The chief and Washington, I have no doubt.
 
 JUDGES DISAGREE CAUSE CONTINUED. 239 
 
 are with us. Duvall and Todd perhaps against us ; the other 
 three holding up. I cannot much doubt but that Story will 
 be with us in the end, and I think we have much more than 
 an even chance for one of the others." The italics are ours. 
 
 The guarded language of Webster, the allusion to Judges 
 Johnson and Livingston, and the implication in the pecu- 
 liar reference to Judge Story, must be read in the light 
 of tradition and history to be fully appreciated. 
 
 Story was understood to be a Wheelock man before the 
 passage of the act in question. He was the confidant, and 
 apparently the adviser, of Governor Plumer, and the friend 
 of Richardson. As before stated. Governor Plumer, at the 
 first meeting after the passage of the act, made Story and 
 his neighbor and confidential friend overseers of the Uni- 
 versity. 
 
 The bitterness felt towards him by the old trustees and 
 their adherents crops out in Hopkinson's letter to Marsh, 
 hereafter quoted. It has long been an open secret with a 
 few that Story's first opinion was adverse to the old trus- 
 tees. This gradually cropped out in lectures, addresses, 
 and the like, and in some of the legal journals of our day. 
 We have seen that the essential facts of the case were as 
 well understood by the leading minds in New England two 
 years before as two years after the decision ; and so of the 
 general grounds taken by both sides. The question was au 
 interesting and important one, constantly mooted in all 
 legal, religious, and political circles. The tradition is, that 
 Judge Story, at an early day, carefully examined the ques- 
 tion with his characteristic zeal and indefatigable research, 
 and arrived at the same result reached by his friend Chief 
 Justice Richardson ; that he communicated this fact semi- 
 confidentially to his friend Ichabod Bartlett, one of the 
 counsel for the State, from Avhom in an impalpable form, in 
 the same way, it dripped into the narrow circle of Wheelock 
 and his special friends, — or, as Webster termed them, the 
 " University people." The authorities for this arc Bartlett, 
 Webster, and Choate. Webster, referring to this fact and
 
 240 DARTMOUTH COLLEGE CAUSES. 
 
 the final decision, as the anecdote is related by Mr. Choate, 
 said to him : ' ' Bartlett and the University people were 
 dumbfounded, thunderstruck, when they found that Story 
 had gone against them." It is no discredit to Story that 
 he changed his opinion, but the contrary ; for it is the first 
 and last, the highest and holiest, duty of ever judge to be 
 risht : but it should have made him more charitable than he 
 sometimes seemed toward those who felt that his first opinion 
 was the soundest. 
 
 What Mr. Webster says of Bullard v. Bell, etc., is an illus- 
 tration of the accuracy of his knowledge of the inner work- 
 ings of the Supreme Court, and the position of its individual 
 judges. In his letter to Mason, of February 15, 1819, he 
 says : "In Mr. Bell's case, Mr. Pinkney was near two hours 
 in opening, and full four in the close. In that case we have 
 no judgment yet. I think some impression was made on 
 our side, and I have hopes of the issue, but know nothing 
 certain." (Mason's Mem. 218.) In his letter to Mason, of 
 February 23, 1819, he says: "In Judge Bell's case, the 
 event is exceedingly doubtful. My belief is, there is a 
 division on the bench. You may take it for true, at pres- 
 ent, that Ch. J., L. and J. [Marshall, Livingston, and John- 
 son] are m favor of Bell; W., D. and S., [Washington, 
 Duvall, and Story] contra. It is not worth while to men- 
 tion this, even to Mr. Bell. It is possible that further 
 reflection may bring a majority to think alike, but I am fear- 
 ful it must stand over and be argued again before Todd." 
 (Mason's Mem. 221, 222.) In his letter to Mason, of Feb- 
 ruary 15, 1819, he says : " The question is before the court, 
 whether the State Bankrupt Laws [Sturges v. Crownin- 
 shield, 4- Wheat. 122] are valid. The general opinion is 
 that the six judges now here will be equally divided on the 
 point. I confess, however, I have a strong suspicion there 
 will be an opinion, and that that opinion will be against the 
 State laws." (Mason's Mem. 219.) The result in these 
 as well as other causes which might be named shows that 
 Webster knew whereof he spoke. Indeed, in those days.
 
 STORY WIRT PINKNEY. 241 
 
 judges were uot so chary as respects what transpired in 
 consultation as they have since been reputed to be. 
 
 Wirt, in his letter to Judge Carr, of March 24, 1817, says : 
 " In relation to the fate of the Washington cause, it is not 
 decided. The court thought the cause with me on the evi- 
 dence, on which the argument turned; but being an admi- 
 rality case, they have, according to the practice of that 
 court, indulged the opposite party with farther proof. So 
 that it is possible we shall have another heat at it next 
 winter. Judge Johnson, of the Supreme Court, told me 
 here the other day that my client would certainly recover 
 the cargo (which is infinitely the most valuable part of the 
 subject), and as for the ship, if our adversary did not alter 
 the cause most materially by his farther proof (which it was 
 not believed he could do), we should get that, too." (2 
 Kennedy's Mem. Wirt, 21, 22.) 
 
 We have already seen that after the arguments were 
 closed, and after he knew that the judges were divided in 
 opinion, Webster insisted on pressing the other causes 
 through the Circuit Court up to the Supreme Court. 
 
 From the facts already shown may be gathered some of 
 the reasons why the personal friends of Wheelock, late in 
 1818, committed the fate of these causes to the great 
 Federal lawyer, William Pinkney. 
 
 In his letter of November 9, 1818, to Mi*. Brown, Webster 
 says : "I received yours yesterday. It will not be neces- 
 sary to decide on the subject of other counsel until I see 
 you. You do uot appear to apprehend my reasons exactl}'-, 
 and I can explain them better ore tenus; suffice it to say, at 
 present, that, although if nothing should be necessary in the 
 way of argument but a reply, Mr. Hopkinson or myself 
 might do that, yet if it should be necessary to go over the 
 whole ground again, some new hand must come into the 
 cause. My own impression is to apply, in case of need, to 
 some gentleman there on the spot. Let this rest till Janu- 
 ary. * * * I am not certain that a new argument will 
 
 16
 
 242 DARTMOUTPI COLLEGE CAUSES. 
 
 be ordered, and am still more doubtful whether a new open- 
 ing on our side will be called for. But this is possible, and 
 if so, some gentleman must repeat our view, and add what 
 he or we may have obtained new. This event or course of 
 things is not probable, but possible." (1 Webster's Priv. 
 Cor. 287,288.) 
 
 In Mr. Hopkinson's letter to Webster, of November 17, 
 1818, he says: "On my arrival here [Washington] 1 
 received your letter of the 9th instant, just as I was about 
 to write to you on the same subject. In my passage through 
 Baltimore, I fell in with Pinkney, who told me he was 
 engaged in the cause by the present University, and that he 
 is desirous to argue it, if the court will let him. * * * 
 On recei^dng this information from Mr. Pinkney, I seriously 
 reflected upon the course it would be proper for us to take ; 
 and I assure you most truly, I decided precisely in favor of 
 that suggested by you. It cannot be expected we shall 
 repeat our argument merely to enable Mr. Pinkney to make 
 a speech, or that a cause shall be reargued because, after the 
 argument has been concluded, and the court has the case 
 under advisement, either party may choose to employ new 
 counsel. I think if the court consents to hear Mr. Pinkney, 
 it will be a great stretch of complaisance, and that we should 
 not give our consent to any such proceeding ; but if Mr. 
 Pinkney, on his own application, is permitted to speak we 
 should claim our right of reply. The court cannot want to 
 have our argument repeated ; and jthey will hardly require 
 us to do it for the accommodation of Mr. Pinkney." 
 (1 Webster's Priv. Cor. 288, 289.) 
 
 Judge Story, in his letter to the reporter (Wheaton), of 
 December 9, 1818, says : " The next term of the Supreme 
 Court will probably be the most interesting ever known. 
 Several gi"eat constitutional questions, the constitutionality 
 of the insolvent laws, of taxing the Bank of the United 
 States, and of the Dartmouth College new charter, will 
 probably be splendidly argued. Mr. Pinkney is engaged
 
 PINKNEY KEARGUMENT PEOPOSED. 243 
 
 in these and in several otlier very important questions sent 
 from my circuit." (Life of Story.) 
 
 Webster, in his letter to Mason, of December 12, 1818, 
 says : "I learn that Mr. Piukney means to put our College 
 case on the ground that all the power of Parliament belongs 
 to the N. H. Legislature." (Mason Papers; Harvey's 
 Webster Papers.) 
 
 Moody Kent, in his letter to Farrar, of January 31, 
 1819, says : " Upon my stating to him [Thomas W. Thomp- 
 son] that it was important the proposals [for publishing 
 Farrar' s report] should be opened immediately after the 
 decision was made known, and that it would prol^ably be 
 made known early in Feby., he said that the cause would 
 certainly be again argued — that the court would not refuse 
 to hear an argument — and that the counsel recently engaged, 
 if told that the judges had formed and drawn up their opinion, 
 & were ready to declare it, would nevertheless argue it, and 
 that the decision would not be published till the latter part 
 of March." (Farrar Papers.) 
 
 Webster, in his letter to Farrar, of February 1, 1819, 
 says : " The court met to-day, present all but Todd. Judge 
 Johnson is here, and I suppose will sit this terra notwith- 
 standing he is nominated collector. Mr. Pinkney will be in 
 town to-day, and I suppose will move for a new argument 
 in the case vs. Woodward. It is most probable, perhaps, that 
 he will succeed in that object, altho' I do not think it by any 
 means certain. Not a word has as yet fallen from any judge 
 on the cause. They keep their own counsel. All that I 
 have seen, however, looks rather favorable. I hope to be 
 relieved of further anxiety by a decision for or ag't us, in 
 five or six days. I'd not have another such cause for the 
 College plain and all its appurtenances." (Farrar Papers. ) 
 
 In Webster's letter to Mason, of February 4, 1819, two 
 days after the decision, he says : " On the other side, a sec- 
 ond argument, as you know, was expected. Dr. Perkins 
 had been a week at Baltimore conferring with Mr. Pinkney.
 
 244 DARTMOUTH COLLEGE CAUSES. 
 
 Mr. Pinkney came up on Monday. On Tuesday morning, 
 he being in court, as soon as tlie judges had taken their 
 seats, the chief justice said that in vacation the judges had 
 formed opinions in the College cause. He then immediately 
 began reading his opinion, and, of course, nothing was said 
 of a second argument." (Mason's Mem. 213.) 
 
 Webster, in his letter to Farrar, of February 9, 1819, 
 says : "I shall endeavor to get the judg't entered as of last 
 term in the case of Mr. Woodward. In the other cases I 
 hope to get a certificate which shall enable Judge Story to 
 know what to do with them in May." 
 
 In the following private letter to Judge Smith, of Feb- 
 ruary 28, 1819, which lies before us as we write, Webster 
 says : " Judgment is entered in Trustees v. Woodward as of 
 last Term, that the said Trustees do recover of the said 
 Woodward the aforesaid sum of twenty thousand dollars, so 
 found and assessed as aforesaid ; & I have in my bag a man- 
 date to the Superior Court of Judicature of the State of New 
 Hampshire to carry this judgment into execution. So much 
 for that cause & the second argument therein expected. 
 
 "As to the other causes, Messrs. Pinkney & Wirt have 
 been very much pressed by the Agents and partizans here 
 to argue one of these causes upon the ground of the new 
 facts. By the time, however, that we approached near the 
 causes they saw difficulties, and their zeal began to cool. It 
 was impossible to agree on definite facts. It was hardly 
 possible to expect any different result than had already 
 taken place from another argument without new facts. 
 Some of the opinions of the judges appeared to go so far as 
 to be decisive against them, even taking the new facts for 
 granted. At the same time we heard here the echoes of the 
 clamor in N. H, that the cause had not been heard on its 
 true facts. I called up the subject a day or two before we 
 should have reached the causes, & desired to know, from 
 the Counsel, whether it was expected to argue one of those 
 causes. This brousht on a conversation between Bench &
 
 TROUBLES BETWEEN PINKNEY AND AVIRT. 245 
 
 Bar, which finally terminated in this : that tlie causes should 
 be remanded by consent ; that Defts. might, in Circuit 
 Court, move to set aside this Verdict, if they should be so 
 advised, when the opinions of the judges in Woodward's 
 case should be read & known — I found this course would 
 he agreeable, & adopted it at once. In truth I did not want 
 a second argument here upon an assumption of facts. If I 
 do not misjudge, we shall have no difficulty in the Circuit 
 Court. We shall not, I trust, be called on to agree on any 
 more Special Verdicts. If the Defts. do not acquiesce in 
 any opinion of the judge, they must take their course by bill 
 of exceptions. 
 
 "We are not yet thro, the Bank Question. Martin has 
 been talking 3 ds — Pinkney replies to-morrow, & that 
 finishes. I set out for home next day." 
 
 We have followed the italics of Webster. 
 
 Misfortunes never come singly. It never rains but it 
 pours. As fate would have it, for nearly a year before the 
 causes were sent back to the Circuit Court, Pinkney and 
 Wirt had been on bad terms. Pinkney had no rival, as he 
 regarded it, at the bar of the Supreme Court before Web- 
 ster appeared in the College cause ; and he spared no one 
 who assumed to be a rival. Oil and water would mix as 
 soon as they, for they agreed in but one thing, and that was 
 in their estimate of Holmes. Early in 1818, difiiculties 
 arose between the two in a trial which took place in Balti- 
 more. A hostile meeting was only prevented by great 
 exertion. Judge Story, in his letter to Wheaton of Decem- 
 ber 9, 1818, from which we have quoted, says in relation to 
 this matter : "I am quite persuaded, without having heard 
 a word of the facts, that our friend Mr. Pinkney is wrong 
 in the recent disagreement with Mr. Wirt. The latter is a 
 most worthy, good-humored, spirited gentleman, of eminent 
 talents and fine accomplishments. Mr. Pinkney should not 
 undervalue him, nor seek to obtain a temporary glory by 
 robbing him of a single laurel. * * * j have the
 
 246 DARTMOUTH COLLEGE CAUSES. 
 
 highest opinion of Mi*. Pinkney, who is truly princeps inter 
 principes. We must talk with him on this subject, and 
 make him feel he has much to lose, and nothing to gain, by 
 the course he sometimes pursues. He need not fear enter- 
 ing into competition with any advocate. All acknowledge 
 his talents and his learning." 
 
 Such a state of things, to say the least, was not eminently 
 favorable for a cordial cooperation between them. Pinkney 
 was a great favorite with the judges, and no man stood 
 higher with the court than he did ; but it is evident they 
 did not intend to hear him in these causes. If they had, 
 they would not have forestalled his motion for a reargument 
 by announcing the judgment with a single opinion when 
 nobody expected it ; or have ordered a judgment 7iunc pro 
 tunc against the dead, when it was apparent, from the 
 grounds upon which he resisted the motion, that the practi- 
 cal effect would be to drive him out of court in the other 
 causes. The reason for this course is probably to be found 
 in Story's letter to Mason, of October 6, 1819, — in which 
 he says : "I am exceedingly pleased with your argument 
 in the Dartmouth College case. I always had a desire that 
 the question should be put upon the broad basis 3'ou have 
 stated ; and it was matter of regret that we were so stinted 
 in jurisdiction in the Supreme Court, that half the argument 
 could not be met and enforced. You need not fear a com- 
 parison of your argument with any in our annals," — and 
 in his opinion in Charles River Bridge v. Warren Bridge, 11 
 Pet. 584-644, which undoubtedly represented correctly, 
 upon these points, the views of the majority of the judges 
 who sat in the College case. See also Webster's letter to 
 Mason, of April 13, 1819. (Mason's Mem. 223.) 
 
 We do not know what Pinkney might have done had these 
 causes been seasonably committed to his keeping. We do 
 know that, notwithstanding his foibles, he was a great 
 man, — an accomplished diplomatist, a great statesman, a 
 consummate orator and profound jurist, and one of the
 
 PINKNEY STORY AND WIRT's ESTIMATE. 247 
 
 purest patriots that ever breathed. He was a decided Fed- 
 eralist, but that never discolored his judgment of men, 
 measures, or parties, or obscured his sense of duty to his 
 country. He was about fifty-four years old when he at- 
 tempted to reargue this cause. He came to the bar when 
 twenty-two, and was sent to the Convention which ratified 
 the Federal Constitution when twenty-eight. He ran th* 
 gauntlet of the State offices, in the House, Senate, and 
 Council; and in 1796, Washington sent him to London as 
 commissioner under the Jay treaty, where he remained for 
 nearly eight years. In 1804, Maryland made him her 
 attorney-general; from 1806 to 1811, he was minister to 
 England, when Madison appointed him attorney-general of 
 the United States, which office he resigned in about two 
 years ; in 1815, he was a member of Congress ; from 1816 
 to 1818, he was minister to Russia and special minister to 
 Naples ; in 1819, he was elected to the United States Sen- 
 ate ; and died on February 22, 1822, from over-exertion in 
 his profession. 
 
 Even Wirt, habitually generous to others, but never just 
 to Pinkney, said, in his letter to Gilmer of May 9, 1822: 
 "Poor Pinkney! He died opportunely for his fame. It 
 could not have risen higher. * * * jj^ ^^s a great 
 man. On a set occasion, the greatest, I think, at our bar. 
 I never heard Emmet nor Wells, and therefore do not sav 
 the American bar. He was an excellent lawyer ; had very 
 great force of mind, great compass, nice discrimination, 
 strong and accurate judgment ; and for copiousness and 
 beauty of diction, was unrivalled. He is a real loss to the 
 bar. No man dared to grapple with him without the most 
 perfect preparation, and the full possession of all his 
 strength. Thus he kept the bar on the alert, and every horse 
 with his traces tight." (2 Kennedy's Mem. Wirt. 122.) 
 Judge Story, in his letter to Mr. White, of March 3, 1819, 
 says : " Mr. Pinkney rose on Monday to conclude the argu- 
 ment ; he spoke all that day and yesterday, and will probably
 
 248 DARTMOUTH COLLEGE CAUSES. 
 
 conclude to-day. I never, in my whole life, heard a greater 
 speech ; it was worth a journey from Salem to hear it ; his 
 elocution was excessively vehement, but his eloquence was 
 overwhelming. His language, his style, his figures, his 
 arguments, were most brilliant and sparkling. He spoke 
 like a great statesm.an and patriot, and a sound constitutional 
 lawyer. All the cobwebs of sophistry and metaphysics 
 about State rights and State sovereignty he brushed away 
 with a mighty besom. * * * j fgaj. -tj^at this speech 
 will never be before the public, but if it should be, it will 
 attract universal admiration. Mr. Pinkney possesses, 
 beyond any man I ever saw, the power of elegant and illus- 
 trative amplification." (Life of Story.) 
 
 The most diligent search fails to discover any trace of the 
 great argument prepared by Pinkney in the College causes.
 
 CHAPTER X. 
 
 THE CAUSE IN 1818 — DEATH OF JUDGE WOODWARD — CORKE- 
 SPONDENCE BETWEEN PARKER, WEBSTER, MARSH, KENT, 
 BROWN, AND OTHERS — THE ALBANY CONFERENCES — CON- 
 STITUTION OF NEW YORK — DECISION OF COUNCIL OF 
 REVISION — JUDGES JOHNSON, LIVINGSTON, STORY, AND 
 GOVERNOR CLINTON — ADAMS v. STOREY — COL. HAINES — 
 THE REEDSBORO' LETTER — LETTER FROM HOPKINSON TO 
 MARSH. 
 
 Weeks before Pinkney came into the cases, the machinery 
 had been devised and put in motion which was to render all 
 efforts on his part unavailing. 
 
 Mr. Webster had no occasion to trouble himself about the 
 position of Marshall and Washington, for they were with 
 him ; and quite as little about that of Duvall and Todd, for 
 they were the other way. The objective point was to con- 
 trol the action of two of the remaining three. Mr. Webster 
 knew Story's own case, Fletcher v. Peck, and that the 
 opinion of Mr. Justice Johnson in that case, prepared after 
 the most elaborate arguments and careful consideration, was 
 decisive against him in Trustees v. Woodward, whatever the 
 judge's position might be with reference to the other causes. 
 He knew Story's position and antecedents as well. 
 
 A full history of the movements to which we have referred 
 can never be written. A portion of the materials are for- 
 ever lost. 
 
 Some have gone to the paper-mill, like many of Thomp- 
 son's letters ; others, for obvious reasons, have been with- 
 held from the public eye by those who have or had them in 
 charge. Before us, as we write, lies the written statement of 
 one of the great actors in this controversy, showing that on 
 
 (249)
 
 250 DARTMOUTH COLLEGE CAUSES. 
 
 February 28, 1824, he " destroyed " " many letters to and 
 from F. Brown & D. Webster, & letters to & from J. 
 Mason, T. Farrar, M. Olcott, B. J. Gilbert, T. W. Thomp- 
 son, C. Marsh, A. Livermore, R. Fletcher," etc., relatmg 
 to this controversy. 
 
 But enough remains to show what was done, though it 
 does not disclose every step of the actors. 
 
 The fortunes of the old trustees were at their lowest ebb 
 in July, 1818. At about that time Chancellor Kent visited 
 Windsor, as before stated. The influence of Dunham, Jacob, 
 Hubbard, and others had made Windsor a University strong- 
 hold. The genial old chancellor was in the house of his 
 friends, and unbosomed himself freely. He read the 
 opinion of Chief Justice Richardson, and indorsed it. It 
 soon came to the ears of Marsh and Webster, and the fol- 
 lowers of Wheelock all knew it. It roused the combative 
 blood of Marsh ; but Webster, who best understood the 
 position of the judges in Trustees v. Woodward, was de- 
 spondent. To his chosen few he confessed that he had 
 little hopes of success in that case. 
 
 Isaac Parker, chief justice of the Supreme Court of 
 Massachusetts, was the diivoted personal and political 
 friend of Webster. In his letter of April 28, 1818, to 
 Webster, which lies before us. Judge Parker says: <'The 
 effect produced upon my mind by the argument you were 
 good enough to send me, is such as to induce me most 
 earnestly to wish that it may not only be printed, but pub- 
 lished and extensively circulated. Public sentiment has a 
 great deal to do in affairs of this sort-, and it ought to be well 
 founded. That sentiment may even reach and affect a court : 
 at least, if there be any members who wish to do right, but 
 are a little afraid, it will be a great help to know that all the 
 world expects they will do right. Besides, there is a nat- 
 ural leaning in favor of legislative power, for it is the power 
 of the people when constitutionally exercised ; but the 
 people ought to be made to know that in certain cases their
 
 TAPERS DESTROYED KENT — PARKER. 25 1 
 
 rights are above the reach of the Legislature, and thus 
 popularity may be given to a denial of legislative power. 
 In popular governments it is not onl}'^ expedient, but wise, 
 to get the people on the side of right principles ; indeed, 
 that is the only way effectually to prevent wrong. 
 
 " The argument of Richardson, Ch. Jus., is completely but 
 decorously answered in your pamphlet; but, unansAvered, 
 it will have its weight, not only with the vulgar, but even 
 with the bar and [those] who have not leisure or inclination 
 to look into the thing themselves. It is of importance to 
 enlist all enlightened men on your side of the question, not 
 merely on account of Dartmouth College. Every institu- 
 tion in the country is liable to the same attack, and must 
 [be] defended on the same princij^les. To show the im- 
 portance of presenting this argument to every man's view, 
 consider its eflfect upon me. When I read Richardson's 
 opinion, although I instinctively revolted at his conclusion, 
 yet I was unprepared to show the fallacy of his fundamental 
 point, viz., that a literary institution was a public corpora- 
 tion. Now, nothing appears more weak than his position, 
 for the contrary is demonstrated by reasoning as well as 
 authority. You heard not Leach too, who knows almost 
 everything, ask why a college was not a public corporation. 
 It certainly is probable, then, that many persons, by no 
 means ignorant, are uninstructed upon this subject, not 
 having had occasion to consider it. 
 
 " I think, also, that every judge of the Sup. Court of U. 
 S. ought to have a copy of this argument — for what is 
 written, may be recurred to ; what is spoken, may be lost. 
 
 " I believe the College will ultimately prevail in this suit, 
 for I cannot well perceive how a decision against it can be 
 maintained reputably, considering the principles already 
 adopted by the court. 
 
 "You are aware, I suppose, that much less interest has 
 been taken in this question hy the learned public than such 
 a great question is calculated to excite. It is because the
 
 252 DARTMOUTH COLLEGE CAUSES. 
 
 conduct of the trustees, previous to the assumption of 
 power by the Legislature, was generally thought to be un- 
 just and founded in the narrow policy of sectarians. The 
 exercise of power by the Legislature, too, has the advantage 
 of seeming to be favorable to more enlarged and liberal 
 views. 
 
 " Your pamphlet is calculated to show that something 
 more important than the success of a religious party is at 
 stake, and to awaken the attention of all who feel an 
 interest in the principles upon which any institution can 
 be supported, and this is another strong reason for pub- 
 lishing; and circulating." 
 
 There are some singular things about this letter. Whether 
 in his actual presence or not, it was undoubtedly written 
 after a personal conference between Marsh, the sole plaintiff 
 in one, one of the plaintiffs in another, and the active 
 counsel and a manager in all these suits, with Judge Parker, 
 for which purpose Marsh had apparently travelled one 
 hundred and forty miles from his home. 
 
 It was undoubtedly taken from the hands of its author 
 by Marsh to Webster, at Ipswich, where the latter was. 
 Whether this was done, as was suggested by Judge Smith 
 in relation to one of his letters, for fear copies might be 
 taken in the post-office, does not appear. 
 
 The letter shows for itself that it never passed through 
 the mail, and bears upon its back, in the handwriting of its 
 author, the following indorsement: " Hon. Daniel Web- 
 ster. Marsh, bearer." 
 
 The author of this letter was the one to whom Mr. 
 Brown afterwards referred, in his letter to Webster from 
 Albany, dated September 9, 1818, hereafter quoted. The 
 allusion to the public sentiment in regard to the trustees, 
 and the necessarily more delicate one which had reference 
 to the position of certain judges, can hardly be misunder- 
 stood ; but the framers of the Constitution never intended 
 to commit the guardianship and construction of that instru-
 
 woodward's death ALBANY CONFKUENCES. 253 
 
 ment to a court whose decisions were controlled by the 
 atmosphere of a manufactured public sentiment. 
 
 That Kent's opinion would have great weight with 
 Justice Johnson, and that his opinion and influence with 
 that of Governor Clinton were potential with Justice 
 Livingston, was obvious to all who understood the relations 
 of these men. 
 
 Those who managed for the College utilized this power. 
 
 Judge Woodward died, at Hanover, August 9, 1818. 
 The death of the defendant seems to have given new life 
 to the other side ; but the legal warfare, the plottings and 
 counter-plottings, still went on over his ashes. 
 
 Marsh, the political friend of Kent, furnished him a 
 copy of Webster's argument, and a commentary upon 
 the case, and the Windsor opinion referred to, in his 
 letter to Kent, of August 22, 1818, to which the chan- 
 cellor replied in his letter of August 26, 1818, hereafter 
 quoted. 
 
 Conferences were had — mostly at Albany, New York — 
 between Kent and Johnson, and Brown with Kent, Gov- 
 ernor Clinton, and a coterie of their adherents. Kent 
 changed his views, and agreed to draw up an opinion for 
 Johnson in this case, who, "in the end," went with Liv- 
 ingston and Story. The nominal basis was, if we are to 
 credit Kent, a political decision of the Council of Revision 
 created by the old Constitution of New York, made when 
 Kent, Livingston, and Clinton were members. 
 
 One of the duties of this tribunal was to see that no law 
 passed which was in violation of the Constitution. 
 
 The Constitution of New York, of April 20, 1777, con- 
 tained the following proviso: "But that nothing in this 
 Constitution contained shall be construed to affect any 
 grants of land within this State, made by the authority 
 of said king or his predecessors, or to annul any charters 
 to bodies-politic, by him or them, or any of them made
 
 254 DARTMOUTH COLLEGE CAUSES. 
 
 prior to that day, [October 14, 1775,] and that none of the 
 said charters shall be adjudged to be void by reason of any 
 non-user or misuser of any of their respective rights and 
 privileges between [April 19, 1775,] and the publication of 
 this Constitution." 
 
 The record is as follows : — 
 
 CoxmciL OF Kevision, Albany, April 4, 1804. 
 
 Present, Governor Clinton, Lewis, Chief Justice ; Kent, Liv- 
 ingston, Thompson and Spencer, Justices. A bill entitled, "An 
 act relative to the election of charter officers in the city of New 
 York," was before the council, which adopted the following 
 objections reported by Justice Kent, viz. : — 
 
 Because the bill contains important alterations in the charter 
 of the said cit}'-, and it not appeai'ing in the bill, by recital or 
 otherwise, that the same were made upon the application or with 
 the consent of the parties interested, it is to be intended that 
 they are made without such application or consent ; and although 
 it be granted that such an inference would be justified by some 
 strong public necessity, it is not to be presumed by the council 
 that any such necessity exists in the present case as none are 
 recited in the bill or appear from the provisions in it ; and it has 
 been considered as a settled and salutary principle in our govern- 
 ment that, in all cases where the ordinary process of law affords 
 a competent remedy, charters of incorporation containing grants 
 of personal and municipal privileges were not to be essentially 
 affected without the consent of the parties concerned. 
 
 Notwithstanding the objections the Legislature passed the bill 
 into a law. 
 
 Considering the well-nigh endless changes made by the 
 Legislature in their charter, it would probably astound the 
 people of New York, of this day, to learn that they were 
 invalid unless made with their consent. 
 
 Though there is an apparent contradiction in the terms, 
 Johnson was a Republican Centralist, and Kent, as his 
 earlier decisions showed, a State Rights Federalist. They 
 naturally gravitated towards each other.
 
 COUNCIL OF REVISION EMMET. 255 
 
 The chancellor was a great admirer of Webster, and 
 treated his views with extreme deference ; and, though 
 probaby not aware of the fact himself, was a strong partisan. 
 His letters in the Bridge case, and treatment of Emmet, 
 show this. 
 
 The question in Emmet's case was, virtually, whether the 
 rules of court requiring three or six years' study should be 
 suspended, so that he might be admitted to the New York 
 bar, or whether, with his large and dependent family, he 
 should be driven into the western wilderness. Under the 
 advice of Governor Clinton, and DeWitt Clinton then 
 mayor of New York, an informal application in behalf of 
 Emmet was made to the judges of the Supreme Court by 
 George and DeWitt Clinton. The remainder of the story 
 is thus told by Col. Charles G. Haines, the friend and 
 admirer of Kent, who had it from Mr. Emmet's own lips. 
 He says : " Chief Justice Spencer was then on the bench 
 as a puisne judge. Judge Thompson and Vice-President 
 Tompkins were also there. Chancellor Kent was the chief 
 justice. Spencer, Tompkins, and Thompson were found 
 friendly ; Kent, peculiarly hostile. Judge Spencer wa.s 
 strong and decided, and Mr. Emmet always mentions the 
 kindness, the friendship, and the effective aid of Vice-Presi- 
 dent Tompkins with many expressions of gratitude. Within 
 two years past he argued a most important cause for the 
 vice-president, without fee or reward, and obtained a ver- 
 dict of $130,000, it being a suit with the United States. He 
 said he did it with great pleasure, in remembrance of former 
 friendship. Chancellor Kent was a warm, and I may almost 
 say a violent Federalist. He execrated all republican prin- 
 ciples in Europe, and was the disciple of Edmund Burke as 
 to the French Revolution. He looked on Mr. Emmet with 
 an unkind eye, and raised his voice against his appearing in 
 the forums of our State. To the honor of the chancellor, 
 however, let it now be said, that he has more than once
 
 256 DARTMOUTH COLLEGE CAUSES. 
 
 expressed joy to Mr. Emmet that the other judges overruled 
 his illiberal objections." (Memoir of Emmet, by Haines, 
 86, 87.) 
 
 Judse Livingston was a member of the famous New York 
 family of that name. He was about sixty-two years old 
 when this case was decided by the Supreme Court of the 
 United States, and died some four years later. He gradu- 
 ated from Princeton, served upon the staff of Generals 
 Schuyler and Arnold in the Revolution, and was admitted 
 to the bar in 1783. For five years after his appointment, in 
 January, 1802, he occupied a seat between Kent and Thomp- 
 son upon the Supreme Bench of New York. His opinions 
 appear in the first, and a small part of the second volume of 
 Johnson's Reports. They exhibit his peculiar characteris- 
 tics. It was hardly necessary for Kent to tell us of Living- 
 ston's disrelish for English authorities, though he often 
 examined them with great care to see if they agreed with 
 him. His hobby was commercial law, to which fact, and 
 the peculiar relations which the Livingston family had held 
 with the political parties of New York, he was mainly 
 indebted for his appointment by Jefferson. He was an 
 accomplished scholar, an excellent advocate, and an able 
 judge. His peculiar organization gave him great independ- 
 ence. Kent had great influence with him. The shrewd old 
 chancellor, in liis letter of October 6, 1828 (.Southern Law 
 Review, July, 1872), says: "In February, 1798, I was 
 offered by Governor Jay, and accepted, the office of youngest 
 judge of the Supreme Court. This was the summit of my 
 ambition. * * * I never dreamed of volumes of reports, 
 and written opinions ; such things were not then thought of. 
 * * * When I came to the bench there were no reports 
 or State precedents. The opinions from the bench were 
 delivered ore tenus. We had no law of our own, and nobody 
 knew what it was. * * * Many of the cases decided 
 during the sixteen years I was in the Supreme Court were
 
 LIVINGSTON — Kent's influence. 257 
 
 labored by me most unmercifully, but it was necessary under 
 the circumstances to subdue opposition. We had but few 
 American precedents ; our judges were democratic, and my 
 brother Spencer, particularly, of a bold, vigorous, dogmatic 
 mind, and overbearing manner. English authorities did not 
 stand very high in these feverish times, and this led me a 
 hundred times to attempt to bear down opposition, or shame 
 it by exhausting research and overwhelming authority. 
 * * * I made much use of the corpus juris, and as the 
 judges (Livingston excepted) knew nothing of French or 
 civil law, I had an immense advantage over them. I could 
 generally put my brethren to rout and carry my point by 
 my mysterious wand of French and civil law. The judges 
 were republicans, and very kindly disposed to every thing 
 that was French, and this enabled me, without exciting any 
 alarm or jealousy, to make free use of such authorities, and 
 thereby enrich our ' commercial law.' I gradually acquired 
 proper directing influence with my brethren, and the vol- 
 umes in Johnson, after I became judge in 1804, show it." 
 
 Col. Haines, who had for years been on terms of close 
 intimacy with Livingston, and was as familiar with his 
 opinions in manuscript as he was with those of Chancellor 
 Kent, in his argument in Ogden v. Saunders, to which we 
 have before referred, says: '<Mr. Justice Livingston, 
 recently one of this court, was the associate of Alexander 
 Hamilton, Chancellor Livingston, and other able and effi- 
 cient men who contributed to the establishment of the 
 Constitution, and took a leading part himself in the events 
 of the times." 
 
 He then quotes, in relation to the history of the obligation 
 clause, from the opinion given by Livingston in Adams v. 
 Storey. That opinion was* in striking contrast with the 
 opinion of Marshall on the same subject, in Sturges v. 
 Crowninshield. 
 
 Adams v. Storey (Paine C. Ct. 79, 109) was decided by 
 Judge Livingston, at the April term, 1817. It was an action
 
 258 DARTMOUTH COLLEGE CAUSES. 
 
 brought on promissory notes made or indorsed by the de- 
 fendant, then residing in Boston, to the plaintiff, who were 
 then and at the time of the decision residents of Boston, 
 where the notes were made payable. The notes were given, 
 etc., prior to the passage of the statute of New York, of 
 April 3, 1811, " for the benefit of insolvent debtors and their 
 creditors." The plaintiff gave notice, under the general 
 issue, that he should put in evidence a discharge by the 
 recorder of the city of New York, granted under said stat- 
 ute, November 13, 1811, where the defendant then resided. 
 A verdict was taken for the plaintiff by consent, subject 
 to the opinion of the court on the case stated. 
 
 In summing up, Livingston says : '* Upon the whole this 
 court is of opinion, that the act of the 3d of April, 1811, 
 is an insolvent, and not a bankrupt law — that if it be of 
 the latter description, the several States have a right to pass 
 bankrupt laws for themselves, until Congress shall establish 
 a uniform system on the subject — that an insolvent act 
 extending to past, as well as future debts, is not a law 
 ' impairing the obligation of contracts,' within the meaning 
 of the Constitution — and that a Federal Court, sitting 
 within this State, is bound to support a discharge under 
 such law, against the claim of a foreign creditor, although 
 the debt due to him may have been contracted and made 
 payable at his place of residence." 
 
 The opinion is about thirty pages in length, and contains 
 an elaborate discussion of the obligation clause, and that in 
 relation to banla-uptcies. He denies that the law of the 
 place where the contract was made enters into the contract 
 or its obligation, and that the rule so often cited from 
 Huberus and Casaregis has any application, and says : 
 ' ' When the latter speaks of contracts territorial and exter- 
 ritorial, it is most manifest that he means nothing more 
 than that a contract made in one country is not to be con- 
 strued by the laws of another. Now the difficulty is to find 
 out what the lex loci contractus has to do with the case of a
 
 Livingston's opinion in adams v. storey. 259 
 
 future insolvency, or how the hnv of one country can differ 
 from that of another in this respect. It is piresumed to be 
 law everywhere that a man is to pay according to his con- 
 tract ; but if he be unable to pay any where, what then has 
 the lex loci to do with the case ? * * * The power to. 
 pass laws of this character, [bankrupt laws] it is said, is 
 exclusively vested in Congress, and whether they exercise 
 it or not, no State can have a bankrupt law of its own. As 
 a consolidation of the different States into one national 
 sovereignty was neither effected nor intended to be effected 
 by the Constitution, it has always been conceded that the 
 State governments retained so much of the power, which 
 they before had, as was not by that instrument exclusively 
 delegated to the United States. * * * It is ao-reed that 
 such exclusive alienation of State sovereignty can only exist 
 in three cases : where, by its terms, it is so ; or where a 
 power is conferred on the Federal government, and the 
 States are prohibited from exercising a similar authorit}^ ; or 
 where an authority is granted to the former, to which the 
 exercise of a like power on the part of the different States 
 would be absolutely and totally contradictory and repugnant. 
 It is not pretended that the grant of the power under con- 
 sideration is exclusive in its terms, or that there is an 
 express prohibition on the States from exercising a like 
 authority, but it is supposed that such exercise would be 
 so totally inconsistent with the one granted to the govern- 
 ment of the Union, as to be necessarily comprehended in 
 the third class of exclusive delegation. * * * It is an 
 uniform rule which Congress are to prescribe. But if they 
 furnish none how is it an interference for each State to leg-is- 
 late for itself? Neither the terms nor the spirit of the 
 instrument are thus disturbed. It seems designedly to have 
 been left optional with the general government to exercise 
 this power, that if the embarrassments which lay in their 
 way were insurmountable, or very great, they might omit 
 to do it, and thus leave the States to take care of them- 
 selves. If it had been intended immediately to divest the
 
 260 DARTMOUTH COLLEGE CAUSES. 
 
 States of all power on this subject, and to compel Congress 
 to act, the terms of the article would have been much m'ore 
 imperative than we find them, and probably it would have 
 been accompanied with a prohibition on the States." 
 
 He further says: "Another constitutional objection is 
 made to the defence which is set up in this cause. The law 
 under which this discharge was obtained, having passed 
 subsequent to .the date of the notes on which the action is 
 brought, is supposed to ' impair the obligation of contracts,' 
 and therefore to be void, either in the whole or so far as it 
 may extend to debts incurred previous to the passage of it. 
 There is not perhaps in the Constitution any article of more 
 ambiguous import, or which has occasioned and will con- 
 tinue to occasion, more discussion and disagreement, than 
 the one under which the present difficulty arises, or the 
 application of which to the cases which occur, will be 
 attended with more perplexity and embarrassment. Laws 
 may be passed which so palpably trespass on this article as 
 to leave no doubt in the mind of any man ; others again will 
 be of so questionable a character as to render it not very 
 easy to form a satisfactory opinion concerning them. All 
 the other restraints upon the separate members of the Con- 
 federacy, contained in this section of the Constitution are 
 conceived in terms so clear and intelligible, that rarely will 
 any hesitation exist as to what will amount to violations of 
 them ; but to decide whether a law impairs the obligation 
 of a contract, will generally be a task of some intricacy, 
 and it will not be surprising if, in the discharge of it, great 
 diversity of opinion should arise. * * * To arrive at 
 the true meaning of any article of doubtful import in the 
 Constitution, a better mode cannot be adopted than the 
 course which is generally pursued for the interpretation and 
 understanding of ordinary remedial statutes ; that is, to 
 recur to the situation and history of the country at the 
 time ; to its contemporaneous exposition, if it has received 
 anv ; and to the general understanding of the community, 
 especially if such understanding shall have been long acqui-
 
 LIVINGSTON ADAMS V. STOREY. 261 
 
 esced in by all the States and all the courts of the Union. 
 Keeping in view these rules, let us inquire what were the 
 kind of laws to which this prohibition was principally 
 designed to extend. There can be no doubt that by it was 
 intended to be corrected some, if not all, of the evils which 
 had crept into the system of legislation of many of the 
 States, and had excited a considerable alarm for the security 
 of private rights. * * * During a long and arduous 
 struggle for independence, much individual misery and 
 distress w^ere unavoidably produced. Driven from their 
 homes, and cut off in many cases, from their ordinary pur- 
 suits, the resources of many were either exhausted or so 
 much impaired, as to induce the Legislature, on various 
 occasions, to listen to the pressing calls which were made 
 upon them to devise some mode for their relief. Various 
 expedients were accordingly resorted to, and the practice of 
 interfering between creditor and debtor became so very 
 extensive, and so inconsiderate, as in many instances to 
 place the former entirely at the mercy of the, latter, and 
 that, too, under laws which were apparently introduced 
 with no other view than that of affording to the debtor a 
 temporary relief from the pressure occasioned by the then 
 situation of the countr3^ Bills of credit, and paper money, 
 were issued, and by legislative sanction were substituted for 
 o;old and silver in the discharge of debts. Creditors, in 
 some places, were liable, without any adverse proceeding on 
 their part, to be cited by their debtors, and to have the sums 
 due to them tendered in a currency whose depreciation at the 
 time produced the most glaring injustice. On their refusal 
 to submit to this mockery of justice, the public securities, 
 which had been thus offered might be deposited with some 
 public officer, and the creditor was forever barred from any 
 recovery. In other cases, payments were authorized to 
 be made by instalments. In some States, the interest which 
 had accrued during the war, or a part of it, Avas remitted ; 
 while elsewhere, not only a paper currency of no value, ]:)ut
 
 2Q2 DARTMOUTH COLLEGE CAUSES. 
 
 almost every species of property, was made a legal tender, 
 and no stipulation, however solemn, to pay in the precious 
 metals, afforded any security to the creditor. The courts 
 of justice, in many of the States, had been closed altogether, 
 and the creditor thus withheld, at least for a time, from 
 every appeal to the laws of his country, while his debtor 
 might be squandering the property out of which his demand 
 ought to have been satisfied. Geographical limits had also 
 been resorted to for the purpose of introducing the most 
 odious discriminations between creditors themselves. For 
 those who resided within the British lines and those who 
 were without these precincts, distinct remedies were pre- 
 scribed, and the scales of justice so unequally graduated, 
 that while the latter might recover the whole of their 
 demands, the former, if they sued, were compelled to 
 receive public certificates of one description or other, of so 
 little value, as scarcely to indemnify them for the costs of 
 suit which they were ol)liged to pay. Very great liberties 
 had also been taken with British creditors, many of whom 
 complained, and too justly, of the impediments which con- 
 tinued to be thrown in their way, even after the return of 
 peace." 
 
 We have the authority of Story for saying that Living- 
 ston did not recant these views in Sturges v. Crowninshield. 
 
 We copy entire the letter from Kent to Marsh, to which 
 we have already adverted : — 
 
 Albany, 26 August, 1818. 
 
 Dear Sir, — Your letter of the 22d inst. with Mr. "Webster's 
 argument was received this morning, & I thank you for this 
 mark of attention. 
 
 The argument does credit to the talents & principles of Mr. 
 Webster. I have been long taught by his parliamentary produc- 
 tions to esteem & admire him. I took a hasty journey the other 
 day through part of your State to recruit my spirits. Mrs K & 
 I started in the stage from this city and reached Brattleboro the 
 same day. This ride gave me abundantly what I sought, which 
 was jolting mountain air. The next day we went up to Hanover
 
 KENT TO MAKSII. 263 
 
 & while rambling there over the beautiful green I met a gentle- 
 man I knew & this led me to an introduction to the president & 
 professors of the university. I was not so fortunate as to meet 
 with a similar introduction to the officers of the college though 
 it was equally desirable. Being on the spot & witnessing the 
 college sessions I was anxious to know something of the contro- 
 versy though nothing was said on the subject by the gentlemen 
 to whom I was introduced. I had often casually heard the 
 subject mentioned but knew nothing of its merits. After some 
 search I was enabled to purchase the opinion of the Sup. Court 
 of N. H. as delivered by the Ch. J. and read it the next day on 
 my return to Windsor. That opinion furnished me with the few 
 scanty facts I possessed in regard to the great constitutional ques- 
 tion and it appeared to me on a hasty perusal of it that the Legisla- 
 ture was competent to pass the laws in question, for I was led by the 
 opinion to assume the fact that Dartmouth College was a public es- 
 tablishment for purposes of a general nature. I knew nothing, nor 
 do I now know anything material in respect to the policy or motives 
 of the laws or what were the real inducements to pass them. 
 
 But I will declare to you with equal frankness that the fuller 
 statement of facts in Mr.' W.'s argument in respect to the original 
 & reasons & substance of the charter of 1769 and the sources 
 of the gifts, gives a new complexion to the case and it is very 
 probable that if I was now to sit down and seriously study the 
 case with the facts at large before me that I should be led to a 
 different conclusion from the one. I had at first formed. But my 
 hasty impressions one way or the other are not worth mentioning 
 for I deem them of no value. I have merely stated these inci- 
 dents to show how very acceptable is the argument you sent me. 
 I am exceedingly pleased with the settlements on Connecticut 
 River. We rode from Windsor to Burlington in a day and I had 
 only a glimpse of Woodstock where you reside as we passed 
 rapidly through it about sunrise. The ride that day was delight- 
 ful, for I have always looked on mountain scenery and the quiet & 
 substantial comforts of country life with enthusiasm. I hope you 
 will make yourself known to me if you ever pass thi-ough Albany. 
 
 James Kent. 
 
 To Charles Marsh, Esq. 
 
 As has already been suggested, the opinion of Judge 
 Richardson contained a statement of facts ; and the pam-
 
 264 DARTMOUTH COLLEGE CAUSES. 
 
 phlet produced by Kent gave precisely the same informa- 
 tiou as the State report. Probably no person was ever 
 misled by the State report, — except (?) Chancellor Kent. 
 Strange as it may seem, Daniel Webster and Jeremiah 
 Mason never discovered it. 
 
 The State of New York was divided between Clinton and 
 Tompkins. 
 
 Unfortunately for Wheelock's adherents, the organiza- 
 tion of the party with which they necessarily became 
 affiliated in New Hampshire was controlled by men bitterly 
 opposed to Clinton. No man knew it better than he, for 
 a portion of his most active supporters, like Colonel Haines, 
 were New Hampshire men, familiar with every phase of the 
 College quarrel and the political warfare in the State. 
 
 Clinton was able, strong-willed, and combative in the 
 highest degree. Like the petrel, he was always at home 
 in a storm. Governor Plumer was an anti-Clintonian. 
 
 In August, 1818, Isaac Hill, the great pillar of support 
 of the Wheelock cause, with whom Haines was well 
 acquainted, openly assailed Clinton with great bitterness 
 in his newspaper. It was but natural for President Brown 
 to " hope," under these circumstances, that Clinton *' would 
 incline to favor us rather than our competitors." 
 
 The followinsf remarkable letter from Brown to Webster, 
 dated at Albany, September 8, 1818, throws a flood of light 
 on this part of the inside history of these causes. He says : 
 " I arrived in this city three days ago on a journey under- 
 taken for the general purposes of the College. 
 
 " I have seen Chancellor Kent, and am to dine with him 
 to-day. The chancellor was in our quarter about the last 
 of July — saw Judge K.'s opinion — was pleased with it — 
 & spoke in approbation of it before the great men of Wind- 
 sor. The story of course went through the country, that 
 Chan. K. had, after examination of the case, given a decided 
 opinion in favor of the Univ. Mr. Marsh sent him your 
 argument. 
 
 " As soon as I saw him, he began to express his regret at
 
 THE ALBANY LETTER. 26^) 
 
 what he had said at Windsor — he really had not examined 
 the subject at all — gave a hasty perusal to Judge K.'s 
 pamphlet — was disappointed to find in it so much legal 
 talent — and, although he was careful to state that his 
 opinion was not to be relied on, yet, if the premises as- 
 sumed by the court were correct, he did not see but the 
 conclusion would follow. This is substantially the account 
 he gives of his remarks at Windsor. He told me he had 
 replied to Mr. Marsh's letter accompanying the argument, 
 and had said to him, that this argument gave a very dif- 
 ferent complexion to the case, &c. 
 
 " I think it may be of some importance to the right 
 decision of the case, that the chancellor should not only 
 have a correct opinion, but should be induced to declare it. 
 Judge Johnson has been here. This the chan. mentioned, 
 & he also said that the judge conversed on our case, & re- 
 marked that the court had a cause of ' awful ' magnitude to 
 decide &c. From what I learn from other sources the 
 judge has formally requested the chan.'s opinion. This 
 opinion, if given, will also have great influence on Judge 
 Living-ston. Now I think the chan. on examination of the 
 case, cannot fail to be right. He had, he said, great 
 pleasure in reading your argument, and spoke in terms 
 sufficiently flattering of the legal a1)ility & logical power 
 displayed in it, & added he should probably, if he had 
 time to examine all the facts, agree fully with you. But 
 still there was some reserve, which perhaps arose alto- 
 gether from an apprehension that I should imprudently 
 report what he might say, — but possibly it may be other- 
 "wise. 
 
 ' ' I have thouo;ht it best to communicate these facts to 
 you, that you may consider whether any thing is to be 
 done. Does Judge Parker know the chancellor, & would 
 he be inclined to write him on the subject? 
 
 ^^ Evening. — I have been with the chancellor. He has 
 read the charter, and it is evident to me that he is satisfied. 
 I asked him if the corporation of D. C. did not appear to
 
 266 DARTMOUTH COLLEGE CAUSES. 
 
 be a private eleemosynary corporation. He smiled & said 
 he believed he must express no more opinions till the cause 
 should be decided. 
 
 " I have also been presented to Gov. Clinton to-day, 
 who kindly inquired respecting our cause, & expressed a 
 desire to see our charter & the argument. These, of course, 
 I did not hesitate to furnish him. I shall have opportunity 
 of calling on him again before I leave Albany, and hope he 
 will incline to favour us rather than our competitors. 
 
 " The following statement, which I have had from the 
 best authority, will show the leaning of three great men 
 in New York : In 1803, the Leg. of this State attempted to 
 change the charter of N. Y. City without consent of the cor- 
 poration. The present gov. & chan., & Judge Livingston 
 were of the Council of Revision (if that be the name), that 
 year — the chan. objected to the bill, and assigned his rea- 
 sons, which embrace some of the main points of your argu- 
 ment. The objection was overruled.^ The next year a still 
 further attempt was made by the Legislature, a similar 
 objection was made, and it prevailed. Both Gov. Clinton 
 and Judge Livingston sided with the chan. 
 
 " Judge Johnson expressed to Chancellor Kent a strong 
 desire to have a copy of the printed argument. I wish you 
 would forward one to him. I have none to spare." 
 
 This letter went from Webster into the hands of Farrar, 
 another of the counsel. Farrar preserved it with great 
 care, and it is now in the archives of the New Hampshire 
 Historical Society, among the papers relating to these causes, 
 known as the " Farrar Papers." 
 
 Whether ' ' Judge Parker ' ' wrote ' ' the chancellor ' ' or 
 not, does not as yet appear. We have been unable to 
 exhume the Kent-Johnson opinion, our letter-files showing 
 that Johnson's papers, like those of Pinkney and Haines, 
 have been scattered to the four winds. 
 
 Mr. Brown does not state who his informants, <'the best 
 
 ' See Brown's letter to "Webster, of September 15, 1818, hereafter quoted.
 
 COLONEL HAINES. 207 
 
 authority," " and other sources," were. Several undoubt- 
 edly contributed, but he was probably more indebted to 
 Colonel Haines than any other one. 
 
 Haines was a young man of rare promise and exceptional 
 facilities. He was born in 1793, in Canterbury, which joins 
 Concord, New Hampshire, the ancient boundaries of his 
 native town touching the " paternal acres " of Webster. 
 
 When fourteen years of age, with Nathaniel H. Carter, who 
 was afterwards one of the professors in the University, and a 
 prominent New York Clintonian editor, politician, and man 
 of letters, and others, he became a clerk in the office of 
 Philip Carrigan, then secretary of state of New Hampshire. 
 He graduated at Middlebury College, Vermont, in 1816. 
 In 1817, for the benefit of his health, he took a trip on 
 horseback to Albany and Pittsburg. On this trip he became 
 acquainted with Surrogate Sylvanus Miller, and then with 
 Governor Clinton, who induced him to go to New York. 
 He soon returned, read law with Horatio Seymour, after- 
 wards United States senator from Vermont, and acted as 
 assistant editor of a political newspaper at the same time. 
 Early in 1818 he removed to New York, and entered the 
 office of Pierre Van Wyck, became the protege of Clinton, 
 who gave him the confidential position of private secre- 
 tary, which he held till 1821. He served his patron with 
 a devotion which knew no bounds, till his death, July 3, 
 1825. 
 
 He edited The United States Law Journal, and wrote a 
 legion of essays on legal, historical, and political subjects. 
 
 It is tribute enough to his ability to say that his argu- 
 ment in Ogden v. Saunders carried with him a majority of 
 the Supreme Court, against Wheaton, Webster, Story, and 
 John Marshall, and is to-day, without a dissenting voice, the 
 recognized law of the Union. Webster, after his death, said 
 of him : " He was ten years my junior, and when he died I 
 think the most brilliant man in the country." Whoever 
 had his ear had that of Clinton. 
 
 If the daily journal wliich Kent kept, and his pri\jite
 
 268 DARTMOUTH COLLEGE CAUSES. 
 
 papers, are ever given to the public, they will probably throw 
 additional light upon the subject. 
 
 Apparently not one word of this ever came to the ears of 
 the counsel for the University, or any of its friends. 
 
 The statement in Brown's letter, in relation to the Council 
 of Revision, and that of Haines in Ogden v. Saunders, on 
 another point, are almost identical, showing that they had 
 a common source. Colonel Haines said : " Legislative ex- 
 positions are not to be relied on in determining constitu- 
 tional questions ; but it may be well to state that there was 
 formerly a peculiarity in the Constitution of the State 
 of New York worthy of notice. The old Constitution was 
 adopted in 1777, and established a Council of Revision, 
 composed of the governor of the State, the chancellor, and 
 the five judges of the Supreme Court. It was the par- 
 ticular duty of this Council to revise all laws before they 
 received their last sanction, and to judge of their consti- 
 tutionality. This Council was under oath to support the 
 Constitution of the United States. One year after the 
 adoption of the Constitution of 1777 a general bankrupt 
 system was established in New York. In 1801 it was 
 revised. In 1811 there was a new system; and in 1813 
 the old law of 1801 was revived. Chief Justice Jay, 
 George Clinton, Chancellor Livingston, Chancellor Kent, 
 and Chief Justices Thompson and Spencer were members 
 of this Council. They saw no repugnancy to the Consti- 
 tution of the United States in these laws, as they came 
 under their review." 
 
 While en route from Albany, Brown wrote to Webster 
 the following significant letter, which lies before us : — 
 
 Keedsboro (Green Mountains), Sept. 15, 1818. 
 My Dear Sir, — I am so far on my way from Albany. After 
 I wrote you I had repeated opportunities with the chancellor. 
 There is no doubt that, by the argument & the charter, he is 
 brought completely over to our side ; & he has a full impression 
 of the importance of the question. I believe he will take every 
 proper and prudent measure to impart correct views to others.
 
 THE CONFERENCES AT ALBANY. 2G'J 
 
 While I remained in Albany another copy of your argument fell 
 into his hands, which, he said, agreeably to the strong wish 
 of Judge Johnson, he should transmit to him. You will judge 
 of the expediency of requesting any Mass. jurist to write a line 
 to the chancellor, as hinted in my last. A little delay, however, 
 I should think advisable, should any communication be made. 
 
 I said something respecting legislative interference with the 
 charter of the city of N. Y. A part was correct, & a part not. 
 The following presents a true view of the case. With the chan.'s 
 permission, I copied from an appendix, in his own handwriting, 
 to a printed collection of the proceedings of the city corporation, 
 as follows : — 
 
 "In Council of Revision, March 4, 1803. 
 
 " Present, the Govr. ; Judges Kent, Livingston, Thompson. 
 The bill below mentioned was committed to me." 
 
 " In Council, March 8, 1803. 
 
 "Present, ut supra. 
 
 " I reported the following objections, &c. : (The bill was enti- 
 tled, ' An act to increase the number of wards in the city of New 
 York,' &c.) 
 
 "1. The bill contains certain alterations in the charter of said 
 city, not made on application, or with the consent of the mayor, 
 aldermen, &c. 
 
 "2. This alteration without consent is a breach of the faith 
 of govt, pledged to p. corporations, &c. 
 
 "3. If the alteration contained in the sd. bill can be made 
 without consent of the cor., others may be, &c. And any 
 charter or grant from govt, can be altered or rescinded at 
 pleasui'e. ' ' 
 
 (All the Council against him.) 
 
 "In Council of Rev., March 31, 1804. 
 
 "Present, the Govr. (Clinton), George; Chf. Just. Lewis; 
 Judges Kent, Livingston, Thompson, Spencer. 
 
 "A bill entitled, 'An act relative to the election of charter 
 officers in the city of N. Y.,' was read and committed to Mr. 
 Justice Kent." 
 
 (From objns. I quote only the following:) 
 
 " It has been considered & treated as a settled and salutary 
 principle in our govt, that charters of incor. were not to be 
 essentially affected without due process of law, or without con-
 
 270 DARTMOUTH COLLEGE CAUSES. 
 
 sent of the parties concerned. Nothing but a strong puhlick 
 necessity would justify such an interference. 
 
 (This objection was overruled by all the judges. The Govr. 
 requested time to deliberate. ) 
 
 "In Council, April 4, the Govr. reported an objection sub- 
 stantially the same" as the above; in which Judges Kent, 
 Livingston & Thompson concurred ; the other two non-concurred. 
 
 The chancellor sd. it was to be considered he made these 
 objns. as a politician, not as a judge ; and he was not clear that 
 the doctrine laid down was correct, as applied to corporations for 
 the purpose of govt., &c. Of all this a prudent use is to be 
 made by us. 
 
 As to DeWitt Clinton, to whom I lent the argument, he went 
 off to his canal before I called for it & carried it with him. 
 No harm, I trust, will arise from its remaining with him. 
 
 I regard my visit to Albany as of no small importance to our 
 cause. The Court of Errors being in session, the greatest legal 
 talents in the State were convened there ; and, so far as any 
 impression has been given, it is unquestionably in our favor. 
 The whole is, of course, attributable to you. Every day brings 
 additional proofs of the propriety & even necessity of giving 
 circulation to your argument. I ought to have added above, that 
 Gov. Clinton said he understood the Sup. Court would sus- 
 tain the action and probably decide for the College. 
 
 So much for Albany. I know not whether j'ou will be able 
 to dec3q)her this ; if not, please to write me, & I will endeavor 
 to explain. I am, my dear sir, truly yours, 
 
 Francis Brown. 
 Hon. D. Webstbr. 
 
 Webster replied to these letters. His answers are still 
 in existence. We have not been able to obtain them for 
 publication, but have been courteously furnished with the 
 following extract from Webster's letter to Brown, of Sep- 
 tember 20, 1818: "I reed, yours from Albany, & to-day 
 that from Keedsboro'. You are probably at home by this 
 time and will find one from me. I am particularly gratified 
 with the state of things where you have been. 
 
 ' ' I never doubted for a moment on which side of such a 
 question C. K.'s mind must ultimately rest. I have studied
 
 BROWN TO WEBSTER. 271 
 
 him (in his works) many years, and I think I understand 
 him. He has great talents, great legal learning, & great- 
 ness, firmness, & independence of mind. His opinion will 
 have weight wherever it is kno^vn. 
 
 " I hope he may express himself as occasion may offer." 
 
 Dart. Coll. Sept. 19, 1818. 
 
 My Dear Sir, — I have received your favor of the 6th, and 
 have seen Mr. Marsh. 
 
 In regard to the reprinting, I have some little doubt, whether 
 the benefit to be expected would render the measure expedient, 
 considering how soon it may be hoped the volume will appear. 
 The very scarcity of the argument, & the half-secret & cautious 
 manner of the distribution, stimulate curiosity, & add somewhat 
 to the preciousness of the document. It has ah'cady been, or 
 shortly will be, read by all the commanding men of New England & 
 New York ; and so far as it has gone it has united them all, with- 
 out a single exception within my knowledge, in one broad and 
 impenetrable phalanx for our defence & support. N. E. & N. Y. 
 are gained. Will not this be sufficient for our present purposes? 
 If not, I should recommend the reprinting. And on this point you 
 are the best judge. I prevailingly think, however, that the cur- 
 rent [of] opinion from this part of the country is setting so strongly 
 towards the South that we may safely trust to its force alone to 
 accomplish whatever is necessary. I acknowledge I am sanguine, 
 and, on that account, ought to distrust myself. I, therefore, con- 
 clude this topick by saying, if, in your opinion, any thing more 
 needs to be done in enlightening the more eminent of the profes- 
 sional men of the country, let a hundred or two copies be struck 
 off without delay. But even in that case I should recommend the 
 principle of selection in the distribution ; for I would not allow 
 the argument to be common, until it is to be sold. 
 
 Prof. Adams has mentioned your plan for funds and I hope you 
 will not give it up (unless a better one presents) on account of the 
 free remai-ks of our excellent friend Mr. Marsh. He mentioned 
 that he discouraged a loan — the favor must be a gift. I agree 
 with him, so far as this mode can be made to succeed ; so far as 
 it cannot, the other is unquestionably to be seized with thankful- 
 ness.
 
 272 DARTMOUTH COLLEGE CAUSES. 
 
 It is true we shall have to struggle hard, even after we have 
 gained the victory in the legal combat. And, therefore, it is our 
 duty to provide, in the present exigency, which presents a tan- 
 gible object to the community, for future emergencies. I do not 
 yet despair of obtaining all that may be needed, as a gift. We 
 can at least pull on this string for two or thi-ee months. Will it not 
 then be best to suspend operations for a loan for the present? 
 When January comes we shall know how we stand, & what more 
 is necessary, and we can then act according to circumstances. 
 
 I have received an answer from Mr. Hopkinson. He consents 
 to prepare his part of the argument for publication, and I presume 
 it will be ready in season. The book must be out at the earliest 
 possible day after the opinion of the court can be procured. Will 
 it be best to print in Boston ? What printers shall be employed ? 
 Will it be best to have proposals issued beforehand? What 
 terms can be secured? — these are inquiries which have occurred to 
 me, & which I will thank you to consider at some convenient time. 
 
 We are under obligations to Dr. Kirkland for his civilities & 
 
 proffers of aid. I have no question of his sincerity ; and I believe 
 
 he exercises no more caution than other men in eminent stations 
 
 have thought proper to observe. We will avail ourselves of Ms 
 
 kindness at such time & in such manner as may seem best. 
 
 I am, my dear sir, as ever. 
 
 Yours, 
 
 Fkancis Brown. 
 Hon. D. Webster. 
 
 We have followed the italics of Mr. Brown. To him all 
 the secrets of the counsel were committed. It is quite 
 obvious that in this letter he personates the three judges 
 geographically, and equally so that he regarded two of 
 them — all that were needed — as " gained ' ' to the side of 
 the College, and that Johnson was favorably inclined. 
 
 In his letter, written from the College to Mr. Webster, 
 dated September 26, 1818, Mr. Brown says : " When any- 
 thing new occurs, of any importance to the common con- 
 cern, I think proper to apprize you of it. I am not, however, 
 mthout fear, that I shall weary you by my letters. 
 
 " Dr. Perkins has said, since his return, that he borrowed a
 
 BROWN TO WEBSTER. 273 
 
 copy of the argument, under the restriction of not allowing 
 it to go out of his hands, of not copying it, &g. , with liberty 
 to keep it a few days or weeks. But, he observed, as some 
 parts of it have been copied, by some of his friends at a dis- 
 tance, & will be used on their side, he thought best to return 
 the argument to you next morning, after taking it, lest you 
 should suspect hi7n of having made the copies. He added, 
 that he had obtained the abstracts. Some uncharitable 
 individuals think it possible the friends at a distance were 
 friends in Boston. What use is to be made, he did not say ; 
 whether they are to be published in the newspaper at Con- 
 cord, or only put into the hands of counsel. If parts are to 
 be inserted & commented on in their papers, unquestionably 
 the argument ought to be published & circulated. We 
 shall see how this is shortly. 
 
 " At Exeter, as I learn, they are going to attempt to show 
 from the correspondence of Dr. E. Wheelock that he con- 
 sidered the College to be altogether distinct from the school; 
 the school, to be sure, being u, private charity, — the College 
 a publich institution, & on a very different foundation. I 
 presume no such evidence will be admitted. If it should be, 
 the trial must be long, & it is impossible to conjecture 
 what may be shown. 
 
 "In the attempt which they will make, to prove this 
 not to be a private eleemosynary corporation, they will 
 probably bring in the lands & other donations given by 
 the Leg. of N. H. May it not be of some consequence to 
 ascertain these grants, & obtain copies from the secy's. 
 office? 
 
 " In the argument of the cause, I also learned, they will 
 attempt (probably the attempt was made last March by Mr. 
 Wirt,) to show a distinction between the universities in 
 Eng. & the colleges founded loithin them — the latter being 
 admitted to be charities, the former not, but designed for 
 the purposes of regulation, government, &c., and Dart 
 College resembles the univties. rather than the colleges in
 
 274 DARTMOUTH COLLEGE CAUSES. 
 
 Eng, Ergo, the Leg. has aright to interfere. This, I doubt 
 not, has occurred to you. They will make it, I think, their 
 great point. 
 
 " As to the question, ' Who shall argue th6 cause on our 
 side ? ' I answer very decisively, yourself, unless reasons 
 should occur against it, which I have not yet thought of. 
 At present I think I should not be willing to trust it in any 
 other hands. 
 
 ' ' I have the fullest confidence in our counsel at Exeter ; 
 at the same time I should rejoice should you find it conven- 
 ient to be there. They will endeavor to bring in as many 
 things as can possibly be found to give to D. C. the appear- 
 ance of being what it is not, an institution of a public char- 
 acter, such as it is admitted the govt, may control." 
 
 This letter shows that it was sent by a private messenger, 
 Mr. Kent, directed to Webster at his old home, " Salisbury, 
 or Concord." 
 
 The Albany conferences, as well as a portion of Judge 
 Parker's letter, undoubtedy had their inspiration in the fer- 
 tile brain of Marsh. 
 
 None knew the impropriety of the means resorted to for 
 influencing the minds of certain judges better than Marsh ; 
 but he probably justified himself in taking such steps 
 because of the course which he understood had been followed 
 by Story. 
 
 We have been unable to obtain his letters, but his views 
 in this respect appear distinctly enough in the letter to him 
 from his associate counsel, Hopkinson, which we quote 
 
 entire : — 
 
 Washington, Dec. 31, 1817. 
 
 Dear Sir, — I received your favor of the 19th inst. enclosing a 
 note for Mess. Gales and Seaton which I shall deliver without 
 delay; and trust it will have the effect to induce them to keep 
 their press silent in a matter of so much importance, and which is 
 to come before the highest tribunal in the nation for decision. 
 Altho. the attempts of the defts in this case to excite a pi-eju- 
 dice in the public mind by newspapers, and party representations,
 
 HOPKINSON TO MARSH. 275 
 
 is vile and unjust, it is likely they will be able to produce less 
 effect, by these means, upon a court than a jury. 
 
 The situation in which, if you are not misinformed, Judge Story 
 has placed himself is much more alarming to us — and so disreput- 
 able to him should he sit in the case — that I confess I am inclined 
 to believe that your information in this respect, must be mistaken, 
 should it however be otherwise and he is about to sit as j udge in a 
 cause in which he has been a feed counsellor, I should have no hesi- 
 tation in resorting to any legal and proper means to prevent such 
 an abuse of power and office. The influence of the judge with the 
 court in general cases, is, I think, considerable ; and will probably 
 be very great in one like the present. If, therefore, the judge has 
 committed himself in the way you mention, it will never do to 
 hazard so important a case on a question of delicacy to him. As 
 to the place the case will take on the docket and the probability of 
 reaching it at the ensuing court, I can only say, that the clerk 
 enters the causes as the records come to his hands, and would not 
 feel or indeed be authorized to vary this order, and judging from 
 past experience there will hardly be a chance of reaching, in its 
 regular course, your cause at the coming term. The only hope 
 arises from the nature and importance of the case, and the neces- 
 sity of obtaining a speedy decision, to prevent injury, perhaps ruin 
 to a public institution, if suffered to remain another year in a state 
 of unsettled controversy. I have no doubt the court have a dis- 
 cretionary power over the docket, to give preference in ver}' extra- 
 ordinary cases ; and it seems to me that this is one of the cases 
 in which they might be fairly called upon to exercise it. 
 
 I fear however the consent of botli parties would be required for 
 such an interposition. I rejoice that the "poor droves of cattle " 
 however improper their conduct, have been relieved from prosecu- 
 tions, which would have reduced them to ruin and want, without 
 adding much to our "overflowing treasury," or gratif3'ing any- 
 body but those who prosecute more for spite and profit than patriot- 
 ism. We have had an unusually busy session in Congress for so 
 early a part of the session, the new members have been very dili- 
 gent in exercising themselves upon old soldiers, war-worn officers, 
 and Revolutionary glories, and our devotion to the people has been 
 shown by the repeal of all the internal taxes. 
 
 Jos. HOPKINSON.
 
 276 DARTMOUTH COLLEGE CAUSES. 
 
 Soon after the decision of the College causes by Judge 
 Story, Webster visited the chancellor, who wrote on the fly- 
 leaf of a book, now in our possession, the following memo- 
 randum: "August 2d, 1819. A sister of the author of 
 these volumes [Mrs. Lee], in company with D. Webster & 
 his wife, was at my house in Albany and dined there."
 
 CHAPTER XL 
 
 THE CAUSES IN THE CIRCUIT COURT — SPECIAL VERDICTS 
 AND CORRESPONDENCE — ABSTRACT OF DOCUMENTARY EVI- 
 DENCE— FARRAR'S REPORT — WHEATON'S REPORT MADE UP 
 FROM FARRAR'S — ALLEN AND WHEELOCK V.DARTMOUTH 
 COLLEGE — OLD TRUSTEES SEEK TO DISREGARD THE DECI- 
 SION OF THE SUPREME COURT, AGAINST JUDGE SMITH'S 
 ADVICE. 
 
 The following correspondence explains some of the per- 
 plexities of the plaintiffs in instituting the suits in the Cir- 
 cuit Court, and in framing the special verdicts. The 
 abstracts of the defendant's documents (omitting the letter 
 of Dartmouth, of April 25, 1771) were prepared by Mr. 
 Brown. Brown, in his letter to Farrar, of February 19, 
 1818, says: "The trustees are together. They have re- 
 solved to commence suits without delay. Will you have the 
 goodness to procure half a doz. blanks from Mr. Freeman, 
 [the clerk of Story's court,] & to forward them to me 
 immediately by mail ? ' ' 
 
 Appended to the above is the following note from Marsh 
 to Farrar : " It is doubtfull whether the English action of 
 ejectment ^^^ll answer the object expected from it, the con- 
 fession of lease, entry and ouster will not superseed the 
 necessity of proving the Deft in possession of the prem- 
 ises — such was the understanding and practice in Vermont, 
 and such is supposed to be the law in England. 
 
 " There has never been any thing in practice in Vermont 
 analogous to the writ of entry in England. — Is anything 
 intended by the expression in your letter " a writ of entry,''' 
 different from the process in use in this State vulgarly called 
 ejectment ? If so has this form of proceeding been common 
 
 (277)
 
 278 DARTMOUTH COLLEGE CAUSES. 
 
 ill your part of the State? nothing is known of it by the 
 lawyers here, — can you furnish a form of the writ? — I 
 make these enquiries partly for want of time to investi- 
 gate so far as would be necessary to introduce with safety a 
 form of writ entirely new in practice in this State and the 
 State of Vermont, and the more so as we wish to commence 
 these suits immediately, — who is the marshall and has he 
 any deputy in the western part of the State ? ' ' 
 
 The following, from Farrar to Brown, explains Mr. Ma- 
 son' s views : ' ' Since you have left this town I have conferred 
 with Mr. Mason concerning the actions most hkely to suc- 
 ceed in raising the College question before the Circuit Court. 
 He recommends the following : 
 
 " 1st. An action of trover for the College Library. To 
 prepare the way for this action there must be an actual and 
 bona fide sale for a valuable and full consideration to a citi- 
 zen of Vermont. The bill of sale should be executed and 
 the books formally delivered at some time when the library 
 is accessible by an authorized agent of the Trustees in the 
 manner mentioned when you were here. 
 
 " The purchaser may then offer or attempt to take pos- 
 session & carry the books away, which he may do if no 
 objection is made and then proceed in the same manner with 
 the apparatus &c. 
 
 " But if objections are made he may then commence his 
 action against the librarian or person or persons having 
 the actual possession and custody of the books ; as a 
 recovery in trover will change the property and vest it in 
 the Deft it will be best to hold in bail in a sum equal to 
 the value of the Library. The purchaser agent and wit- 
 nesses who go into the Library for the above purpose 
 should all be citizens of another State so that if the Univ. 
 should become Phit^ and sue them as Trespassers the 
 action may be removed to the Cir. Court. 
 
 "2d. A writ of entrv for some College land of the value 
 of $2,000.00 against a tenant who has forfeited his lease by
 
 mason's views FARRAR TO BROWN. 279 
 
 non-payment of rent. For this purpose there must be an 
 entry and a conveyance to a citizen of Vermont on a bona 
 fide sale for a valuable and adequate consideration. 
 
 "These are the actions which Mr. Mason thinks most 
 likely to answer the purpose of raising the question, and 
 which he would not have omitted for the sake of trying 
 experiments with an}'' other. 
 
 ' ' But in addition to these he thinks it would be well to 
 try some actions for the last granted township of wild land 
 in the north part of this State, a proper conveyance to 
 be made as in the other cases to a citizen of Vermont and 
 the actions he would bring, are — 1st, a writ of entry 
 directly against the Trustees of Dart Univy as a Corpo- 
 ration, and 2d, a writ of ejectment in the English form 
 against anybody as casual ejector who would agree to be 
 Deft & give the requisite notices to Trustees of the Univ'y. 
 This last action he would bring on the idea that the Trustees 
 of the University might be compelled to confess lien, entry 
 & ouster, and take upon themselves the defence with the 
 form of proceeding in this action. Mr. Marsh is more familiar 
 than the gentlemen of the profession in this State and of 
 course better able to judge of the chance of its success." 
 
 In his letter to Farrar, of February 27, 1818, Marsh says : 
 "Your letter to Mr. Brown of the 7th instant is now 
 before me — I wrote you a note a few days since in a letter 
 from Mr. Brown, — since that time I have paid what atten- 
 tion I have been able to the subject of the letter as to the 
 various actions Mr. Mason proposes to have bro't in order 
 to bring our controversy properly before the court, we may 
 perhaps succeed in planting an action of trover in the man- 
 ner proposed — there is much more dilBculty in instituting 
 the actions proposed for the recovery of real property — 
 we can scarcely find any one piece of real property which 
 can be sold of the value of $2,000, — and of which any one is 
 in possession in such manner that an action ynW lie against 
 the tenant. A greater difficulty however at present is the
 
 280 DARTMOUTH COLLEGE CAUSES. 
 
 form of action proposed, — the writ of entry has not been 
 in use in this State since its existence, nor is it I believe in 
 common use in atiy of the neighboring States. It will also 
 be remembered that for a great number of years it has been 
 almost unknown in the English practice, — so much so that 
 in no book of entries within my reach is any thing like a 
 precedent to be found. Bohun's Institutio Legalis and Lil- 
 ly's Entries are the oldest books of precedents which I have 
 it in my power to consult. 
 
 "It is proposed also to bring a writ of entry directly 
 against the trustees of the University for the last granted 
 township of wild land in the northern part of New Hamp- 
 shire and also an Ejectment in the English form against 
 some casual ejector for the same lands. From what oppor- 
 tunity I have had to examine the authorities since this sub- 
 ject was proposed I do not find that a writ of entry will lie 
 to try the title to land of which no one has ever been in pos- 
 session, nor will ejectments in the English form answer bet- 
 ter in such case — the confession of lease, Entry and Ouster 
 will neither aid the Plffs title or give him a cause of action 
 when in fact he has none — the trespass and ejectment must 
 still be proved against Deft and even where we proceed in 
 ejectment as for a vacant possession ^ still it must be shown 
 that the tenant has been at some time in possession, and in 
 the State of New York it has been decided that the rules of 
 proceeding in ejectment as for a vacant possession have no 
 applicability in this recently settled country. 
 
 ' ' In this last case also it is necessary to make an actual 
 entry on the premises and there seal and deliver a lease to 
 the plaintiff. It is unnecessary to say that this cannot be 
 done at this season on any part of the White Hills. By 
 this last case I mean when we proceed as for a vacant pos- 
 session. In all other cases in ejectment a declaration must 
 be made to each tenant in possession and affidavit of this 
 fact must be made before the court will proceed. 
 
 " I fear, my dear sir, that we shall too much try your &
 
 mason's views MARSH TO FARRAR. 2^1 
 
 Mr. Mason's patience. I have no inclination to try ' ex- 
 periments,' but want assistance to surmount real obstacles 
 in our progress. I know that Mr. M.'s avocations arc 
 numerous and pressing, and wish, therefore, to make him 
 as little trouble as possible. 
 
 " If we can prepare the conveyances after having provided 
 purchasers, will it not be expedient that writs should be made 
 by you or Judge Smith ? Can you inform me in Avhat way 
 bonds are put in for costs of prosecution in the Circuit Court 
 in your circuit ? In this circuit there is a rule of court that 
 the pl'ff in every action shall file a bond with and to the 
 acceptance of the clerk of the court in the sum of two hun- 
 dred dollars on the return of the writ for the security of cost 
 to Deft." 
 
 The following, written by Mr. Brown, is appended: 
 ** You see what Mr. M. has wi-ittcn. Dr. Hatch will either 
 hand you this, or will send it by mail, calculating to call in 
 two or three days afterwards. He has purchased some land 
 of Mr. Olcott, as agent for T. of D. Coll. I believe after 
 what Mr. M. writes, it will best for you (consulting with 
 INIr. Mason, of course) to make the writ, i. e. in this suit to 
 be instituted by Dr. H. Other suits will be commenced in 
 due time. In the Hall (so-called) there is no proper tenant 
 at this time — a widow woman occupies a room or two. But 
 Mr. Hutchinson is the Inspector. His business is to Ijeep 
 the keys — to let rooms — to put persons in possession — 
 & I beheve he always has the keys commanding the 
 entrance into the house, — could the inspector be sued in 
 ejectment? Has he the possession? Give your opinion & 
 Mr. M.'s, if you please. I wish you to say nothing to Dr. 
 Hatch about the Library. That business will require a little 
 time. It is in train, but it must not take air. Mr. W. 
 writes from Washino;ton that the aro-ument will be heard 
 this term. Vacation closes to-morrow. Twenty students 
 already on the ground, or nearly that number." 
 
 On the margin of the first page of this letter is the follow-
 
 282 DARTMOUTH COLLEGE CAUSES. 
 
 mg,,written by Mr. Brown : " As, after all, it may be expe- 
 dient to sue for the lands N. of the White Hills, I wish you 
 should write to Mr. Marsh as largely as you can." 
 
 In his letter to Farrar, of December 7, 1818, Judge 
 Smith says : " The first leisure moment after my return 
 from the circuit I set myself diligently to work, as myman- 
 ner is, to revise the sjDecial verdicts in Coll. causes. I 
 framed one for Marsh v. Allen et a. — When I was ready to 
 submit them to Mr. Sullivan the bird had flown towards the 
 rising of the sun, and did not revisit the western hemisphere 
 till 10 days ago. Two days after that event I gave him the 
 special v^ — Pierce v. D. U., & Marsh v. Allen et a. — with 
 the pleas common rule form of agreement to be signed by 
 counsel & some minutes of slight alterations in the verdicts. 
 These you will see, no doubt, in Mr. Ich. B.'s poss'on. I 
 requested Mr. S. to examine, & correct, & say what addi- 
 tions D. U. proposed, expressing with all a wish that as time 
 pressed he would at an early day be ready to close the mat- 
 ter. I have not heard from him since. He has doubtless 
 been to Portsmouth ; at any rate has sent the papers to 
 I. B., &c. He spoke of adding E. W.'s will. Quere, in 
 that case would it be advisable to add any new matter on 
 our part, as the fact that John was not, & Rodolphus, then 
 alive, was the eldest son, & most loorthy, &c. 
 
 "I send verdict Hatch v. Lang — consult with Mr. 
 Mason, as you will in the whole matter, and send me answer 
 to my queries. 
 
 " Hatch V. Lang. 
 
 "1. Query. As to L. who is tenant for years only 
 pleading null disseisin — the writ charges him with a dis- 
 seisin. 
 
 "2. Spec. V. states that L. entered under lease, and was 
 actually possessed, & ever since hath continued in posses- 
 sion, &c. 
 
 '< Perhaps this is well enough ; the entry by D. Coll. or 
 H. does not imply expulsion.
 
 SPECIAL VERDICTS JUDGE SMITH. 283 
 
 "3. Should not pu7'pose of entry by D. Coll. viz., to put an 
 end to lease & extinguish all the right & title of L. under 
 the same, &c., be stated? See 2 A Blac 61, entry to 
 avoid a fine. 
 
 " 4. Should not jury find entry by L. on Hatch, & expul- 
 sion as stated in the writ? This seems necessary. 
 
 " Pierce v. D. U. 
 
 "The special v*^ I think should state Tr. D. U. guilty, 
 and not poor G. — the issue is so — the v. whether gen. or 
 spec, must find the issue. — In some forms of spec, verdicts 
 in ejectment there was no casual ejector, — the writ was 
 served on the real tenant as it always may be. 
 
 " Marsh v. Allen et a. 
 
 " Should not entry be made before plea that Tr. D. U. at 
 their request were admitted to defend, and they with Allen 
 et a. plead A. et a. not guilty? 
 
 " And should not spec. v. state that A. et a. entered by 
 the special order & command of Tr. of D. U. and ejected 
 Marsh? 
 
 ' ' And in all these spec . v' would it not be well to state 
 value & citizenship of parties, as in 3 Wheat. 10? 
 
 " Perhaps not essential. 
 
 "These hints are all that occur to me. I suppose the 
 writs, &c., are in the clerk's office; file the subpoenas. 
 Our final deeds, records, &c., need not be filed ; return me 
 in due time those now sent. 
 
 " I am now functus officio. — I cannot, at any rate, go to 
 Portsmouth ; Mr. M. and you must do all there. 
 
 "Please return the verdict H. v. L. to me, unless you 
 obtain R. J.'s signature at P. 
 
 " Mr. Freeman will require some time to make out papers 
 for Washington . ' ' 
 
 In his letter of December 11, 1818, to Judge Smith, Mr. 
 Farrar says : " Since I received your letter until this day, 
 Mr. Mason has been out of town. I have to-day consulted 
 him in regard to the spe. v^ He thinks the one in H. v. 
 L. is right in all particulars, but, if wrong in any matter
 
 284 DARTMOUTH COLLEGE CAUSES. 
 
 of form, the easiest way to cure it is to add the broad 
 agreement. As to it and 24th quereys he says that L. by 
 not pleading his tenantcy for years in abatement has waived 
 any exception on that ground, and by pleading nul dissn. 
 he admits the disseizin if Plat, has a title. He thinks the 
 purpose of entry, &c., sufficiently stated. As to L.'s con- 
 tinuing in the actual possession^ &c.,he thinks it is well 
 enough unless spe. v. is altered in the 4th particular so as 
 to find diszn. If this is alleged, the other should be left out. 
 
 " Pierce v. D. U. He thinks with you, that spe. v. should 
 be agt. D. U., & not agt. G. 
 
 " Marsh v. Allen, &c. He has had no time to look into 
 the authorities to see how landlord is admitted in Engd., 
 but his impression is that it should be done as you pro- 
 pose — 1st, entry, that D. U. admitted, &c. ; 2, then let 
 them join in the plea that A. & al. not guilty. He thinks 
 also that spe. v. should state that they entered by command, 
 &c.,of D. U. 
 
 " Mr. M. thinks also with you that value & citizenship 
 need not appear in the spe, v^ 
 
 " I have called on Ich. B. for the verdicts in the two last 
 cases, but he has them not, & says he has not seen them. 
 I will file the papers you have sent me, agreeably to your 
 directions. 
 
 "If there should be anything to forward this business, 
 which I can do after the papers are sent down, I will 
 attend to it with all diligence. 
 
 "I wish very much to obtain a copy of the spe. v. & 
 record in D. C vs. Woodward, for the purpose which I 
 have named to you. Will you have the goodness to loan 
 me your manuscript when a convenient opportunity occurs 
 of transmitting it? The argument I trust is prepared." 
 
 Upon the bottom of this letter is the following indorse- 
 ment in the handwriting of Mr. Mason : — 
 
 Mr. Bartlett has called with the papers in the Coll. cases. I 
 did not desire or expect to see anything more of them. He is 
 very urgent to have the newly discovered papers admitted. But
 
 PAPERS IN CIRCUIT COURT FARRAr's REPORT. 285 
 
 I believe we shall get rid of him without making any important 
 admissions except that his office copies are duly authenticated. 
 
 J. M. 
 
 11 Dec, 1818. 
 
 This letter was received by Judge Smith, December 16, 
 1818. 
 
 Farrar, in his letter to Webster, dated January 8, 1819, 
 says; "Herewith you have the copies of the three cases 
 certified from the Circuit Court ; the copy of an agreement 
 executed at present only by Mr. Mason ; a copy of certain 
 parts of Eleazer Wheelock's will ; copy of a grant to 
 trustees of D. Coll., June, 1807, and a copy of a memorial 
 of Jno. Wheelock, in the name & behalf of said trustees, 
 June, 1805. The copy of the letter of April 25, 1771, 
 from Ld. Dartmouth & others, with Mr. Allen's affidavit, 
 has been already forwarded. You will notice a provision 
 in Dr. E. Wheelock's will, that, in consequence of certain 
 property of his having gone to the benefit of the Charity 
 School, it is charged with the payment of an annuity to 
 Ralph Wheelock & C. This annuity, I understand, has 
 always been considered as due from the College, and paid 
 by the trustees. There is a provision in the act of June, 
 1807, by which the Legislature reserve to themselves the 
 right to control the trustees in respect to the appropriation 
 of the income of that grant. This grant remains unpro- 
 ductive. 
 
 ' ' I have received a line from Pres* Brown respecting our 
 book, and have conversed with Mr. Mason on the subject. 
 The Pres* is silent in regard to the plan of it, what the 
 introduction shall contain, &c. Mr. Mason is decidedly 
 of the opinion that there should be none; that is, that the 
 book should be wholly confined to the law or judicial his- 
 tory of the case, without any notice of the ecclesiastical or 
 political or any other part of the preliminary dispute. His 
 reasons are, that it is for the interest of the Institution to 
 bury any recollection of this dispute as soon as the cause
 
 286 DARTMOUTH COLLEGE CAUSES. 
 
 is ended, and not perpetuate the enmity of the individuals 
 or of the party by putting into a permanent form any thing 
 that shall compel them to look upon their own iniquity. 
 This is a matter that you and the President must decide, 
 and let me know how much and what matter the book 
 should contain. 
 
 " Please to acknowledge the rec'pt of these papers." 
 It will be noticed that, in the abstracts made by Mr. 
 Brown, the trustees in 1782, 1808, and in 1812 termed the 
 institution a University ; that they conferred degrees as 
 such ; that Dr. Wheelock, in his last will, recognized this 
 " Seminary " as a University, as well as in the instances to 
 which we have already alluded. 
 
 ABSTRACTS OF DEFT'S DOCUMENTS. 
 
 No. 1. E. Wheelock's "Narrative " &c. from 1768 to its incor- 
 poration with D. C. & removal to Han"" 1771, marked with a refer- 
 ence to p. 26, 30 & 35, where are passages speaking of the school 
 as a separate Inst'^ from the Col. & as connected with the Col &c. 
 
 No. 2. Extracts from y° Records of D. C. 1 vol. 
 
 " 1st. Meet'g held at Keen Oct. 1770. Whereas &g Pres't pro- 
 posed that the Board should exchange 200 a^ land given by his late 
 Exc'y B. W. to this Col for 400 a® given to the Pres* by the town 
 of Hanover. 
 
 " Meet'g May 28, 1773, Vote of thanks to Gov. Coun^ & Rep's 
 for grant of £500 for building new Col. 
 
 "Meet'g Aug. 26, 1773, Vote to receive ye 400 acr^ in lieu of 
 the 200 patented to y® s^ Dr. E. W. under y*^ great seal of this 
 Prov. by his Ex'y J. W. Esq. as by s'^ patent date Dec. 19 1771, 
 &c. 
 
 " M'g Oct. 22, 1770, Vote that Pres* employ Surveyor &c to 
 run the line & mark &c town of Landaff. 
 
 "M. Aug. 23, 1775. The several classes in Col & Studt^ in 
 Moor's Charity Sch^ preferred a petition addressed to the Hon' hie 
 Trustees of D Coll &c. 
 
 " % of Lands given to the Col. July 6, 1770, B. W^^ gave 500 
 a^ in H. on this. Col stands. 300 a« of which was by patent from 
 his Ex I. W'^'^ on 19 Dec. 1771 confirmed to the Trustees &c.
 
 defendant's documents. 287 
 
 "Meet'gSept. 20, 1782, Resolve styling this a University axid 
 themselves Trustees of the University of Dartmouth, &c. 
 
 " M'g Aug. 1812, Vote to confer Deg of A. B. on following 
 members of this University. 
 
 "M'g Dec. 23, 1788, Vote appt^ a Com^'^'^ to examine into 
 the relation of Col & Sch^ objects of each & application of funds 
 designated for particular objects &c. 
 
 " (M'g Ma}"- 7, 1789, consists of Preamble & Resolution to 
 which refer. ) 
 
 " Meet'g Feb. 1796, App of Josia Freeman to make division 
 with the Pres't of Moore's School of the township of Wheelock & 
 execute & receive deed of partition. 
 
 "M'g Aug. 1801. Pres* W. as Pres* of Moore's Ch*y school 
 proposes to the Trustees to take some superintendence of the 
 school, that they audit his %^ &c. Voted to comply with the pro- 
 posal. A Com*^*^^ chosen to confer with the Pres* on the subject & 
 report to the next meeting. 
 
 "M'g Aug. 1805. The s*^ Com*®® reported at the last session, 
 that the Trustees unite with the Pres* in an application to the 
 Legislature to pass an act so far explaining & extending the act of 
 Incorp^ of s^ Insf^ as to enable & make it the duty of the Tr 
 with the Pres*for the time being to superintend Moor's School &c 
 which rep* was at this session referred to a new coram*®® who 
 reported a draft of an act &c. Voted to accept the same. 
 
 " M'g Aug. 1807. Resolved to accept the trust created by the 
 act of June 18, 1807, Moore's School. 
 
 "M'g March 30, 1790. Return of land granted 1789. Tract 8 
 m^ square. 
 
 ",M'g May 1789. Vote of thanks to Pres* Wheelock for his 
 agency in obtaining the grant of 8 miles square in this State & his 
 agencies in Ver* in obtaining township of 6 m* square for Col & 
 Moore's Sc^ 
 
 "M'g Jan'y 7 1808. Resolve to establish Prof^P of Law at 
 this University as soon as adequate means shall be furnished." 
 
 No. 5. Letter of atty E. W. to Nath' Whitaker to receive 
 money for the use of an Indian Ch^ school and to supp* mission- 
 aries. Date May 6, 1766. 
 
 No. 6. Form of Deeds, according to which Donors in the 
 origin of the Col. gave lands. " Whereas it has pleased his Ex>' J.
 
 288 DARTMOUTH COLLEGE CAUSES. 
 
 W*^ with advice of his Maj^'^ Council for the instruction of 
 Indians began by E. W. as well as the education of others, to 
 erect & constitute a Col. by the name of D. C. & by Charter 
 under the great seal to endow the same with many noble privileges 
 & franchises as well as to ivdvke generous donations towards a 
 fund &c. Therefore, in consideration &c." 
 
 No. 10. ExtractfromE. W.'^willAp. 2, 1779. "Andwhereas 
 I have founded on my own tenement and at my own expense an 
 Indian Charity School, now called Moore's Ch^ School which from 
 small beginnings has through much labour, application & care for 
 more than 20 years last past under a series of most signal & evident 
 smiles of divine providence arisen to its present state of impor- 
 tance & appears to exhibit a fair prospect of great usefulness 
 towards the christianizing & civilizing the natives of our Ame'"^ 
 wilderness which is its first object, & of conciliating establishing 
 & perpetuating a firm & lasting friendship & peace between all the 
 numerous tribes & the Am. colonies as well as of great edification 
 to the ch of God among the Eng^ & is now incorporated by 
 royal charter into and with D. C. which seminary is by s"* 
 charter endowed with all the powers, privileges & immunities of 
 a University, as by said charter may fully appear. And whereas 
 it appertains unto me as founder & proprietor thereof as 
 well as by grant in said charter to dispose of said school & 
 all donations and grants of land «fe other interests any way given 
 or granted for the benefit & use of s^ school in the best manner 
 for the well being of the same & appoint my successor in the office 
 of Pres* of s*^ seminary, I do therefore nominate constitute and 
 appoint my son J. W. to be my successor in s*^ office of Pres* of 
 my Ind Chy Sch' & D Col with & into which s^^ school is now incor- 
 porated & to him I give & grant all my right title & claim to s'^ 
 Seminary & all the appurtenances, interests jurisdictions power 
 & authority to, in & over the same belonging to me as the founder 
 of it or by grant in the charter to me, or by any other ways or 
 means whatsoever." 
 
 No, 11. Letter from Peter Gilman to E. W. Date Exeter Feb. 
 3, 1770. "His Ex^ Gov. W. having appointed me in the charter 
 for D. C. one of the Trustees, I was much averse &c knowing my 
 incapacity «&;c but as the Gov insisted «fec I was prevailed upon &c 
 Col. Phelps informs me the mode of fixing upon a plan for the
 
 defendant's documents. 289 
 
 Col is for the trustees to write their minds to you &c. I am 
 unacquainted & no doubt you will fix it right &c but should think 
 Haverhill or some other river town not far distant most suitable &c. 
 
 No. 13. Grant of Landaff. Date Jan. 19, 1770. Recorded 
 Jan. 22, 1770. 
 
 No. 14. Grant of land in Hanover, Dec. 19, 1771. "Whereas 
 we did erect & incorporate a College &c & whereas the Tr has 
 begun to erect buildings on a tract of 500 a. ungranted therefore 
 give &c 300 acres part of s'^ 500 a, & being the spot on which 
 Col stands to Trustees and in consideration &c give &c the re- 
 maining 200 a. to E. W. all which on certain conditions." 
 
 No. 15. Report of Commissioners to examine %s of Moore's 
 Ind Chy Sch^ June 11, 1789, finding a balance of £1,190, 10, 1 
 st'^ in favor of late & pres* Dr. W. & that s^ expenditures have 
 been for the use of the sch' & not for the benefit of the Col. 
 
 No. 16. Vote of May 7, 1789. This is the same as in No. 2, 
 disclaiming control of funds of Moor's Sch'. 
 
 No. 17. Deed of trust E. W. to Earl Dartmouth & al, May 
 31, 1768. Recites that he had at his own risk and expense founded 
 a chy sch^ — that he had by proper instrument under seal 
 appointed his successor in the care & gov*^ of the same, requiring 
 him & his successor to make the Tr in Eng acquainted with his 
 doings & the doings of the Tr in America ; that in the same 
 instrument he had appointed 7 other gentlemen with his successor 
 to be Trustees here, authorizing them to confirm the appointment 
 of his successor or choose one of their own number in his stead ; 
 fill vacancies in their own number — fix laws, rules & orders for 
 the government &c. Therefore appoints Earl Dartmouth & 8 
 others to be Trustees in Eng'^ & grants to them all property 
 received or to be received in Eng"^ for the use spec**^. Author- 
 izing them to disapprove of his successor & in case of a new nomi- 
 nation to be agreed upon by both boards & a negative on all 
 proceedings if here — to fill vacancies in their own number. And 
 binds himself not to alter this plan without their consent, &c. 
 
 No. 18. Grant of land, 8 m^ square, Feb. 5, 1789, and $900 
 June 15, 1805. 
 
 No. 19. Examination of Pres* W.'s %s of Moor's School by 
 comm**^® of Trustees July 21, 1805 ; balance in favor of the Pres* 
 $1,869.75. 
 
 19
 
 290 DARTMOUTH COLLEGE CAUSES. 
 
 No. 21. Letter of Earl Dartmouth & als to E. W. Api 25, 
 1771, warning him not to apply the funds to the use of D. C. but 
 to educate Indians, & maintain missionaries &c. See whole 
 letter. 
 
 No. 22. Letter from E W to Govr J W^^, Api 25th 1770. 
 Hoped to meet him in Coos to fix upon a plan for the* Col to his 
 satisfaction. Gov life & sinews of the whole. Trustees in Con- 
 necticut unwilling to take any part in determining location &c. 
 
 No. 23. Memorial of Tr to Legislature, Nov. 24, 1804, praying 
 that its financial concerns may be investigated by a com^^^ and 
 considered by the Legislature. 
 
 No. 25. Power of Att^-, E. W. to Earl of Dartmouth & others 
 to receive in trust monies &c in his name for the use of his Indian 
 school. 
 
 No. 26. Memorial of Tr to Legislature Dec. 1, 1803, saying 
 among other things ' ' as individuals they have no interest in its 
 success & prosperity than what is common to every member of 
 the Legislature. As visitors of the Col this responsibility is more 
 immediate but not more real or extensive than that of the Legisla- 
 tors of the State." The grants collectively under the former & 
 present government have not been ultimately beneficial to the Col 
 to any considerable degree. 
 
 No. 29. Act of June 10, 1807. Incorporating the Pres* of 
 Moor's Ch^ Sch\ and giving the Trustees of the Col certain pow- 
 ers in relation thereto. 
 
 No. 30. Will of John Wheelock, March 19, 1817. 
 
 As to the publication of Farrar's report, Putnam, in his 
 letter to Farrar, dated at Pittsfield, Massachusetts, October 
 2, 1817, says : " Ever since I left you I have been more and 
 more impressed with the importance of printing the argu- 
 ments on the Coll. question. T have conversed much with 
 gentlemen on this subject. The friends of the Coll. wish 
 very much to read the arguments — its enemies pretend to 
 desire the same. I think it important to print for many 
 reasons — if the court should decide against the Coll. the 
 public by reading will have an opportunity to judge what 
 they 7nust be, — if they decide in favor of Coll. and against 
 the University, printing the arguments will make the case go
 
 DOCUMENTS — FARRAR's REPORT — DECISION. 291 
 
 off triumphantly — it will shame & confound those wise 
 folks, those half-way friends that Iihyg pretended to doubt. 
 
 " I think there can be no doubt al)Out the sale of the book. 
 My brother, who is with me, says he should be almost will- 
 ing to be responsible that every student of Coll. would take 
 a copy. I think a subscription paper should be passed 
 around, — particularly at Hanover. 
 
 * ' I hope you will have it all ready for me to read by the 
 time of my return. 
 
 ' ' I calculate to be at Saratoga Springs about two days — 
 whether I shall remain there will depend upon the state of 
 things as I may find it. 
 
 "I think my health is improved — hope that God will 
 return me prepared to engage in my great labors. Remem- 
 ber me in your prayers. I calculate to pass down to the 
 city of New York & return thro' Conn. & Rhod. Isl*^." 
 
 In his letter to Farrar, of November 15, 1817, Brown 
 says: "We think it more important than ever that the 
 Exeter argument & the Plymouth decision should be 
 printed in a book. I mentioned the subject to Judge Smith 
 at Plymouth, and have since named it in a letter to him. I 
 believe he will not object. Have the goodness to attend to 
 the affair without delay, & let Mr, Lamson superintend the 
 printing. In my opinion, the sales, if the copyright is 
 secured, would bring a handsome profit ; and, by the way, 
 might not this be turned to the pecuniary benefit of the Col- 
 lege? 
 
 ' ' The decision has occasioned the defection of one of our 
 students only, and an event occurred on Tuesday evening 
 last, which, I believe, may well put all the hopes of the 
 Univ. at rest, of an increase of their numl^er by the 
 diminution of ours. This was an attempt to seize the 
 Libraries of the private Societies in College. Prof. D, & 
 C, Mr. H. Hutchinson, Messrs. Cook and Bissel & fifteen 
 or twenty more of the same staniD commenced the assault 
 between 7 & 8 o'clock. The Frater. were then in meeting.
 
 292 DARTMOUTH COLLEGE CAUSES. 
 
 They immediately adjourned, about one half repairing to 
 the S. F.'s Lib., the other half to their own. In five 
 minutes the whole body of the students had collected. A 
 parley ensued. The Professors and their company sur- 
 rendered themselves as prisoners and were conducted into 
 an adjoining room until the Societies had removed all their 
 books to a place of safety. The party were then conducted 
 out, one by one, and attended by one or more of the 
 students to their lodgings. The next day the Frater. pro- 
 ceeded to expel a member of the Univ. who aided the 
 Prof in the attack, and in the evening the S. F.'s expelled 
 two other members of the Univ. & summoned their 
 brothers T>. & C. to answer to certain charges brought 
 against them. These gentlemen, I understand, are since 
 expelled. 
 
 "The Univ. seems much alarmed for its credit. Mr. 
 Allen has issued an official bulletin, which is a sort of 
 apologetick statement, designed to sooth the feelings of one 
 part of the community, & to increase the violence of the 
 other. Prosecutions are threatened by the Prof. & Co. 
 I have some fears for the consequences. In the meantime 
 the students are perfectly regular, & attentive as usual to 
 their studies. The Med. Stu. joined heart & hand in 
 rescuins: the Libraries from the hands of violence. 
 
 *'A somewhat extensive correspondence has become 
 necessary since the Plymouth decision, and this must 
 excuse the hasty, broken manner in which I write." 
 
 Judge Smith, in his letter to Mr. Brown, of December 
 17, 1818, says: "I cannot persuade myself an argument 
 on Coll. side will be called for. When all is over there 
 will be time to get up a report which may be, I think, 
 compressed into 1 vol 
 
 "The arguments, excepting always Mr. Webster's, may 
 be abridged in bulk without suffering any loss in weight." 
 
 By an arrangement between Webster, IVIarshall, Wash- 
 ington, Story, and Wheaton, Trustees v. Woodward was 
 
 I
 
 LIBRARY TROUBLES FARRAR's REPORTS. 293 
 
 first reported by Farrar ; and, as before suggested, Whcaton 
 made up his report from Farrar' s. The reasons for it will 
 appear in the following correspondence. 
 
 Mr. Brown, in his letter to Judge Smith, of January 4, 
 1819, says: "Your two letters, after going to Hanover, 
 reached me here on Saturday, p. m., and in a few minutes 
 afterwards Mr. Mason arrived from Portsmo. & gave us an 
 account of what had been done. He also brought copies 
 of the papers, which had been agreed to, furnished him by 
 the diligent pen of Mr. Farrar, 
 
 " Anticipating the course of the Univ. in this business, 
 I had employed a few days in investigating the history 
 of M's school, &c., and I believe I had ascertained nearly 
 every fact which their papers bring to light. All the * nar- 
 ratives ' I could obtain (seven in No.), including all except 
 one (of 1768), I brought down to Mr. W., as also the 
 ' Memoirs of W.' & Dr. J. W.'s ' Observations on Facts ' 
 addressed to the Vt. Legislature in 1807. Mr. W. will 
 take these with him. If, on my return to Hanover, I can 
 find another nar. No. 4, it shall be sent to you. 
 
 "As to the printing, I have named the subject to Mr. 
 Mason, & requested him to furnish his argument. He 
 says he will think of it. I believe he will find no difficulty 
 in consenting to the general wish. I have requested Mr. 
 Farrar to undertake the superintendence of the printing, and 
 to insert the matter which may be proper & necessary to 
 make out the case, beginning with the act of the Legisla- 
 ture, June, 1816. Mr. Farrar will confer with you ; and I 
 have only to desire that you will have the goodness to 
 prepare your argument as soon as may be convenient, as 
 it will be important to have the book ready for delivery as 
 early as may be after the decision. 
 
 " My health has not sufiered by my journey to this place. 
 I trust, with proper care it will soon be reestablished. 
 
 " Our controversy has been long & close, but now seems 
 to be drawing to a close. Whatever depends on men, I know,
 
 294 DARTMOUTH COLLEGE CAUSES. 
 
 is in some decree uncertain ; but from all I can learn here 
 and elsewhere, I have a great degree of confidence that the 
 cause is gained. Should this be the event (and indeed 
 whether it be or not), we shall always entertain a lively 
 sense of obligation to those gentlemen who have ' stood in 
 the gap ' & so nobly sustained the contest. And may we 
 not forget our obligations to him, who has bestowed on our 
 wisest counsellors their talents, & by whom ' princes decree 
 justice.' " 
 
 This letter was written in Boston, and received by Judge 
 Smith on January 9, 1819. 
 
 The reference to what had been done, and what its author 
 had learned in Boston " and elsewhere," can hardly be mis- 
 taken. 
 
 In his letter of February 4, 1819, to Farrar, Webster 
 says : "I suppose all the judges vnW give opinions to Mr. 
 Wheaton to be published in the College cause. I have not 
 seen or heard any but the chief justice's, but I have no doubt 
 they will be very full and able. I think it would be very 
 well to get along the book, but there is one difficulty in it, — 
 these opinions are the property of the reporter, his reward 
 for his labors is principally from the sale of his book, and 
 this case ^\dll make a principal part in his next volume. 
 
 " Mr. Wheaton is an excellent lawyer and in all things 
 disposed to do well and act liberally, — still he might think 
 it not his duty to give gratuitously copies of these opinions 
 as the sale of your book would a little interfere with his . I 
 have thought of offering him a hundred dollars for copies of 
 these opinions if you think it best to get them. This will 
 compensate him for the loss of a sale of some of his volumes. 
 
 " The book, if printed at all, must be printed at Boston, 
 & we must get Judge Story to inspect the proof-sheets of 
 the opinions. 
 
 " I suppose we can get the book out by the first of June 
 or the middle of May, supposing the work to commence 
 pretty soon after my return.
 
 farrar's report. 295 
 
 " Please let me hear from you on this subject. 
 
 "If it should 1)0 necessary I could get them copied here 
 and sent on, so as to get the book out in ApiHl — but I sup- 
 pose May is just as well." 
 
 Thompson, in his letter to Farrar, of February, 18, 1819, 
 says he has "a letter from Mr. Webster, saying he shall 
 bring the written opinions of each judge." 
 
 Webster, in his letter to Farrar, of March 12, 1819, says : 
 " I can now furnish copies of the opinions." 
 
 Webster, in his letter to Farrar, of March 29, 1819, says : 
 *' I believe Mr. Wirt & Mr. Hopkinson are both now occu- 
 pied in writing out their respective speeches." 
 
 Brown, in his letter to Farrar, of March 31, 1819, states 
 that $2,500 must be raised by subscription for the book; 
 and that more than half of it was raised before he left Boston. 
 
 Webster, in his letter to Farrar, of April 3, 1819, says : 
 " I am expecting Wirt's argument daily." 
 
 John Holmes, in his letter to Farrar, of May 10, 1819, 
 says: "I apprehend it will be impossible to prepare my 
 argument at length in the Dartmo. College case from very 
 imperfect minutes. If, however, you can wait a short time, 
 & will transmit me Mr. Wheaton's minutes, I will make the 
 attempt. Please inform me how soon you must have it." 
 Farrar appended a note to Holmes, saying that Wheaton's 
 notes * ' are probably so brief as to afford you little or no 
 assistance," not to be drawn from your " own notes." 
 
 ]VIr. Hopkinson' s argument is supposed to be reported 
 at length by Farrar. The facts are these : Hopkinson had 
 prepared an elaborate brief before arguing the cause. He 
 furnished it to Mr. Webster. Webster wrote out an argu- 
 ment for him, for Farrar. It comprises the entire argument 
 as reported, except about two pages. These were added 
 by Hopkinson, on the topics suggested by Mr. Webster. 
 Both the brief and the argument, as written out by Web- 
 ster, are in our hands. It is safe to say that Mr. Webster's 
 draft did not diminish the force of the statement made by 
 Mr. Hopkinson in his brief.
 
 296 DARTMOUTH COLLEGE CAUSES. 
 
 Mr. Hopkinson, in his letter from Bordentown, New 
 Jersey, dated May 2, 1810, to Webster, says: "I return 
 your manuscript with many thanks for the trouble you have 
 taken to give me a respectable position in a book whose 
 importance I estimate as highly as you do. I have made 
 a small addition to the argument you have prepared from 
 my notes ; and also furnish some remarks on the topicks 
 you have suggested. 
 
 " I continue my intention to visit Boston in August ; but 
 as I shall see you on the Delaware before that time, I shall 
 have an opportunity to fix my visit with more precision. 
 I will soon write again ; but must now put up my packet 
 for you." 
 
 Webster, in his letter to Farrar, of June 10, 1819, says : 
 " I have written to Judge Story enclosing your letter, and 
 desiring him, if he thinks proper, to write a line to the 
 clerk directing an order to issue for plea, answer or 
 demurrer to be filed Septr. 1. 
 
 " I have now the Washington arguments, & the opinions 
 have heretofore been forwarded to you to Exeter. I shall 
 send the arguments the first opportunity. 
 
 " On reflexion I wish the quotation from Stillingfleet 
 now in my argument to remain there as it is, and the 
 additional quotation to be put into a note." 
 
 Wheaton, in his letter from New York, of August 2, 
 1819, to Farrar, says: "Will 3'ou have the goodness to 
 send me by return of mail a copy of Mr. Hopkinson' s 
 argument in the Dartmouth College case. Mr. Webster 
 desired me to write you for it, and as I am now rapidly 
 approaching the case, I do not wish to be without it. 
 
 "I hope you had a pleasant journey home. 
 
 " I was unable to prevail on Judge Livingston to give us 
 his opinion." 
 
 In his letter of June 19, 1819, to Farrar, Webster says : 
 ' ' I am placed in a very disagreeable situation in regard 
 to this booh, & one from which I must in some way extri- 
 cate mvself.
 
 FARRAR's report DELAY IN PRINTING. 297 
 
 " I have become accountable for the 100 dols. to Mr. 
 Wheaton, & have paid him also 15 or 20 dlls. for copies — 
 all this I care nothing about. But where is the book, & 
 when is it coming out? I have promised Mr. Wheaton a 
 printed copy for him to publish by. He wants it ; & with 
 all my inquiries, both to you and Mr. Lamson, I can get 
 no answer nor any information. In the meantime I hear 
 that Mr. Mason's argument is badly printed, and that the 
 whole thino: is about as bad as it can be. What is to be 
 done ? In the first place you must send me back Holmes' 
 & Wirt's argument as it is, for Wheaton. He must have 
 it. He needs it now & has no copy. 
 
 " I plainly see you will not have it in print this month, 
 whereas he wants it this very day, wherefore please return 
 it by the mail carrier on Monday, that I may forward it to 
 him. His book — at least this case — will be in print as 
 soon as you will need it, at any rate he must have it. 
 
 " I am mortified beyond measure at the progress this 
 printing job makes. I do not know that you are at all to 
 blame about it, but I regret the whole undertaking. If 
 you'd have consented that it should have been printed 
 here, it wd. have been done long ago, & if gentlemen wd. 
 not have furnished their arguments, it would have come 
 out with't them. 
 
 " Do -vvi'ite to me on Monday, sendg. me back Holmes & 
 Wirt. 
 
 " I think it but right and fair to suggest to Mr. Lamson 
 that, unless this book is well printed on good paper & free 
 from errors, the case at Washington will probably be 
 printed here, in a proper manner. 
 
 In his letter to Farrar, of June 23, 1819, Webster says : 
 ' « I send you a copy of the pages you mentioned beginnmg 
 a little back of the third and going a little beyond the 4th, 
 so as to sho^v the connection. Please examine it and see if 
 it appears to be right and to make joints. — I shall detain the 
 arg't till you can answer this, so that if anything is
 
 298 DAETMOUTH COLLEGE CAUSES. 
 
 wrong you can let me know ; I believe I have followed your 
 directions. 
 
 " I enclose you also a minute furnished by Judge Story, 
 to direct the manner of stating the opinions. 
 
 " I care less about the time when this book comes out 
 than the manner. I am no great judge of these things, but 
 if it should not be thought to be well printed, I shall wish 
 it at the bottom of the Red Sea. 
 
 " I very much wished to see my part of it as it came out. 
 But in this I cannot probably be gratified. It is not very 
 material, but it is essential that the judges opinions be ac- 
 curately printed. 
 
 " I made myself answerable for that both to the chief jus- 
 tice & Judge W. ; I am fearful of a thousand blunders in all 
 these opinions. In Judge Story's particularly, the citations 
 are so numerous, there will be errors which will not be cor- 
 rected unless he sees the proof, and as the press has waited 
 for everybody else, I think in common decency he ought to 
 be furnished with the proofs of all the opinions. He will 
 attend to them immediately and return the proofs in all cases 
 the next mail. I am persuaded that in no other way will 
 the printing of these opinions be accurate , ' ' 
 
 The directions of Story as to the form of stating the 
 concurrence of the other judges was probably lost in the 
 printing-office, but in his letter of July 3, 1819, to Farrar, 
 he says : "It appears to me to be of so great importance to 
 have the opinions of the judges of the Supreme Court of 
 the United States printed with minute accuracy in the 
 Dartmo. College case, that I must beg you to send me 
 the proof sheets. You need not send the copy of the MSS. 
 as my recollection will generally aid me. 
 
 " I will send you the proof sheets from time to time, by 
 the return of the mail direct to Portsmouth or Exeter, as 
 you please." 
 
 Marsh, in his letter to Farrar, of January 21, 1820, says, 
 in relation to the suit, Allen v. College: "You may have
 
 ALLEN V. COLLEGE. 299 
 
 been informed that the Rev*^ William Allen, as executor of 
 the last will &c of the late Dr. J. Wheelock, has commenced 
 a suit against the trustees of Dartmouth College for the 
 recovery of certain promissory notes, which have not been 
 hitherto questioned. We now think however that we have 
 suffered so much by the management of Dr. W., Mr. Allen 
 & their friends, that if any use can be made of the judg- 
 ment for costs in the actions lately decided in the circuit 
 court, or any new suit for mesne profits or the like, to ofi'set 
 against this demand, or for the purpose [of] efiecting a 
 settlement on more favorable terms, it will be right to do it. 
 At a meeting of a committee of the trustees in Dec. last it 
 was agreed that Mr. Olcott should request you to procure 
 the cost in these suits taxed ; this I presume has been done. 
 I have also to request you to institute a suit for the mesne 
 profits of the action in which I was plflT and Mr. Allen and 
 others defendants. I think we may make some use of these 
 things beneficially in a settlement with Mr. Allen, and it is 
 certainly perfectly reasonable that he should pay us these 
 costs, and all damages done to the public buildings, library 
 and apparatus, and what injury we sustained by being de- 
 prived of their use. 
 
 " Can the trustees recover damages for the occupancy 
 and use of the buildings, from the time possession was taken 
 of them, under the University, till they were conveyed to 
 those by whom these three actions were instituted ; if any 
 doubt exists in anything of this kind, will you consult Mr. 
 Mason, who if he is not tired of hearing of our D. C. troubles 
 will doubtless afford his opinion." 
 
 The writ of Allen and Wheelock against the College, to 
 which we have before referred, contained five counts. Three 
 were for promissory notes ; the fourth was for an account 
 stated, $2,027.70 ; and the fifth was for $10,000, for work, 
 labor, care, and diligence of the second WTieelock as presi- 
 dent of Dartmouth College, etc. 
 
 It was undoubtedly intended to cover by the latter count
 
 300 DARTMOUTH COLLEGE CAUSES. 
 
 certain matters about which Wheelock consulted Webster, as 
 before stated. The trustees put the cause into the hands of 
 Judge Smith as counsel, who, after examination, instructed 
 them that he was unable to discover any valid defence. 
 
 We have mislaid the elaborate letter of Judge Smith con- 
 taining his opinion, referred to in the following, by Thomp- 
 son and cannot, therefore, insert it. 
 
 Thompson, in his letter of April 26, 1820, to his brother- 
 in-law, Olcott, says : " I have looked at the enclosures you 
 sent me, repeatedly, & from what I collect from them am of 
 opinion that Mason's ideas as to the course we ought to 
 pursue are just, & would be more to our credit & profit 
 than any others. 
 
 " Smith writes like himself. Possibly the nature of the 
 document or documents sent him may justify the style of 
 his letter. 
 
 " Even in that case, a more courtly address would have 
 answered as good a purpose. If D. U. performed the con- 
 ditions precedent to which Smith alludes, & not only 
 accepted the release, subject &c., but made the sequestra- 
 tion he mentions, I do not see how our court can consist- 
 ently with, their printed opinion, now say the D. U. is a nul- 
 lity, or a distinct corporation from D. C. Without adopt- 
 ing the Washington doctrine they must pronounce the 
 release operative. If they recognize the doctrine held by the 
 S. C. of the U. States as the legitimate doctrine, and which 
 ought now to be held, it might prepare the way to institute 
 the proposed suits, if, all circumstances considered, it 
 be deemed expedient, or what would be better still, in my 
 opinion, it might lead to a favorable accommodation with 
 Allen & others who are liable. Allen however I fear, is 
 made of such unconquerable obstinacy that he would never 
 yield. Of this you can judge better than I can. 
 
 " If D. U. did all that was necessary on their part to ren- 
 der the release operative, I should think it expedient, if 
 allowable, so to plead as to try the validity of the release.
 
 JUDGMENT FOR ALLEN. 301 
 
 and the authority of the treasurer to give promissory notes. 
 If both points could not be tried, or rather if the pleas 
 are inconsistent, which by the way I do not perceive, I 
 should prefer placing the defence on the ground of the 
 treasurer's want of authority to bind the corporation by 
 promissory notes. But I caution you against placing 
 reliance on my opinions, unless they accord with your own. 
 
 " It is so long since I have attended to subjects of this 
 kind that I feel much less able to advise than I ever was. 
 I hope Ml'. Marsh will instruct you fully. If you do not 
 hear from him at large on the subject, I hope you will with- 
 out fail ride over and see him." 
 
 Marsh, in his letter to Farrar, of May 10, 1820, says : 
 " As to the defence against the notes in suit, I hope Mr, O. 
 and Judge Smith will profit by Mr. Mason's hint that the 
 treasurer cannot by note bind the corporation." 
 
 Wiser counsels prevailed. This attempt on the part of 
 the old trustees to stand upon the decision made by the 
 State court, and to disregard that which they had obtained 
 from the Supreme Court of the United States, failed. 
 
 At the May term, 1820, judgment was accordingly entered, 
 by agreement, in favor of the plaintiffs, for $7,886.41 dam- 
 ages, and for their costs, and execution duly issued thereon 
 May 31, 1820 ; but twelve years dragged their slow length 
 along before it was cancelled by payments.
 
 CHAPTER XII. 
 
 MAKSHALL'S OPINION THE ONLY ONE READ — DUV ALL DIS- 
 SENTS — THE OTHER JUDGES PRESENT CONCUR EST^ THE 
 RESULT — WASHINGTON AND STORY FILE OPINIONS WITH 
 THE REPORTER — LIVINGSTON AND JOHNSON — THEIR 
 VIEWS IN TRUSTEES v. WOODWARD, AND STURGES v. 
 CROWNINSHIELD — JOHNSON'S OPINIONS IN FLETCHER v. 
 PECK, AND OGDEN v. SAUNDERS. 
 
 The judges who sat in Trustees v. Woodward were John 
 Marshall and Bushrod Washington, of Virginia ; William 
 Johnson, of South Carolina ; Brockholst Livingston, of New 
 York ; Thomas Todd, of Kentucky ; Gabriel Duvall, of 
 Maryland ; and Joseph Story, of Massachusetts. 
 
 Webster, in his letter of February 2, 1819, to his brother, 
 written in court, after the reading of Marshall's opinion, says : 
 "All is safe. Judajment was rendered this mornino; reversing: 
 the judgment in New Hampshire. Present : Marshall, Wash- 
 ington, Livingston, Johnson, Duval and Story. All concur- 
 ring but Duval ; and he giving no reason to the contrary. 
 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." 
 (1 Webster's Priv. Cor. 300.) In his letter, written in the 
 court-room at the same time, to Judge Farrar, he says ; 
 "A judgt. has been pronounced in our favor this morning: 
 five judges out of the six judges present concurring. I 
 believe Judge Duval is the dissentient. The opinion was 
 pronounced by the chief justice. It was very long, and 
 reasoned out from step to step. It did not cite cases, I 
 understand an opinion has also been drawn by Judge Story, 
 
 ( 802 )
 
 CAUSE DECIDED. 303 
 
 which will probably be given to the reporter." (Note to 
 Mem. of Farrar.) 
 
 In his letter, written the same day, to Judge Smith, he 
 says ; "I have the pleasure to tell you that the College 
 cause has been decided in our favor. The chief justice, 
 "Washington, Livingston, Johnson, and Story, Justices, 
 concurrentibiis ; Duval, Justice, dissentiente ; a6se?z<e, Todd. 
 The opinion was delivered by the chief. I believe other 
 judges also drew up opinions, which I hope to see pul)- 
 Hshed." (1 Webster's Priv. Cor. 299, 300.) 
 
 In his letter, wi'itten the same day, to Mr. Brown, he says : 
 "All is safe and certain. The chief justice delivered an 
 opinion this morning, in our favor, on all the points. In 
 this opinion, Washington, Livingston, Johnson and Story, 
 justices, are understood to have concurred. Duval, Justice, 
 it is said, dissents. Mr. Justice Todd is not present. The 
 opinion goes the whole length, and leaves nothing further 
 to be decided. I give you my congratulations on this occa- 
 sion, and assure you that I feel a load removed from my 
 shoulders, much heavier than they have been accustomed 
 to bear. ' ' ( 1 Webster' s Priv. Cor. 300. ) 
 
 In his letter to Mason, of February 4, 1819, from whicli» 
 we have already quoted, he says: " Since my arrival here 
 I have been all the time in court, and can therefore as yet 
 say nothing more than I have seen and heard here. Most 
 of the judges came here with opinions drawn in the col- 
 lege cause. * * * Five of the judges concurred in 
 the result, and I believe most or all of them will give their 
 opinions to the reporter. Nothing has been said in court 
 about the other causes. Mr. Piukney says he means to 
 argue one of them ; but I think he will alter his mind. 
 There is nothing left to argue on. The chief justice's opin- 
 ion was in his own peculiar way. He reasoned along from 
 step to step, and, not referring to the cases, adopted the 
 principles of them, and worked the whole into a close, con- 
 nected, and very able argument. Some of the other judges,
 
 304 DAETMOUTH COLLEGE CAUSES. 
 
 I am told, have drawn opinions with more reference to 
 authorities." (Mem. of Mason, 213, 214.) 
 
 Mr. Hopkinson, in his letter to Mr. Brown, of February 
 2, 1819, — following the line of that part of Mr. Webster's 
 argument which was "left out" of the report, — says: 
 " Our triumph in the college cause 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 coi'porations of this description from 
 legislative despotism and party violence for the future. The 
 court goes all lengths with us, and whatever trouble these 
 gentlemen may give us in future, in their great and pious 
 zeal for the interests of learning, they cannot shake those 
 principles which must and will restore Dartmouth College 
 to its true and original owners." (1 Webster's Priv. Cor. 
 301.) 
 
 The italics are ours. The meaning of the words, '■^ all 
 lengths,'' is to be read in the light of Webster's letter to 
 Mason, of April 13, 1819, in which he says: " As to the 
 college cause, you may depend on it that there will be diffi- 
 culty in getting delay in that case, Tvdthout reason. I flatter 
 'mvself the judge will tell the defendants, that the new facts 
 which they talk of, icere presented to the ininds of the judges 
 at Washington, and that, if all proved, they would not have 
 the least effect on the opinion of any judge ; that unless it 
 can be proved that the king did not grant such a charter as 
 the special verdict recites, or that the New Hampshire gen- 
 eral court did not pass such acts as are therein contained, 
 no material alteration of the case can be made." (Mason's 
 Mem. 223.) The italics are ours. Webster here uttered, 
 not prophecy, but fact. 
 
 Judge Living-ston took his seat on the bench of the Fed- 
 eral Supreme Court at the February term, 1807. Story 
 came to that bench in 1812. From that time, till Living- 
 ston's death, Story had greater influence over him, if
 
 JUDGE JOHNSON STOKY's OPINION. 305 
 
 possible, than even Kent had. He published no opinion in 
 Sturses V. Crowninshield, and we are not aware that one 
 exists in an accessible form. Story was very ambitious, and 
 naturally desired to act as the organ of the court and to 
 deliver its opinion in a case of so much importance ; and 
 Livingston as naturally desired that his friend should have 
 that opportunity. In this, as in other important cases, 
 Story had the good sense and tact to submit his opinion for 
 examination and criticism to those upon whose heads and 
 hearts he could rely, before it was considered by his 
 brethren. 
 
 Judge Prescott, in his letter of January 9, 1819, to Story, 
 says : "I have read your opinion with care and great 
 pleasure. * * * x see nothing I should wish altered 
 in it. I hope it will be adopted without diminution or sub- 
 traction.'' Livingston, in his letter to Judge Story, of Jan- 
 uary 24, 1819, says: "I return your opinion in the case 
 of Dartmouth College, which has afforded me more pleasure 
 than can easily be expressed. It was exactly what I had 
 expected from you, and hope it will he adopted without 
 alteration. What you say of the contract of marriage is a 
 complete answer to the difficulty made on that subject, and 
 I am not sorry that you have taken notice of the act of the 
 legislature dissolving this contract, which has been passed 
 in this State. As to the eJEfect of the separation of the two 
 countries on the charter of this college, in addition to what 
 you say, it appears to me that its existence is admitted by 
 the very acts which are complained of." (1 Life of Story, 
 by his Son, 323, 324.) A comparison of Livingston's let- 
 ter with Story's opinion, as published by Farrar, shows 
 that it was afterwards modified. How radical these changes 
 were, we shall probably never know. 
 
 The true construction of the obligation clause was a vital 
 point in Sturges v. Crowninshield. This, though it tested 
 the constitutionality of the New York bankrupt law, was a 
 Massachusetts case. It arose in Judge Story's circuit, and
 
 306 DARTMOUTH COLLEGE CAUSES. 
 
 was taken from the brief term of the Circuit Court which 
 commenced October 15, 1817, to the Supreme Court, upon 
 the formal certificate that the judges of the Circuit Court 
 were opposed in opinion upon the following questions : — 
 
 " 1 . Whether, since the adoption of the Constitution of the United 
 States, any State has authority to pass a bankrupt law, or whether 
 the power is exclusively vested in the Congress of the United 
 States. 
 
 "2. Whether the act of New York, passed the third day of April, 
 1811, and stated in the plea in this case, is a bankrupt act, within 
 the meaning of the Constitution of the United States. 
 
 "3. Whether the act aforesaid is an act or law impairing the 
 obligation of contracts, within the meaning of the Constitution of 
 the United States. 
 
 " 4. Whether the plea is a good and sufficient bar of the plaintiff's 
 action. ' ' 
 
 Sturges V. Crowninshield was transferred and reported 
 previous to the College case ; but both were before the court 
 and under consideration substantially the same length of 
 time. Both were important cases, and involved the con- 
 struction of the same provision of the Constitution. To be 
 thoroughly understood, this case must be read and com- 
 pared with the individual opinions of the judges in Ogden v. 
 Saunders, Robbins v. Shaw, Mason v. Haile, 12 Wheat. 214, 
 383; Boyle v. Zacharie, 6 Pet. 348, 643; Rhode Island v. 
 Massachusetts, 12 Pet. 720 ; Cook v. Moffat, 5 How. 310, 
 311 ; Company v. Debolt, 16 How. 416, and subsequent 
 cases. But six judges sat in Sturges v. Crowninshield. 
 Upon the general question, as suggested by Mr. Webster, 
 they were well known to be equally divided. Livingston 
 then sustained the constitutionality of these laws, in whose 
 atmosphere he had been reared ; and we are not aware of 
 any evidence that he ever concurred either in the adroitlj^ 
 framed judgment in that case, or the reasoning b}'' which 
 such a result was reached. As we shall hereafter see, 
 neither Washington nor Johnson ever concurred in the rea-
 
 JUDGE JOHNSON STURGES V. CROWNINSHIELU . 307 
 
 soiling of Judge Marshall in important particulars. The 
 judgment wliich Webster saw was coming was the result, 
 not of accord, but of discord, wrought into a compromise, 
 by the diplomatic skill and tact of Marshall, and his ascend- 
 ancy over the wills of men, even when he could not shake 
 their convictions. 
 
 In his re\'ised report of Hicks v. Hotchkiss, 7 Johns. Ch. 
 29(t, 315, one of the last causes heard before him, Chan- 
 cellor Kent felt compelled to say : — 
 
 " No objection has been raised, as far as I recollect, to the con- 
 stitutionality of these insolvent laws, by the judiciary of this or of 
 any other State, or by that of the United States until the decision 
 in Sturges v. Crowninshield. 
 
 " But the case of Sturges v. Crowninshield is not free from dif- 
 ficulty as to the extent of its application. The act of 1811 was 
 passed after the making of the contract to which the discharge 
 under the act was pleaded as a bar, and the counsel for the plain- 
 tiff raised the distinction between the case of a contract made 
 before and after the passing of the act ; and contended, that if 
 the act was not unconstitutional and void as to future contracts, it 
 was clearly so as to contracts existing when it was passed. The 
 chief justice, however, did not take notice of that distinction, and 
 all his reasoning went to illustrate and enforce the general principle 
 in the Constitution that contracts should be inviolable, and that any 
 law releasing the party from his obligation to pay impaired that 
 obligation." 
 
 Kent shrunk from the logical consequences of the reason- 
 ing of the chief justice ; but, as his opinion in Ogden v. 
 Saunders shows, Marshall did not. 
 
 Judge Johnson was a South Carolinian, of English stock. 
 He was born in 1771 ; graduated at Princeton, with the 
 highest honors, when nineteen ; read law under the eye 
 of C. C. Pinkney ; was admitted to the bar when twenty- 
 two, and very soon attained eminence in his profession. 
 When twenty-three, he became a member of the Legislature, 
 was twice reelected, and was speaker during his last term.
 
 308 DARTMOUTH COLLEGE CAUSES. 
 
 But as his tastes were judicial, rather than political, he 
 retired from political life, and under the reorganization 
 of the judiciary system became one of the judges of the 
 Circuit Court. 
 
 On March 26, 1804, he was appointed by Jefferson to the 
 bench of the Supreme Court. At the time of the decision 
 in the College case, he was forty-eight years old. In 1822, 
 he published the "Life, etc., of Nathaniel Greene." A 
 portion of this work was devoted to the ' ' history of par- 
 ties." He proposed to continue the latter, and to trace 
 how far, if at all, the Supreme Court had, by construction, 
 " advanced beyond its constitutional limits, and trespassed 
 on those of the State authorities ; ' ' and corresponded con- 
 fidentially with Jefferson upon the subject, as their letters 
 of April 11, 1823, and June 12, 1823, respectively show. 
 A series of his letters to the Charleston Courier show that 
 he made some progress in this work, but we are not aware 
 that it was ever completed, or that, except in this form, 
 any part of it was given to the world. 
 
 Judge Story, in his letter to Fay, of February 25, 1808 
 (1 Life of Story, 168), describing the judges, says: "I 
 ought not to pass by Judge Johnson, though I scarcely 
 know how to exhibit him individually. He has a strong 
 mathematical head, and considerable soundness of erudi- 
 tion. He reminds me of Mr. Lincoln, [Jefferson's at- 
 torney-general when Marbury v. Madison arose and was 
 decided, and the nominal successor of Judge Cushing,] 
 and in the character of his mind he seems to me not dis- 
 similar. He has, however, less of metaphysics and more 
 of logic." The opinion of Story in later years was less 
 flattering. 
 
 Soon after his accession to the bench, though politically he 
 seems to have regarded himself as the immutable point in 
 the universe. Story changed from a radical Republican, in 
 the sense in which that term was used in olden time, to a 
 Federal Imperialist of the Jay school, leaving Marshall far
 
 JOHNSON OPINIONS BEFORE MARSHALL'S TIMK. 309 
 
 behind ; and afterwards was not inclined to look with spe- 
 cial favor upon those whose opinions were less advanced than 
 his own. Johnson did not grow in favor with him. He 
 termed Johnson's views upon certain constitutional ques- 
 tions " peculiar ;" and in some respects they were. John- 
 son's tastes were quiet, unpretentious, and scholarly. His 
 learning was rare, curious, and diversified ; but though his 
 was an important circuit, we know little of his judicial life 
 beyond what is disclosed by his opinions in the Supreme 
 Court, and they vary much. Some of them are strong and 
 able ; others are wanting in exactness and precision, and 
 indicate that the writer was confused, and unable to put his 
 opinion on grounds satisfactory to himself. His legal 
 instincts seemed to far outrun his power to make others 
 see, by written words, what he felt. He had little in 
 common with the Southern politicians of his day, with 
 whom he nominally afiiliated. He was not only the 
 staunchest of Union men in the days of nullification, but 
 always had a strong National-Federal bias ; in a word, 
 though not an Imperialist, like Story, he was a Centralist 
 from conviction. 
 
 Before Marshall's appointment, the Supreme Court fol- 
 lowed the English practice, under which each judge who sat 
 in a cause gave an opinion whenever he thought there was 
 occasion for it ; but, in general, those judges who presided 
 at the circuit declined to sit in banc, except in a case of equal 
 division. Under Marshall (who argued but a single cause 
 in that court before he became chief justice) tliis practice 
 was rooted out, so far as his influence extended ; the judges 
 reheard the causes which they had decided at the circuit ; the 
 practice of giving individual ophiions was repressed ; the 
 practice became general of making one judge " the organ of 
 the coui"t," of virtually assigning causes, and of taking them 
 home for the purpose of writing up opinions in vacation ; 
 and of having an opinion read by a single judge as the opinion 
 of the court, when the judgment received the assent of but
 
 310 DARTMOUTH COLLEGE CAUSES. 
 
 three, and sometimes two, of the judges, and the reasoning 
 of a less number. This vicious practice occasioned great 
 dissatisfaction. 
 
 The primitive court consisted of five judges. It was 
 increased to six, and afterwards to seven. For years it was 
 necessary for two of these judges, in general, to ride the cir- 
 cuit together ; not infrequently, after the accession of Mar- 
 shall, but four judges held the general term at Washington, 
 and constituted the court when many important causes were 
 decided. Two of the judges were aged and infirm, and one 
 of them, for ^^ears before his death, was so superannuated 
 that he practically left his circuit, a most important one, 
 to take care of itself, and was a nonentity at Washington. 
 The new chief had, from his acknowledged ability and 
 force, and weight of character, and from his tact and diplo- 
 matic skill, great influence with his brethren. For years he 
 prepared a large share of the opinions. When an occasion 
 required, he was an adept in "patching up" compromise 
 judgments and opinions. Confident that he was right, he 
 sometimes entered up judgment, and read opinions as the 
 opinion of the court, without being as careful as a discreet 
 judge ought, to find out whether his opinion was that of a 
 majority or minority of the court. In Rose v. Himel}^, 4 
 Cranch,41, he delivered the leading opinion, and ordered the 
 judgment of the Circuit Court to be reversed, etc., when in 
 fact but a single judge agTeed with him, as afterwards 
 appeared in Hudson v. Guestier, 6 Cranch, 281. In one of 
 the cloud of opinions delivered by Marshall at the trial of 
 Aaron Burr, he admits that he made a mistake of a similar 
 character in Bollman's case. In this way two judges some- 
 times practically became a majority of six, and three a 
 majority of seven. The cases referred to were by no means 
 the only instances of a similar kind, nor could they fairly be 
 attributed to the press of business. These facts were open 
 secrets in narrow circles. This intensified the dissatis- 
 faction. A judiciary bill was reported to Congress by the
 
 PKIMITIVE COURT PRACTICE UNDER MARSHALL. 311 
 
 attorney-general, which required the judges to deliver their 
 oiiinions seriatim in open court, and then to give them in 
 writing to the clerk, to be entered upon his record. This 
 feeling lay at the bottom of the attempts in Congress (which 
 gave Webster so much trouble, and some of the judges so 
 much uneasiness) to prohibit the judges from setting aside 
 a State law as unconstitutional unless a certain number of 
 judges sat in the cause and concurred in the judgment. It 
 was one of the causes of Jefferson's dislike of Marshall, 
 which made him say, with a bitterness unusual to him, in his 
 letter to Ritchie, of June 25, 1820 : "An opinion is huddled 
 up in conclave, perhaps by a majority of one, delivered as if 
 unanimous, and with the silent acquiescence of lazy or timid 
 associates, by a crafty chief judge, who sophisticates the law 
 to his mind by the turn of his own reasoning." 
 
 In such a judicial atmosphere, Johnson, keen, critical, 
 sagacious, able, and honest, as he was, sometimes silently 
 acquiesced in opinions and judgments contrary to his con- 
 victions ; and at others, set the example commended by 
 Jefferson in his letter of June 12, 1823 : "I rejoice in the 
 example you set of seriatim opinions. I have heard it often 
 noticed, and always with high approbation. Some of your 
 brethren will be encouraged to follow it occasionally, and 
 in time it may be felt by all as a duty, and the sound 
 practice of the primitive court be again restored. Why 
 should not every judge be asked his opinion, and give it 
 from the bench, if only by yea or nay? Besides ascertain- 
 ing the fact of his opinion, which the public have a right 
 to know, in order to judge whether it is impeachable or 
 not, it would show whether the opinions were unanimous 
 or not, and thus settle more exactly the weight of their 
 authority." 
 
 The true construction of the obligation clause must be 
 determined upon principle at last. In what sense did the 
 people use these words when they adopted this provision? 
 When we know this we know all. History, reasoning, and
 
 312 DARTMOUTH COLLEGE CAUSES. 
 
 canons are only pertinent as they bear upon this ques- 
 tion. 
 
 They are intimately connected, but the words " obliga- 
 tion ' ' and ' ' contract ' ' are no more synonymous than light 
 and darkness. The Constitution does not prohibit legisla- 
 tive interference with contracts. It protects the obligation ; 
 but the contract is protected only so far as that results 
 incidentally from the prohibition against impairing the 
 obligation. That the obligation of all executory con- 
 tracts, aside from those which undertake to barter away 
 sovereignty, whether express, tacit, or otherwise inferred, 
 or those which the law erects, as in case of absolute idiots, 
 etc., is protected, is clear. Beyond lies the disputed terri- 
 tory. Marshall, in his second opinion in Fletcher v. Peck, 
 6 Cranch, 127, assumed that executed contracts carried 
 with them, by implication, an obligation which the Constitu- 
 tion protected after the execution ; in other words, that in 
 this way the naked sale is protected. This is the foundation 
 of the error. In that case, but five of the seven judges sat, 
 and Johnson delivered a dissenting opinion, in the conclu- 
 sion of which he says : "I have been very unwilling to 
 proceed to the decision of this cause at all. It appears to 
 me to bear strong evidence upon the face of it of being a 
 mere feigned case. It is our duty to decide on the rights, 
 but not on the speculations of parties." 
 
 His legal instincts led him, it seems to us, to the correct 
 conclusion. He says : — 
 
 "The right of jurisdiction is essentially connected to, or rather 
 identified with, the national sovereignty. To part with it is to 
 commit a species of political suicide. In fact, a power to produce 
 its own annihilation is an absurdity in terms. It is a power as 
 utterly incommunicable to a political as to a natural person. But 
 it is not so with the interests or property of a nation. Its pos- 
 sessions nationally are in nowise necessary to its political exist- 
 ence ; they are entirely accidental, and may be parted with in 
 every respect similarly to those of the individuals who compose
 
 CONSTRUCTION OF OBLIGATION CLAUSE. 318 
 
 the community. * * * j have thrown out these ideas that 
 I may have it distinctly understood that my opinion on this point 
 is not founded on the provision in the Constitution of the United 
 States relative to laws impairing the obligation of contracts. It 
 is much to be regretted that words of less equivocal signification 
 had not been adopted in that article of the Constitution. There 
 is reason to believe from the letters of Publius, which are well 
 known to be entitled to the highest respect, that the object of the 
 Convention was to afford a general protection to individual rights 
 against the acts of the State Legislatures." 
 
 It is obvious from the context, that in his reference to 
 Publius, Johnson refers, not to No. 7 of " The Federalist," 
 written by Hamilton, but to No. 44, written by Madison. 
 He continues : — 
 
 "Now, a grant or conveyance by no means necessarily implies the 
 continuance of an obligation beyond the moment of executing it. 
 It is most generally but the consummation of a contract, is 
 functus officio the moment it is executed, and continues afterwards 
 to be nothing more than the evidence that a certain act was done. ' ' 
 
 The latter statement seems to us to contain a great and 
 incontrovertible legal truth. It was, in effect, what was 
 before said by Judge Wilson, and what was afterwards 
 repeated by Judge McLean. 
 
 However much we might desire to change the grounds 
 on which it has been assumed to rest, no honest man could 
 wish to disturb the judgment in this case. Taking the case 
 as stated in the record, it was an attempt at downright rob- 
 bery. Our convictions are that the judgment was sustain- 
 able upon other grounds than those stated. m 
 
 Where the State conveys a tract of land, it does so, not as 
 a sovereign, but as an owner, the same as any individual, 
 municipal or other corporation might, and with precisely 
 the same effect. This was the view of Judges Johnson and 
 Wilson, of Morris and others, and seems now the doctrine 
 of the Supreme Court. Murray v. Charleston, 96 U. S. 
 445 ; Moore v. Robbins, 96 U. S. 533. But where it un-
 
 314 DARTMOUTH COLLEGE CAUSES. 
 
 dertakes to divest itself of sovereignty, it assumes to, and 
 must, act as a sovereign. 
 
 Judge Johnson published no opinion in the College case, 
 and gave none in Sturges v. Crowninshield. In Green v. 
 Biddle, 8 Wheat. 96, he refused to discuss the obligation 
 clause ; but in Ogdcn v. Saunders he states what his opinion 
 was in Sturges v. Crowninshield. He says : — 
 
 " The report of the case of Sturges v. Crowninshield needs also 
 some explanation. The court was, in that case, greatly divided 
 in their views of the doctrine, and the judgment partakes as much 
 of a compromise as of a legal adjudication. The minority thought 
 it better to yield something than risk the lohole. And, although 
 their course of reasoning led them to the general maintenance of 
 the State power over the subject, controlled and limited alone by 
 the oath administered to all their public functionaries to maintain 
 the Constitution of the United States, yet, as denying the power 
 to act upon anterior contracts could do no harm, but, in fact, 
 imposed a restriction conceived in the true spirit of the Constitu- 
 tion, they were satisfied to acquiesce in it, provided the decision were 
 so guarded as to secure the power over posterior contracts as well 
 from the positive terms of the adjudication as from inferences dedu- 
 cible from the reasoning of the court. The case of Sturges y. 
 Crowninshield, then, must, in its authority, be limited to the terms 
 of the certificate, and that certificate affirms two propositions : — 
 
 "• 1. That a State has authority to pass a bankrupt law, provided 
 such law does not impair the obligation of contracts within the 
 meaning of the Constitution, and provided there be no act of Con- 
 gress in force to establish an uniform system of bankruptcy', con- 
 flicting with such law. 
 
 ^. " 2. That a law of this description, acting upon prior contracts, 
 is a law impairing the obligation of contracts within the meaning 
 of the Constitution. 
 
 " WJiatever inferences or whatever doctrines the opinion of the 
 court in that case may seem to support., the concluding words of 
 that opinion were intended to control and to confine the authority of 
 the adjudication to the limits of the certificate. 
 
 "The first of these questions [whether a State bankrupt law, 
 operating upon subsequent contracts, is prohibited by the obligation
 
 JOHNSON EXPLAINS STURGES V. CKOWNINSHIELD. 315 
 
 clause] has been so often examined and considered, in this and 
 other courts of the United States, and so little progress has yet 
 been made in fixing the precise meaning of the words ' obligation 
 of a contract,' that I should turn in despair from the inquiry, 
 were I not convinced that the difficulties the question presents are 
 mostly factitious, and the result of refinement and technicality ; 
 or of attempts at definition, made in terms defective both in pre- 
 cision and comprehensiveness. Right or wrong, I come to my 
 conclusion on their meaning, as applied to executory contracts, 
 the subject now before us, by a simple and short-handed exposi- 
 tion. Right and obligation are considered by all ethical writers as 
 correlative terms. Whatever I, by my contract, give another a 
 right to require of me, I, by that act, lay myself under an obli- 
 gation to yield or bestow. The obligation of every contract 
 will then consist of that right or power over my will or actions, 
 which I, by my contract, confer on another. And that right and 
 power will be found to be measured neither by moral law alone, 
 nor universal law alone, nor by the laws of society alone, but by 
 a combination of the three ; an operation in which the moral law 
 is explained and applied by the law of nature, and both modified 
 and adapted to the exigencies of society by positive law. * * * 
 They [the parties] can enter into no contract which the laws of 
 that community forbid, and the validity and effect of their con- 
 tracts is what the existing laws give to them. * * * If it be 
 objected to these views of the subject, that they are as applicable to 
 contracts prior to the law as to those posterior to it, and therefore, 
 inconsistent luith the decision in the case of Stxirges v. Crownin- 
 shield, my reply is, that I think this no objection to its correctness. 
 I entertained this opinion then, and have seen no reason to doubt it 
 since. But, if applicable to the case of prior debts, multo fortiori, 
 will it be so to those contracted subsequent to such a law ; the 
 posterior date of the contract removes all doubt of its being in 
 the fair and unexceptionable administration of justice that the 
 discharge is awarded." 
 
 We regard these extracts from Johnson's opinion, a por- 
 tion of which we have put in italics, as very important. 
 
 The opinions of Marshall in the College case and in 
 Sturges V. Crowninshield, so far as they pertain to the con-
 
 316 DARTMOUTH COLLEGE CAUSES. 
 
 struction of this clause, are virtually a single opinion. The 
 extracts we have just quoted do not undertake to give a full 
 history of the position of individual judges, or of the report 
 in the latter case ; but, as far as it goes, we assume that it 
 states the facts correctly. When the decision in Ogden v. 
 Saunders was made, Livingston had given place to Thomp- 
 son. But five of the judges, including Marshall and Story, 
 were the ones who decided Sturges v. Crowninshield. 
 
 The dissenting opinion of Marshall in Ogden v. Saunders, 
 if not his masterpiece, was one of the ablest efforts of his 
 life. If Johnson had stated this history of his own views 
 and the report incorrectly, neither Story nor Marshall 
 could, or would, have permitted it to pass unnoticed. The 
 simple truth is, that the dissenting opinion in Ogden v. 
 Saunders, in its general reasoning, is identical with that in 
 those cases ; but the majority of the court, in this case, 
 shrank from the logical consequences of that reasoning, as 
 they did in Charles Eiver Bridge v. Warren Bridge, 11 
 Pet. 420. By releasing all posterior contracts from the 
 protection of the obligation clause, this decision changed. 
 Judge Marshall said, " the character of the provision, and 
 converted an inhibition to pass laws impairing the obligation 
 of contracts into an inhibition to pass retrospective laws." 
 Had the fathers first adopted a clause prohibiting all retro- 
 spective laws, it is impossible to believe that they would 
 have added to it the inferior prohibition of the obligation 
 clause.
 
 CHAPTER XIII. 
 
 JUDGE WASHINGTON — HIS OPINION — GOLDEN v. PKINCE — 
 RESTS HIS DECISION ON FLETCHER v. PECK, AND PHILLIPS 
 V. BURY — LEGISLATIVE POWER OVER PUBLIC CORPORA- 
 TIONS— OGDEN V. SAUNDERS. 
 
 Judge Washington died November 26, 1829, some ten 
 years after the decision in the College case. Judge Story 
 says he was born June 5, 1762, but others say at an earlier 
 period. He was the nephew of General Washington ; read 
 law in Philadelphia after the close of the war ; was admitted 
 to the bar in his native county, in Virginia, and afterwards 
 resided at Richmond and Alexandria. In 1787 he was a 
 member of the lower branch of the Virginia Legislature ; 
 and in 1788, sat with Marshall in the Convention which 
 ratified the Federal Constitution. At the bar he was often 
 pitted against Marshall, Campbell, and other prominent 
 lawyers. He reported the decisions of the Court of Ap- 
 peals from 1792 to 1796. In these two volumes he briefly 
 reported his own arguments and those of Marshall, etc. 
 On September 29, 1798, John Adams, after hesitating for 
 some time as to whether Washington or Marshall should 
 receive the appointment, nominated him to fill the vacancy 
 on the Supreme Bench created by the death of Judge 
 Wilson. The nomination was confirmed, December 20, 
 1798, and he held the office till his death. 
 
 In his letter to Fay, of 1808, from which we have already 
 quoted, Judge Story says : " Washington is of a very short 
 stature, and quite boyish in his appearance. Nothing about 
 him indicates greatness. He converses with simplicity and 
 frankness. But he is highly esteemed as a profound lawj'^er, 
 and I believe not without reason. His written opinions are 
 
 (317)
 
 318 DARTMOUTH COLLEGE CAUSES. 
 
 composed with ability, and on the bench he exhibits great 
 promptitude and firmness in decision . It requires intimacy 
 to value him as he deserves." 
 
 Professor Goodrich (1 Life of Webster, 171) thus 
 describes him in the scene which transpired during the 
 delivery of Webster's peroration in the College case, in 
 1818: "Mr. Chief Justice Marshall, with his tall, gaunt 
 figure, bent over as if to catch the slightest whisper, the 
 deep furrows of his cheeks expanded with emotion, and his 
 eyes sufiused with tears ; Mr. Justice Washington at his 
 side, with his small and emaciated frame, and countenance 
 more like marble than I ever saw on any other human 
 being, leaning forward with an eager, troubled look." 
 
 His appearance was not deceptive. He was in no sense 
 a great man or judge, but in every sense a good one. He 
 was not an original thinker, nor a man of genius. He was 
 neither quick, brilliant, nor profound. But he had fair 
 abilities ; his mental powers were evenly developed, har- 
 monious, and worked in unison ; he was conscious — for he 
 expressed it in his opinions — that he was unable to convey 
 to the minds of others the full force of his convictions, and 
 his reasons for them ; he was sometimes oppressed with 
 Eldon's doubts, without Eldon's infirmity of procrastina- 
 tion ; seldom able to satisfy himself ; patience and pains- 
 taking became with him a religious duty, though after Story 
 came to the bench he relied to a great extent, for authorities, 
 on the abstracts and cases furnished by him, as did others. 
 The fear of men and of consequences he never felt ; the 
 approbation of a " faithful few" was dear to his heart, but 
 the praise of others fell on non-receptive ears. He had an 
 inborn and unconquerable aversion to every form of display ; 
 in every thing he was slow, steady, and reliable. As a 
 jurist, he was conservative, and, in general, submissive to 
 precedent. He was an old-school Federalist, firm and 
 decided, but tolerant of those whom he thought sincere in 
 their support of Anti-Federalist heresies. He was the
 
 JUSTICE WASHINGTON. 319 
 
 specially intimate and devoted friend of Marshall, and 
 shared his notions relating to the " dignity of the court," 
 and individual opinions ; and in learning, he far exceeded 
 him. 
 
 John Adams, though possessing unfortunate peculiarities 
 of temper, was a great lawyer, and far surpassed in original 
 genius all his gifted descendants. When he came to con- 
 sider the appointment in 1798, he fixed upon Marshall or 
 Washington as the successor of Judge Wilson, saying : 
 " Marshall is first in rank, age, and public services, and prob- 
 ably not second in talents. * * * jf Marshall should 
 decline, I should think next of Washington." Jefferson, in 
 his letter to Dr. Rush, of September 23, 1800, suggested as 
 an illustration of the true " mode of recording merit," that 
 " in giving, for instance, a commission of chief justice to 
 Bushrod Washington, it should be in consideration of his 
 integrity, and science in the laws," etc Washington was one 
 of the judges who concurred in the judgment in Fletcher v. 
 Peck, though upon what precise ground, his opinions in the 
 College case and Satterlee v. Matthewson, 2 Pet. 413-415, 
 render uncertain. He was the only one of the seven judges 
 who sat in the College case that is known, ' ' upon the whole," 
 to have ' ' concurred in the result ' ' at which Marshall had 
 arrived, at the consultation, after the case was argued in 
 1818. 
 
 His opinion, which we have seen was never delivered, 
 occupies about ten and one-half pages in Farrar, — about one- 
 sixth the space taken by Marshall and Story. It difiers 
 materially from the others. To this, and its author's deep 
 sense of duty, we are undoubtedly indebted for its publica- 
 tion, while we owe its brevity to the fact that he was never 
 given to writing essays on government or etiquette, like 
 Marshall, nor lectures or treatises on legal topics, like 
 Story. 
 
 On the first page of his opinion he disposes summarily of 
 the elaborate arguments of Mason and Smith upon those
 
 320 DARTMOUTH COLLEGE CAUSES. 
 
 points before the State court, and three-fourths of that of 
 Webster before the Supreme Court, saying : " Whether the 
 first objection to these laws be well founded or not is a ques- 
 tion with which this court in this case has nothing to do." 
 
 The contrast between the following opinion and that of 
 Marshall in Sturges v. Crowninshield is very marked : — 
 
 Golden v. Prince (3 Wash. Cir. Ct. 313-327) was decided 
 by Judge Washington at the April term, 1814, and pub- 
 lished in 1827. It was an action on a bill of exchange drawn 
 by the defendant, May 10, 1810, at St. Bart's, for value 
 received there, in favor of the plaintiff, on himself, and by 
 him duly accepted, etc. The suit was brought May 4, 1812, 
 and the defendant pleaded his discharge under a statute of 
 Pennsylvania for the relief of insolvent debtors, passed 
 March, 13, 1812, under which, upon his petition, of April 20, 
 1812, he had provisionally obtained his certificate of discharge 
 on April 23, and finally on May 29, 1812. No notice of the 
 petition had been given the plaintiff or his agents, nor had the 
 plaintiff proved his debt under these proceedings. 
 
 The statute declared that the certificate should discharge 
 such insolvent from all debts and demands due from him, or 
 for which he was liable at the date of such certificate, and 
 also from all contracts originating before that date though 
 payable afterwards. 
 
 The court held : ' ' The exercise of the power by the State 
 governments, to pass bankrupt and naturalization laws, is 
 incompatible with the grant of a power to Congress, to pass 
 uniform laws upon the same subjects. 
 
 The law of Pennsylvania of 13th of March, 1812, is 
 unconstitutional, because it impairs the obligation of a 
 contract, and because Congress have exclusively the power 
 to pass a bankrupt law." 
 
 In his opinion he says: "It maybe proper to premise 
 that a law may be unconstitutional, and, of course, void, 
 in relation to particular cases ; and yet valid, to all intents
 
 GOLDEN r. PRINCE OBLIGATION CLAUSE. 321 
 
 and purposes, in its application to other cases within the scope 
 of its provisions, but varying from the other in particular 
 circumstances. Thus, a law prospective in its operation, 
 under which a contract afterwards made may be avoided in 
 a way different from that provided by the parties, would 
 be clearly constitutional ; because the stipulations of the 
 parties, which are inconsistent with such a law, never had a 
 legal existence, and of course could not be impaired by the 
 law. But if the law act retrospectively, as to other con- 
 tracts, so as to impair their obligation, the law is invalid ; 
 or, in milder terms, it affords no rule of decision in these 
 latter cases. * * * 
 
 " What is the obligation of a contract? It is to do, or not 
 to do, a certain thing ; and this may be either absolutely, 
 or under some condition ; immediately, or at some future 
 time or times ; and at some specified place, or generally. 
 A law, therefore, which authorizes the discharge of a con- 
 tract, by a smaller sum, or at a different time, or in a 
 different manner than the parties have stipulated, impairs 
 its obligation, by substituting for the contract of the i^arties 
 one which they never entered into, and to the performance 
 of which they of course had never consented. The old 
 contract is completely annulled, and a legislative contract 
 imposed upon the parties in lieu of it. * * * 
 
 " But it was contended, that,' if Congress shall decline to 
 exercise the power [to pass uniform laws of bankruptcy] , 
 the right to pass such laws results to the State govern- 
 ments. This conclusion appears to us to beg the whole 
 question in controversy. It resigns all claim to a con- 
 current rigid in the State governments, and sets up one 
 which is to arise in a condition not to be found in the Con- 
 stitution, but which is gratuitously interpolated into it. 
 
 "If, then, this claim of the State legislatures is not founded 
 upon any express grant made to them in the Constitution, 
 is it to be deduced from the circumstance of a non-user 
 
 21
 
 322 DARTMOUTH COLLEGE CAUSES. 
 
 of the power by Congress ? This doctrine appears to us to 
 be as extravagant as it is novel. It has no analogy, thar^ 
 we know of, in legal or political science. * * * 
 
 <' We desire that it may be distinctly understood that we 
 do not mean to give any opinion on the subject of insolvent 
 laws, acts of limitation, and the like, because they are 
 not now before us ; and sufficient to the day is the evil 
 thereof." 
 
 He seeks to show, in the next two and one-half pages of 
 his opinion, that the charter was a contract. 
 
 His argument is, that Mr. Powell's definition is broad 
 enough to cover executed contracts ; that Fletcher v. Peck 
 had decided "that a grant is a contract," and that the 
 clause applies alike to executory and executed contracts ; 
 that, under Blackstone's definition of a franchise, the cre- 
 ation of this corporation by charter was such a contract, 
 and extinguished the king's prerogative to bestow the same 
 identical franchise on another corporate body, because it 
 would prejudice his prior grant. 
 
 He then says : "It implies, therefore, a contract not to 
 reassert the right to grunt the franchise to another, or to 
 impair it." This is the identical proposition afterwards 
 relied upon by Stor}^ but overturned by a majority of the 
 court, in the great Bridge case. Its meaning is sufficiently 
 obvious, but it seems never to have occurred to Washington 
 that this reasoning fell far short of what was necessary. 
 He was discussing a principle of English law in the light 
 thrown upon it by a British author. Assuming that the 
 king, whenever he granted a franchise, despoiled himself of 
 the power to re-grant it, or to impair its value by a new cre- 
 ation under a fresh patent, he could neither expressly, nor by 
 implication, annitiilate the conceded power of Parliament to 
 do as it pleased. Parliament had granted, and in many 
 instances had altered and amended, charters. The king had 
 no power to tie their hands, except by veto. Even thore 
 who believe that under a constitutional form of ijovernment
 
 INSOLVENT LAWS — POWER OF PARLIAMENT. 32tJ 
 
 the attributes of sovereignty are mere articles of merchan- 
 dise, to be bartered away at pleasure, and that legislative 
 bodies are "markets-overt" for that purpose, will hardly 
 claim that the executive department can extinguish the veto 
 power, present and future, by contract. If it were other-- 
 wise, the king, by contract, might extinguish the powers of 
 the nation bj' thus strangling the two great estates of the 
 realm. 
 
 He further says : "There is also an implied contract, that 
 the founder of a private charity, or his heirs, or other per- 
 sons appointed by him for that purpose, shall have the right 
 to visit and to govern the corporation of which he is the 
 acknowledged founder and patron, and also, that in case of 
 its dissolution, the reversionary right of the founder to the 
 property with which he had endowed it shall be preserved 
 inviolate." John Wheelock, as we have seen, was the prin- 
 cipal heir of Eleazar, who founded the charity-school. The 
 proposition contained in the last clause quoted was, as we 
 have seen, assumed on all hands, in the State court, to be 
 correct. There are authorities which fully sustain it ; but, 
 stated in these broad terms, it has, we apprehend, little 
 foundation in principle. In general, the death of a trustee 
 does not annihilate the trust, nor hand the fund over to the 
 creator or his heirs. Chancery supplies a new trustee, and 
 the blessings of the trust flow on. Corporations in England 
 were liable to die, as well as individuals. Sometimes Par- 
 liament and sometimes the courts acted as headsmen. 
 
 He thus states the consideration of such grants : ' ' The 
 obligation imposed upon them [the grantees] and which 
 forms the consideration of the grant is, that of acting up to 
 the end or design for which they were created by their 
 founder." And finally says : "It apf)ears to me, upon the 
 whole, [words which he afterwards repeats in relation to the 
 judgment,] that these principles and authorities prove in- 
 controvertibly, that a charter of incorporation is a contract." 
 
 It would seem, from this, that the naked grant is not pro-
 
 324 , DARTMOUTH COLLEGE CAUSES. 
 
 tected ; or, if it is, is so only so far as that may result from 
 these implied obligations. 
 
 But Mr. Webster, in his great argument in the Bridge 
 case, before the Supreme Court of Massachusetts (7 Pick. 
 437), says: "The legislature cannot grant what they do 
 not possess. The confusion in this case arises from consid- 
 ering these acts of the Legislature as laws, whereas they are 
 grants, which are wholly different. A law is a rule pre- 
 scribed for the government of the subject ; a grant is a 
 donation." 
 
 Of course, it would seem strange only to non-professional 
 eyes that absolute donations are contracts ; though they 
 might be puzzled to understand why the gift itself was of 
 so little consequence, and the implied contract was of such 
 vast importance. 
 
 Washington devotes the remaining six pages to show 
 that the enactments in question did " impair this contract." 
 In proceeding " to mark the distinction between the different 
 kinds of lay aggregate corporations, in order to prevent any 
 implied decision by this court of any other case than the 
 one immediately before it," he says : " We are informed by 
 the case of Phillips v. Bury, which contains all the doctrines 
 of corporations connected with this point, that there are two 
 kinds of corporations aggregate, viz., such as are for public 
 government, and such as are for private charity. * * * 
 There is not a case to be found which contradicts the doc- 
 trine laid down in the case of Phillips v. Bury," — summariz- 
 ino; the dicta in that case. " Such legislative interferences 
 [altering, etc., the charters of public corporations] cannot 
 be said to impair the contract by which the corporation was 
 formed, because there is in reality but one party to it, the 
 trustees or governors of the corporation being merely the 
 trustees for the public, the cestui que ti-ust of the foundation. 
 The trustees or governors have no interest, no privileges or 
 immunities, which are violated by such interference, and can 
 have no more right to complain of them than an ordinary
 
 DONATIONS ASSUMED TO BE CONTRACTS. 325 
 
 trustee who is called upon in a court of equity to execute 
 the trust. They accepted the charter for the public l)enefit 
 alone, and there would seem to be no reason why the gov- 
 ernment, under proper limitations, should not alter or 
 modify such a grant at pleasure. * * * Jn short, does 
 not every alteration of a contract, however unimportant, 
 even though it be manifestly for the interest of the party 
 objecting to it, impair its obligation?" 
 
 To sustain the distinction between public and private cor- 
 porations, he cites the opinion of the majority of the court 
 in Terrett v. Taylor, saying: "In respect to public cor- 
 porations which exist only for public purposes, such as 
 towns, cities, etc., the Legislature may, under proper limita- 
 tions, change, modify, enlarge or restrain them, securing, 
 however, the property for the use of those for whom, and 
 at whose expense, it was purchased." 
 
 We shall hereafter see what weight is to be attached to 
 Phillips V. Bury. 
 
 In concluding, he holds that whether Dr. Wheelock was 
 the founder or not would make no difference with the deci- 
 sion. He cites but few authorities, and those, aside from 
 Phillips V. Bury, Fletcher v. Peck, and Terrett v. Taylor, 
 etc., of no special pertinence. It may deserve consideration 
 whether his doctrine in relation to trustees of public corpora- 
 tions does not, in the al^sence of particular constitutional 
 provisions or special regulations, appl}^ to all corporations. 
 
 The decisions in the American courts as to the power of 
 the legislature over what are termed public corporations 
 are diametrically opposed to each other. Even that great 
 master of the law of municipal corporations, Judge Dillon, 
 can neither reconcile them nor invent a common ground 
 upon which they can stand. One class of cases holds that 
 the legislature has not only absolute power over municipal 
 corporations, but over their property ; another class holds 
 that such coi'porations have a dual nature, — are legal her- 
 maphrodites ; that the public side, being the creature of
 
 326 DARTMOUTH COLLEGE CAUSES. 
 
 legislative breath, can be annihilated by the same, Imt that 
 the private part is in eiFect an individual, suspended, like 
 Mahomet's coffin, somewhere between the heavens and 
 the earth, under the protection of the courts, and more 
 especially of the obligation clause. 
 
 The Supreme Court of New Hampshire, in a recent case 
 (Spauldingv. Andover, 54 N. H. 38), carried the reasoning 
 of Washington and the authorities on which he relied to 
 their logical consequences, and held, in eifect, that a legis- 
 lature could, through a public statute, contract by implica- 
 tion with a town, and that that contract was protected against 
 all subsequent enactments by the obligation clause, the same 
 as if the State had contracted with an individual. 
 
 At the February term, 1824, five years after the decision 
 in the College case, Ogden v. Saunders was first argued by 
 Webster for Saunders. This was assumpsit brought by 
 Saunders, of Kentucky, against Ogden, of Louisiana, upon 
 bills of exchange, drawn on September 30, 1806, by Jordan, 
 of Kentucky, upon Ogden, and accepted by him in New 
 York, of which State he was at that time a citizen. Ogden 
 had been discharged under the act of the New York Legisla- 
 ture of April 3, 1801, for the relief of insolvent debtors 
 The case having been continued about three years for 
 advisement, was reargued by Webster at the January term, 
 1827. In guarded terms Washington thus states his general 
 position with reference to the decision, and the opinion of 
 Judne Marshall in Sturges v. Crowninshield : "To the 
 decision of this court made in the case of Sturges v. Crown- 
 inshield, and to the reasoning of the learned judge who 
 delivered that opinion, I entirely submit ; although I did not 
 then, nor can I now, bring my mind to concur in that part 
 of it which admits the constitutional power of the State 
 Legislatures to pass bankrupt laws, by which I understand 
 those laws which discharge the person and the future acqui- 
 sitions of the bankrupt from his debts. I have always 
 thought the power to pass such a law was exclusively vested
 
 OBLIGATION CLAUSE STUKGES V. CROWNINSHIELD. 327 
 
 by the Constitution in the Lcgishiture of the United States. 
 But it becomes me to believe that this opinion was, and is, 
 incorrect, since it stands condemned by the decision of a 
 majority of this court, solemnly pronounced." (12 Wheat. 
 2G4, 265.) He adds : " This leads us to a critical examina- 
 tion of the particular phraseology of that part of the above 
 section which relates to contracts. It is a law which impairs 
 the ol)ligation of contracts, and not the contracts themselves, 
 which is interdicted. It is not to be doubted that this term, 
 obligation, when applied to contracts, was well considered 
 and weighed by those who framed the Constitution, and was 
 intended to convey a different meaning from what the pro- 
 hibition would have imported without it." ( 12 Wheat. 257. ) 
 " The universal law of all civilized nations, which declares 
 that men shall perform that to which they have agreed, has 
 been supposed, by the counsel who have argued this cause 
 for the defendant in error, to be the law which is alluded to ; 
 and I have no objection to acknowledging its obligation, 
 whilst I must deny that it is that which exclusively governs 
 the contract. It is upon this law that the obligation, which 
 nations acknowledge to perform their compacts with each 
 other, is founded, and I, therefore, feel no objection to 
 answer the question asked by the same counsel, — what 
 law it is which constitutes the obligation of the compact 
 between Virginia and Kentucky, — by admitting that it 
 is this common law of nations which requires them to per- 
 form it. I admit, further, that it is this law which cre- 
 ates the obligation of a contract, made upon a desert spot, 
 where no municipal law exists, and (which was another case 
 put by the same counsel) which contract, by the tacit assent 
 of all nations, their tribunals are authorized to enforce." 
 (12 Wheat. 258. ) " It is then the municipal law of the State, 
 whether that be written or unwritten, which is emphatically 
 the law of the contract made within the State, and must irov- 
 em it throughout, wherever its performance is sought to be 
 enforced." (12 Wheat. 259.)
 
 CHAPTER XIY. 
 
 JUDGE STOKY — EARLY HISTORY — POLITICAL LIFE — AP- 
 POINTED TO THE BENCH — CHANGE OF POLITICAL OPINIONS 
 — INTIMACY WITH PLUMER — LIFE ON THE BENCH — CONSTI- 
 TUTIONAL LAW — CONTEST WITH CHIEF JUSTICE PARKER- 
 DECIDES THE COLLEGE CAUSES IN THE CIRCUIT COURT— 
 THE BOWDOIN COLLEGE CASE — DEFINES PUBLIC CORPO- 
 RATIONS— VISITATORIAL POWER— ARGUMENT OF HOPKLN- 
 SON — GRAFTED, RAISED, AND SUBSTITUTIONARY FOUNDA- 
 TIONS—PHILLIPS V. BURY — ARGUMENT OF STILLING- 
 FLEET — THE CHARLES RIVER BRIDGE CASE. 
 
 Judge Story was about thirty-nine years of age when he 
 drew up his last opinion in the College case. This great 
 lawyer was born at Marblehead, Massachusetts, September 
 18, 1779. He graduated at Harvard in 1798, read law at 
 home with Judge Sewall from that time till January, 1801, 
 when he removed to Salem, and read with Judge Putnam 
 till he was admitted to the bar, in July of the same year. 
 He was a member of the lower house for the years 1805- 
 8 ; was reelected in 1810-11 ; was speaker during his last 
 term, until he resigned, January 17, 1812, to take his place 
 upon the Supreme Bench, which office he held until his death, 
 which occurred September 10, 1845. In 1806-8 he sup- 
 ported the embargo with marked ability, and in 1808 was 
 elected to Congress, and became the most efficient instru- 
 ment of its repeal. His mental and physical constitution 
 were both of the most elastic character. Without a stain of 
 impurity, he had an ardent social nature ; was open, lavish 
 in his kindliness to those he liked, and was a most delightful 
 companion, even when, in later years, he sometimes wearied 
 with his egotism, as he warmed with the recital of his early 
 (328)
 
 JUDGE STORY LAW LECTURER LABORS. 329 
 
 combats, "shouldered his crutch, and showed how fields 
 were won." From childhood he was ambitious beyond 
 measure, and determined to be " the captain or nothing ; " 
 he was as proud of his plumage as any bird or woman, and 
 as sensitive and sore as either, when it appeared to him that 
 any attempt had been made to mar or despoil it. If such 
 attempts were in any degree successful, though he some- 
 times forgave, he seldom tolerated the presence of their 
 authors, and never forgot them, or ceased to feel the smart. 
 Swift of apprehension, he read every thing, remembered it, 
 put it away in order, and held it at all times at his command. 
 In orderly industry and power of application he had no rival 
 at the bar or on the bench. His power for the acquisition 
 of knowledge bordered upon the marvellous ; he was as 
 busy as the " fatal sisters ;" he laid all under contribution ; 
 he was the Amazon which made tributary every rill of per- 
 sonal anecdote or political gossip. 
 
 As a law-lecturer there never was his like ; he was a full 
 reservoir ; ready, fluent, and never hesitating for a word, 
 the flood poured at command, as zesty and sparkling as a 
 river of champagne. He had all that New England shrewd- 
 ness and practical judgment in business matters and the 
 common aff*airs of life which Marshall so much lacked. 
 No sane man was likely to tell the ' ' sapling story ' ' at his 
 expense. He was a born politician and manager of men ; 
 he knew every phase of human nature, and how to deal 
 with it. When the occasion required, he had the courage 
 of his opinions as but few men have. 
 
 His labors were almost incredible. Besides other duties, 
 which were enough to crush most men, he framed many 
 of the most important acts ever adopted by Congress or 
 pressed upon its attention, — the credit of which was usually 
 taken by others, — and for thirty-three years turned out 
 decisions, opinions, volumes of reports, and huge treatises 
 upon legal topics, with the velocity of a patent machine. 
 He was the great source of legal and political learning
 
 330 DARTMOUTH COLLEGE CAUSES. 
 
 from which Webster, and others scarcely less noted, drew, 
 in their debates in Congress and elsewhere. His opinions 
 will probably stand higher, in the hereafter, than his text- 
 books, except his works on the " Conflict of Laws" and 
 the " Constitution." 
 
 Many of his earlier opinions in the Circuit Court are 
 invaluable. They are replete with learning and tilled with 
 light. His opinions in the vast fields of jurisprudence, 
 involving private rights, were generally well founded ; but 
 where some protege of his was to be affected, either as 
 counsel or suitor, where the construction of some pet 
 statute framed by him was involved, or where certain 
 constitutional questions were raised, he was not, from his 
 peculiar organization and proclivities, enabled to see things 
 as others saw them. 
 
 Whole chapters in some of his books seem to be little 
 more than windrows of head-notes, raked together as the 
 farmer rakes his hay in the mow-field ; but when we survey 
 the ground, the wonder is, not that they contain so many 
 imperfections, but that his work was so well performed. 
 
 In 1801, he went into practice in Salem, less from choice 
 than because he knew of nowhere else to go, and in a little 
 more than ten years was elevated to the Supreme Bench. 
 For three or four years his practice was quite limited, 
 because branded for his political and religious views by the 
 Federal aristocracy among whom he had cast his lot. 
 
 Few who know the New England of to-day can realize 
 the despotic power of this autocracy in Story's youth and 
 early manhood, unless they have felt it themselves, or been 
 reared in the atmosphere and traditions of those who have. 
 Its heart was in the larger places, but its influence radiated 
 to almost every town and hamlet in New England. Web- 
 ster had a vivid appreciation of its sway when he wrote to 
 Porter, on June 4, 1802: "It [Federalism] unites in its 
 support more than two-thirds of the talent, the character, 
 and the property of the nation. This is too much for any
 
 FEDERAL ARISTOCRACY DR. STORr. 331 
 
 administration to contend with ; ' ' and when he cautioned 
 his wife, the gentle and winning Grace, upon her visit to 
 his native town, to pay due attentioAi to "the Salisbury 
 quality.'' It varied in its components according to locali- 
 ties, but in essence it was the same everywhere. It was 
 agglomerate in its nature, but courtly, well dressed, and 
 immensely dignified. It was a religious and political aris- 
 tocracy united with one of birth, lineage, wealth, culture, 
 and talent. A young man of genius, poor and ambitious, 
 was received by it with imposing dignity and a lofty 
 courtesy; and if properly submissive, in time, by its aid, 
 might hope to be "somebody." But if he dared in religious 
 and political matters to do his own thinking, he was tabooed 
 in social and business life ; the ' ' freezing-out ' ' process was 
 resorted to ; and when that failed, he was surrounded with 
 a cordon of fire, and left to sufi'ocate. 
 
 Even at a later day, Worcester, the favorite preacher 
 of Judge Webster as well as Daniel, sufiered martyrdom 
 because he believed with Channing. So long as he drifted 
 with the tide, even through the turmoils of the College 
 controversy, all was well ; but when he looked back toward 
 Unitarianism, a fate less merciful than that of Lot's wife 
 befel him. With exceptional cases, few natures were hardy 
 and self-reliant enough to mthstand the pressure. 
 
 Dr. Story was a man of ability, an Anti-Federalist of the 
 most decided stamp. He took the side of Jefierson. The 
 son, impulsive, warm-hearted, and devoted to his father, 
 inherited the latter' s views and convictions, and, in conse- 
 quence, became very unpopular, was ostracised, and treated 
 with such ofiensive personalities that he seriously contem- 
 plated a removal to Portsmouth, New Hampshire, or Balti- 
 more, Maryland, to escape this persecution. In his later 
 years, after he had taken the long stride from the school 
 of Jefi'erson to that of Jay, and, in consequence, had become 
 the idol of those who had once sought to destroy him, with 
 his feelings mellowed by time and his associations, he gives
 
 332 DARTMOUTH COLLEGE CAUSES. 
 
 US this portraiture of his persecution : "At the time of my 
 admission to the bar, I was the only lawyer within its pale 
 who was either openly or secretly a Democrat. Essex was, 
 at that time, almost exclusively Federal, and party politics 
 were inexpressibly violent. I felt many discouragements 
 from this source. * * * Xo young men with my political 
 opinions, the times were very discouraging. My father was 
 a Republican, as contradistinguished from a Federalist, and 
 I had naturally imbibed the same opinions. In Massa- 
 chusetts, at that period, an immense majority of the people 
 were Federalists. All the offices (with scarcely an excep- 
 tion, I believe) were held by Federalists. The governor, 
 the judges, the Legislature, were ardent in the same cause. 
 It cannot be disguised, too, that a great preponderance 
 of the wealth, the rank, the talent, and the civil and 
 literary character of the State was in the same scale. 
 Almost all the profession of the law were of the party. 
 I scarcely remember more than four or five lawyers in the 
 whole State who cZarec? avow themselves Republicans. The 
 very name was odious, and even more offensive epithets 
 (such as ' Jacobins ' ) were familiarly applied to them. The 
 o^reat struo-ole was over between Mi'. Jefferson and Mr. 
 Adams, and the former had been chosen to the presidency. 
 The contest had been carried on with great heat and bitter- 
 ness ; and the defeated party, strong at home, though not 
 in the nation, was stimulated by resentment and by the 
 hope of a future triumph. Under such circumstances, 
 there was a dreadful spirit of persecution abroad. The 
 intercourse of families was broken up, and the most painful 
 feuds were generated. Salem was a marked battle-ground 
 for political controversies, and for violent struggles of the 
 parties. The Republican party was at first very small 
 there ; and its gradual growth and increasing strength, so 
 far from mitigating, added fuel to the flame. 
 
 " Such was the state of things at the time when I came 
 to the bar. All the lawyers and all the judges in the county
 
 EARLY POLITICAL VIIOWS OF STORY. 333 
 
 of Essex were Federalists, and I was the first who was ob- 
 truded upon it as a political heretic. I was not a little 
 discouraged by this circumstance, and contemplated a 
 removal as soon as I could find a better position or prospect 
 elsewhere. For some time I felt the coldness and estrange- 
 ment resulting from this known diversity of opinion ; and 
 taking, as I did, a firm and decided part in politics, it was 
 not at all wonderful that I should be left somewhat solitary 
 at the bar." 
 
 In his letter of March 30, 1803, to Duvall, afterwards the 
 dissenting judge in the College case, declining the position 
 of naval oflicer at Salem, while expressing his gratitude for 
 the appointment, Story says: "To one just entering life, 
 without patronage or support other than what must be 
 derived from juridical pursuits, and at a period when per- 
 sons older in the profession are so numerous as to absorb 
 almost all lucrative business, it was a circumstance peculiarly 
 ofrateful. If the extreme deij-ree of virulence with which I 
 have been persecuted, in a county where all the judges and 
 lawyers are pertinaciously Federal, and the manifest at- 
 tempts to close against me the doors of professional emi- 
 nence be added to these considerations, you will readily 
 perceive that there exist great inducements for me to accept 
 the proposed office, and thereby secure to myself a moderate 
 independence, and freedom from oppression. * * * I 
 have long; had a desire to mio-rate southward, in order to 
 find a situation in which I should have only to compete with 
 the ordinary obstacles of my profession. In your leisure, 
 should you recollect any situation favorable to my views, 
 the information would be grateful to me." 
 
 Ill his letter of June 6, 1805, to his classmate Williams, 
 in Baltimore, he says : " Your account of Baltimore charms 
 me. I have long had a desire to sojourn in some southern 
 clime, more congenial with my nature than the petty pre- 
 judices and sullen coolness of New England. Bigoted in 
 opinion, and satisfied in forms, you well know that, in
 
 334 DARTMOUTH COLLEGE CAUSES. 
 
 ruling points, they too frequently shut the door against 
 liberality and literature. A man who will hazard a noble 
 action is not less exposed than certain notorious saints of 
 old. Indeed, if I mistake not, the same spirit, under dif- 
 ferent forms, is revived, though I have good reason to 
 believe we have no ivitches amongst us. Could I obtain 
 any respectable situation in your pleasant climate and 
 hospitable city, I hardly know how I could refuse it." 
 
 Notwithstanding his after-acquired dislike of "Virginia 
 politicians " and the Southern people, he seems to have re- 
 tained his kindly feelings toward Baltimore, for, at a later 
 day, he had serious thoughts of resigning his place upon the 
 bench and taking the cast-off sandals of great Pinkney. 
 
 In the letter from which we have just quoted, he further 
 says : " My situation is pleasant here, so far as it respects 
 friends. The whole Republican party are my warm ad- 
 vocates. Federalism has persecuted me unremittingly for 
 my political principles ; but, as my life has been sacredly 
 pure, they do little else than accuse me of ' being a Bona- 
 parte in modesty and ambition.' Convinced every day more 
 and more of the purity of the Republican cause, and be- 
 lieving it to be founded on the immutable rights of man, I 
 cannot and will not hesitate to make any sacrifice for its 
 preservation. Yes, my dear friend, though I have suffered 
 the hardness of oppression, I feel satisfied that at least I 
 am not mistaken for a dependant or a minion." (1 Life of 
 Story, 95, 106. ) His practice steadily increased in his own 
 State, and for some years, until its more pressing duties 
 nearer home compelled him to relinquish it, he had a re- 
 spectable business in Rockingham County, New Hampshire. 
 
 The tide had turned ; the spirit which inspired Thomp- 
 son's letter to Professor Adams, from which we have already 
 quoted, to " put down a certain man," was baffled ; Story 
 had won. Henceforth he became a leader of his party, and 
 occupied that position until he went upon the bench. 
 " Owing to the fact," he says, " that there were few profes-
 
 STORY IX MASSACHUSETTS LEGISLATURE. 335 
 
 sional men in the Commonwealth at that time belongins: to 
 the Republican party, and of those fe^y scarcely any in the 
 Legislature, I was soon compelled, notwithstanding my 
 youth, to become a sort of leader in debate, and I may say 
 that I occupied that station de facto during all my legisla- 
 tive life." 
 
 His appointment to the bench at the early age of thirty- 
 two is not to be ascribed to his merits, marked as they were. 
 It was due to the " accident of circumstances." Judsfe 
 Gushing, a feeble old man, seventy-seven years of age, died 
 in 1810. The position "belonged," in the phrase of the 
 politicians, to Massachusetts proper, and to the party in 
 political affiliation with the administration. The range for 
 a proper selection there was exceedingly limited. Nobody 
 thought of Story. Mr. Madison, who knew him well, on 
 January 3, 1811, appointed Levi Lincoln, who had been the 
 attorney-general of Jefferson, and the acting secretary of 
 state before Madison assumed the duties of the office, to fill 
 the vacancy, and personally pressed him to accept it. But 
 Lincoln was compelled to decline, because of the blindness 
 that was creeping fast upon him. John Quincy Adams was 
 appointed in the place of Lincoln, February 22, 1811, and 
 declined upon the ground, as is understood, that his tastes 
 and mind were not judicial, and because he preferred to 
 retain the position which he then held as ambassador to St. 
 Petersburg. In this dilemma, Mr. Bacon, a member of the 
 House of Representatives from Massachusetts, and his per- 
 sonal friend, suggested the name of Story. Very much to 
 the surprise of the latter, Madison appointed him. He was 
 confirmed November 18, 1811, and took his seat at the next 
 term of the Supreme Court. 
 
 What was generally thought of this appointment at the 
 time, and especially by his political opponents, is thus stated 
 by the partial pen of his son : ' ' The ability and learning 
 displayed by him at the bar, as well as the spotless character 
 with which he had passed through the fiery ordeal of politics,
 
 336 DARTMOUTH COLLEGE CAUSES. 
 
 had won for him the respect and confidence of a large class. 
 But there were not wanting those who looked upon his ele- 
 vation with an inauspicious eye. Party animosities were 
 then very bitter, and among his political opponents his 
 appointment was ridiculed and condemned. Bigoted in their 
 prejudices, some honestly thought that none but a fool or a 
 knave could entertain Repulilican opinions ; and others, 
 from his youth and active political course, augured a multi- 
 tude of evil consequences." 
 
 A few " leaves from life " will show better than any words 
 of ours that this astute politician lost none of his great 
 powers by his transfer from the caucus to the consultation- 
 room. 
 
 An intimacy, personal and political, had subsisted for 
 years between Story and Governor Plumer. They were 
 both Massachusetts men ; were born in the vicinity of each 
 other ; had practised at the Rocldngham bar ; had shared the 
 same general views in regard to the embargo, the restrictive 
 policy, and the great measures which preceded and arose 
 during the war of 1812. 
 
 In September, 1815, Governor Plumer visited Story, as 
 well as other friends, at or near his birthplace. In his 
 journal, under the date of September 16, 1815, he says : 
 "At Salem I spent an afternoon with Joseph Story, one 
 of the judges of the Supreme Court of the United States. 
 He said the judges of that court had informally considered 
 the question whether the governor of a State was bound, on 
 the requisition of the president, to order the militia into the 
 service of the United States. He could, he said, discover 
 no diversity of sentiment among them ; he believed they 
 were unanimously of opinion that the governors were 
 bound to obey the requisition, and regretted that neither 
 the president nor Congress had required their opinion on 
 the subject. He complimented me on my speech to the 
 Legislature in November, 1812, upon the question of order- 
 ing out the militia, and said that my reasoning appeared to
 
 PLUMER STATE COURT WEBSTER. 337 
 
 him conclusive. He mentioned of his own accord tliat he 
 had considered the hxw of New Hampshire of 1813, estab- 
 lishing the new judiciary, and w^as of opinion that it was 
 unconstitutional," (Life of Plumer, 430, 431.) 
 
 This simple statement from the pen of a friend portrays 
 Story's whole judicial life. 
 
 The Constitution of New Hampshire provides that the 
 judges " shall hold their offices during good behavior." 
 The Federalists came into power in 1813, upon the anti-war 
 issue. One of their first acts was to blot out the inferior 
 courts, abolish the Superior Court, — the constitutional 
 court of last resort, — turn out the old judges, by repealing 
 the act creating these courts, and to establish a new system 
 upon their ruins. This led to grave complications. Some 
 of the old judges held the act void, and went on holding 
 their terms, as did the new ones ; some sheriffs recognized 
 the new, and some adhered to the old, court. The result 
 was scandal and disturbances, but no bloodshed. 
 
 When the Anti-Federalists, under the lead of Plumer, 
 came again into power, a few months after this interview 
 with Story, they acted in accordance with his opinion, in 
 which Plumer and other leaders coincided, repealed the act of 
 June 24, 1813, under which the new judges held their offices, 
 removed them by address, upon the ground that the law 
 was unconstitutional, and restored the old system. No man 
 knew the facts better than Webster ; but when, in his ar^^-u- 
 ment in the College case, he went out of his way, for a pur- 
 pose, to assail with unwonted severity the State government 
 of 1816, and especially its Legislature and the judiciary, he 
 preserved a guarded silence as to the cause of it, which was 
 the revolutionary proceedings of his political associates in 
 1813. He was careful not to suggest that the weight of his 
 great influence had been given to make it a partisan bench. 
 Story could have advised Marshall of the truth, had he seen 
 fit, but the tone and coloring of the opinion of the chief 
 shows that he did not know it.
 
 338 DARTMOUTH COLLEGE CAUSES. 
 
 Nothing could be more characteristic of Story than what 
 he said to Governor Phimer about the power of the presi- 
 dent to call out the militia, and this informal decision of the 
 Supreme Court of the United States. 
 
 The Constitutions of Missouri, Maine, Massachusetts, 
 New Hampshire, and perhaps other States, are substantially 
 alike in one respect ; they grant to the other departments 
 of the State government the power to " require " the opin- 
 ions of the judges of the highest court upon important ques- 
 tions of law, and upon solemn occasions. The opinions in 
 37 Mo. 193, 51 Mo. 140, 55 Mo. 498, and that of Judges 
 Richardson and Bell, from which we have already quoted, 
 show that no limits to this loose and ill-defined power have 
 ever been fixed or established. In the Federal Convention, 
 August 20, 1787, Pinkney submitted, among others, the 
 following proposition : " Each branch of the legislature, as 
 well as the supreme executive, shall have authority to require 
 the opinions of the Supreme Judicial Court upon important 
 questions of law, and upon solemn occasions." This project 
 was referred to the committee on detail, and never afterward 
 heard of. The plan for associating the judges of the 
 Supreme Court with the executive as a ' * council of revis- 
 ion," invested ^vith a veto power, though supported by some 
 of the purest and ablest men in that body, was defeated by 
 a large majority. No such provision, and none anywise akin 
 to it, ever existed in the Constitution of the United States, 
 and no man knew it better than Story. It has been truly said 
 of him that he absorbed jurisdiction like a sponge. The 
 Constitution became in his hands a most elastic instrument. 
 He derived this power, as he did many others, by a con- 
 struction so " liberal " that it was well-nigh limitless. 
 
 The Legislature of New Hampshire, in 1794, authorized 
 the governor to call out the militia whenever required by 
 the president. Governor Plumer, in 1812, promptly obeyed 
 the requisitions made upon him, and was assailed with great 
 virulence therefor. Governors Strong, of Massachusetts,
 
 STATE CONSTITUTIONS. 339 
 
 and Griswold, of Connecticut, refused to obey similiir requi- 
 sitions, upon the ground that the governor of each State 
 was the sole judge whether the exigency contempleted by 
 the Federal Constitution had arisen ; and it was also held in 
 Massachusetts and Vermont, that although the president, 
 when actually in the field, could command the militia, yet 
 he could not put them under any but their own State offi- 
 cers. The opinions of Judges Parsons, Parker, and Sewall, 
 given to Governor Strong, are to be found in the eighth 
 volume of Massachusetts Reports, 547-550. This great 
 question was first decided by the Supreme Court in 1827, in 
 Martin v. Mott, 12 Wheat. 19. Story delivered the opinion 
 of the court. It is needless to add that he adhered to the 
 informal decision which he had announced to Plumer so 
 many years before. 
 
 In the absence of special rules, no " indecorum," to use 
 Webster's phrase, would be committed if counsel furnished 
 their arguments, written or printed, to every member of the 
 court. We commented in a previous chapter upon the fact 
 that Webster furnished his argument, through Story, to 
 sotne of the judges, and not to others. 
 
 The long struggle between Story and the Supreme Court 
 of New Hampshire, with Joel Parker at its head, over the 
 construction of a clause in the Bankrupt Act of 1841, is not 
 yet entirely forgotten. The proviso in that act expressly- 
 provided that nothing in the act should be ' ' construed to 
 annul, destroy, or impair * * * any liens, mortgages, 
 or other securities on property, real or personal, which may 
 be valid by the laws of the States respectively ; ' ' and the 
 question was, whether an attachment, made in accordance 
 with the laws in New Hampshire, and which had, in sub- 
 stance, been in force since they were enacted in Massachu- 
 setts (of which New Hampshire was then a part) nearly two 
 hundred years before, was such a lien or security. No man 
 knew the time when it had not been denominated a lien by 
 the courts in New Hampshire. It had been termed a
 
 340 DARTMOUTH COLLEGE CAUSES". 
 
 security in the statutes for many years before the existence 
 of the Bankrupt Act. Story, in one of his works, had 
 affirmed that such attachments were liens. The same view 
 had been taken by the highest courts of Massachusetts, 
 Maine, and Connecticut, b}'^ many of the most eminent law- 
 yers in these States, and by some of the ablest Federal 
 judges. Story was the author of this Bankrupt Act, which 
 had been a pet hobby with him from the time he came to 
 the bench. Nearly a quarter of a century before its pas- 
 sage, he had importuned Webster to ask him to frame such 
 a law. He dinned it in the ears of his associates, and emi- 
 nent and influential members of Congress, until it passed. 
 Grave questions arose as to the extent of the power granted 
 by the Constitution to Congress. The discussions at the 
 bar, the speeches of Mr. Benton and other eminent states- 
 men, and the reports of the Supreme Court, to which we 
 have already referred, show how greatly professional opinion 
 was divided. Story decided many of these questions in the 
 same way that he did others in his interview with Governor 
 Plumer. His opinion, in substance, was that the act was 
 uniform ; that its constitutionality must be upheld ; that it 
 was a good law ; that the court must supply its defects, fill 
 the gaps, by a "liberal" construction; that the act gave 
 the district and circuit judges the power to " overhaul " and 
 " control " all State courts and all proceedings therein. 
 
 There is at least one member of the New Hampshire bar 
 still living who remembers the peculiar smile and glistening 
 eye of Judge Parker when he related what Story had said. 
 It is, perhaps, to this incident to which Parker alludes in 
 the close of his opinion in Kittredge v. Warren, when he 
 sa3^s : "We have only to remark, farther, in conclusion, 
 that we have been strongly impressed from the first with 
 the views now expressed ; and the extended examination we 
 have made has left no reasonable doubt upon our minds 
 respecting the result." 
 
 The Supreme Court of New Hampshire at the time of
 
 CONTROVERSr BETWEEN STORY AND JUDGE PARKER, 341 
 
 this collision, to use the words of Mr. Bishop, was " one of 
 the most able judicial tribunals in the Union." 
 
 Judge Parker was as ' ' indefatigable ' ' as Webster said 
 John Wheelock was. He was a great lawyer, a great judge, 
 and a great man. Chief Justice Bell, one of his successors, 
 well said of him : " He was a most formidable antagonist, 
 and combined the strenoth of five men with the sensitiveness 
 and tenacity of ten women." He was a Federalist and a 
 Whig of the iron stamp ; but such was the respect felt for 
 him by his political opponents, that, of their own accord, 
 they first made him judge and then chief justice of the 
 highest court of the State, and sustained him in that position 
 from first to last. 
 
 In April, 1842, Story gave an elaborate oj)inion in Ex 
 parte Foster, 2 Stor}^ 131. Before the filing of the peti- 
 tion, the property of the bankrupt had been attached on 
 mesne process in one of the Massachusetts courts. He 
 applied to the district judge for an injunction to restrain 
 further proceedings in the State courts, and requiring the 
 property to be handed over to the assignee. The District 
 Court certified the questions to the Circuit Court. Story 
 decided that the attachment was not protected by the 
 saving clause, and adhered to his opinion that the State 
 courts were but wax in the hands of the District and Circuit 
 Courts, and that these Federal judges could " overhaul, 
 control, or set aside" the proceedings and judgments in 
 the State courts, just as, in Martin v. Mott, he afiirmed the 
 opinion he had given Governor Plumer eleven years before. 
 
 In Kittredge v. Warren (14 N. H. 509 —January, 1844), 
 William H. Duncan, the son-in-law of Trustee Olcott, and 
 the brother-in-law of Rufus Choate, who still lives, as he 
 always has, right under the shadow of the College, was 
 counsel for the defendant. He relied on the reasoning 
 and authority of Ex parte Foster. This drew from Judge 
 Parker, as the organ of the court, an able adverse opinion, 
 nearly thirty pages in length. In July, 1844, Story, in the
 
 342 DARTMOUTH COLLEGE CAUSES. 
 
 matter of Bellows and Peck (3 Story, 428), reaffirmed his 
 opinion in Ex parte Foster, and replied to that of Parker 
 in Kittredge v. Warren, in language and with an emphasis 
 which showed how deeply his self-love had been wounded. 
 At the July term, 1844, Parker, again speaking for the 
 Supreme Court, responded in a masterly opinion in Kit- 
 tredge V.Emerson (15 N. H. 227-280). In closing, he re- 
 Ijlied to Story's threat with the distinct notice that the State 
 court would protect its jurisdiction and officers at all 
 hazards, and intimated that it might not be entirely safe 
 for those who might attempt to execute the threat. The 
 State court ordered judgment for the plaintiif. Nobody 
 attempted to interfere with the execution of its mandate. 
 On June 5, 1844, the governor of New Hampshire, in his 
 message, called the attention of the Legislature, then in 
 session, to the controversy, and the perils that must flow 
 from it. 
 
 On December 26, 1844, the House, sweeping away party 
 lines, almost unanimously passed a joint resolution sustain- 
 ing " the firm and decided stand " of the court " in opposi- 
 tion to the unwarrantable and dangerous assumptions of the 
 Circuit Court of the United States." On December 31, 
 1844, Story responded to Parker and the State government 
 with his opinion in Ex parte Christy (3 How. 292), dragging 
 the majority of the Supreme Court of the United States into 
 this controversy between himself and Judge Parker, in an 
 opinion upon a point which that court could not properly 
 consider in that case. 
 
 This was a "motion" made in the Federal Supreme 
 Court, in behalf of the City Bank of New Orleans, that a writ 
 of prohibition issue to the United States District Court of 
 Louisiana, restraining it from proceeding further in Christy's 
 case. It was so evident that no power had been conferred 
 upon the Supreme Court to issue such a writ in such a case, 
 that even Story decided, in five lines, without either reason- 
 ing or the citation of authorities, that the court had no
 
 STOKY AND PARKER ACTION OF LEGISLATURE. 343 
 
 jurisdiction ; but he nevertheless went on with an opinion of 
 fourteen pages, which is a marvel for its ability and obscurity, 
 as well as its contradictory character, in attempting to show 
 that if the court had had jurisdiction, Judge Parker, in his 
 opinion, was very much in error. Story has taken pains in 
 his private correspondence to show us, beyond a doubt, what 
 his purpose was in writing this opinion. 
 
 In his letter of January 1, 1845, to his son, he says: 
 ' ' Yesterday I delivered the opinion of the court in a 
 great bankrupt case from New Orleans, embracing the 
 question of the nature and extent of the jurisdiction of the 
 District Court in matters of bankruptcy. It was an elabo- 
 rate review of the whole statute, and we sustained the juris- 
 diction of the District Court over all matters whatsoever, 
 and recognized (as, indeed, was one of the points) the 
 right of the court to grant an injunction to proceedings and 
 suits in the State courts. The opinion covers the whole 
 ground in Ex parte Foster, and also in the New Hampshire 
 cases, which have heen so stoiitJi/ contested in the State 
 courts. * * * I took great pains about it, and the court 
 fully confirmed all my views. Judge Catron alone dis- 
 sented." 
 
 Judge Catron, with whom Judge Daniel concurred, admin- 
 istered to Story a dignified l)ut stinging rebuke for the 
 course taken by him in this opinion. He said: " By the 
 fourteenth section of the Judiciary Act, this court has power 
 to issue writs proper and necessary for the exercise of its 
 jurisdiction ; having no jurisdiction in any given case, it can 
 issue no writ. That it has none to revise the jDroceedings of 
 a bankrupt court, is our unanimous opinion. So far we 
 adjudge, and in this I concur. For further views why the 
 prohilfition cannot issue, I refer to the conclusion of the 
 principal opinion. But a majority of my brethren see proper 
 to go further, and express their views at large on the juris- 
 diction of the bankrupt court. In this course I cannot con- 
 cur ; perhaps it is the result of timidity, growing out of
 
 344 DARTMOUTH COLLEGE CAUSES. 
 
 long-established judicial habits in courts of error elsewhere, 
 never to hazard an opinion when no case was before the court, 
 and when that opinion might be justly arraigned as extra- 
 judicial, and a mere dictitm, by courts and lawyers ; be partly 
 disregarded while I was living, and almost certainly be 
 denounced as undue assumption when I was no more, — a 
 measure of disregard awarded with an unsparing hand, here 
 and elsewhere, to i\\Q,,clicta of State judges under similar 
 circumstances. And it is due to the occasion and to myself 
 to say, that I have no doubt the dicta of this court will only be 
 treated with becoming respect before the court itself so long 
 as some of the judges who concurred in them are present on 
 the bench, and afterwards be openly rejected as of no 
 authority, — as they are not." 
 
 In Peck V. Jenness (16 N. H. 516-537— July, 1845), 
 Judge Parker, for obvious reasons, disregarded this opinion 
 in Ex parte Christy. In this case (7 How. 612-626), at the 
 December term, 1848, four years after Story read his 
 opinion in Ex parte Christy, the Supreme Court of the 
 United States unanimously decided that Parker was right, 
 and Story wrong. 
 
 The written opinion to Webster, of December 25, 1833 
 (2 Life of Story, 155-158), upon a variety of questions, 
 raised by certain acts of the president and Mr. Taney, in the 
 great bank war, is another illustration of the way in which, 
 during his whole judicial life, he sowed on every hand his 
 written and oral opinions upon questions he was likely to be 
 called to decide as a judge. The harvest which these 
 dragon's teeth produced was sometimes more perilous than 
 armed men.
 
 CHAPTER XIY. — CoNTmuED. 
 
 Story, "in the end," supplemented the opinion that the 
 charter was protected by the obligation clause. This was 
 the natural result of his new views, adopted after his ele- 
 vation to the bench, under the influence of the seductive 
 power of Marshall and the promptings of his vast ambition, 
 that the controlling purpose of this clause, as of many 
 others, was not to protect private rights, but to subserve 
 great political ends ; or, as it is put by Webster, in his 
 celebrated argument in Ogden v. Saunders, which Story 
 indorsed, if he did not originate : " The inquiry then recurs, 
 whether the law in question be such a law as the Legisla- 
 ture of New York had authority to pass. The question is 
 general. We differ from our learned adversaries on general 
 principles. We differ as lo the main scope and end of this 
 constitutional provision. They thinh it entirely remedial; 
 we regard it as preventive. They think it adopted to pro- 
 cure redress for violated private rights ; to us it seems 
 intended to guard against great public mischiefs. They 
 argue it as if it were designed as an indemnity or protection 
 for injured private rights in individual cases of meiim and 
 tuum; we look upon it as a great political provision, favor- 
 able to the commerce and credit of the whole country. 
 Certainly we do not deny its application to cases of violated 
 private right. Such cases are clearly and unquestionably 
 within its operation. Still, we think its main scope to be 
 general and political." And in his recapitulation, Webster 
 says: "Sixthly, that upon any other construction, one 
 great political object of the Constitution will fail of its 
 accomplishment. ' ' 
 
 Marshall, though firm and decided, was by nature a mode- 
 
 (3-15)
 
 346 DARTMOUTH COLLEGE CAUSES. 
 
 rando. Circumstances, personal and political, intensified 
 his views as he advanced in life. Jay and JeiFerson were 
 the antipodes in American politics. In 1785, Jay thus 
 expressed his convictions : * ' It is my first wish to see the 
 United States assume and merit the character of one great 
 nation, whose territory is divided into different States 
 merely for more convenient government, and the more 
 easy and prompt administration of justice ; just as our 
 several States are divided into counties and townships for 
 the like purposes." Just before the Federal Convention 
 which framed the Constitution met, he wrote to General 
 Washington: "What powers should be granted to the 
 government so constituted is a question which deserves 
 much thought. / thiJik the more the better; the States 
 retaining only so much as may be necessary for domestic 
 purposes, and all their principal officers, civil and military, 
 being commissioned and removable by the national govern- 
 ment." In his opinion in Chisholm v. Georgia, and sub- 
 sequently. Jay adhered to the same general views. 
 
 A few extracts from Story's private correspondence will 
 show how fully, after his lurch from the school of Jefferson, 
 he shared the views of Jay. In his letter of February 22, 
 1815, to Williams, Story says : " Let us extend the national 
 authority over the whole extent of power given by the Con- 
 stitution. Let us have great military and naval schools ; 
 an adequate regular army ; the broad foundations laid of a 
 permanent navy ; a national bank ; a national system of 
 bankruptcy ; a great navigation act ; a general survey of our 
 ports, and appointments of port- wardens and pilots ; judicial 
 courts, which shall embrace the whole constitutional powers ; 
 national notaries ; public and national justices of the peace, 
 for the commercial and national concerns of the United 
 States. By such enlarged and liberal institutions, the 
 government of the United States will be endeared to the 
 people, and the factions of the great States will be rendered 
 harmless."
 
 story's national ideas. 347 
 
 In his letter of December 13, 1815, to the reporter, 
 Whcaton, in relation to the bankrupt law, etc., he says : " I 
 hope you will follow up the blow by vindicating the necessity 
 of establishing other great national institutions ; the exten- 
 sion of the jurisdiction of the courts of the United States over 
 the whole extent contemplated in the Constitution ; the ap- 
 pointment of national notaries-iDublic and national justices of 
 the peace ; national port-wardens and pilots for all the ports 
 of the United States ; a national bank and national bankrupt 
 laws. I have meditated much on all these subjects, and have 
 the details, in a considerable degree, arranged in my mind. 
 And, once for all, I most sincerely hope that a national 
 newspaper may be established at Washington, which, for its 
 talents and taste, shall entitle itself to the respect of the 
 nation, and preserve the dignity of the government." (2 
 Life of Story, 254-271.) 
 
 We have already commented upon some of the peculiarly 
 latitudinarian opinions given by Story to Governor Plumer. 
 Young Story, in his life of his father, from which we have 
 quoted, after commenting upon the case of Martin v. Hun- 
 ter's Lessee, says : — 
 
 " This was the first great constitutional judgment delivered by 
 my father. To this department of the law he had given little 
 study during his practice at the bar, and, although he had always 
 avowed himself to be a disciple of Washington, j^et, as the views 
 of the party to which he belonged were widely different from those 
 entertained b}'- the illustrious Chief Justice Marshall, no small curi- 
 osity was felt by his friends as to the determination his mind 
 should take on great constitutional questions. The Eepublicans 
 were strict constructionists of the Constitution, narrowing down 
 the powers of the Federal government to the express and exact 
 terms of that instrument, while the Federalists claimed a broader 
 and more liberal exposition in favor of the United States. * * * 
 Upon taking his seat on the bench, my father devoted himself 
 to this branch of the law, and the result was a cordial adherence 
 to the views of Marshall, whom he considered, then and ever after- 
 wards, as the expounder of the true principles of the Constitution.
 
 348 DARTMOUTH COLLEGE CAUSES. 
 
 Nor did this indicate so much a change as a formation of opinion, 
 and it is no slight indication of his independence and emancipation 
 from the influence of party that he resigned, upon careful study 
 and examination into the history and principles of the Constitution, 
 his early prejudices in favor of Mr. Jefferson's abstractions for 
 the clear and practical doctrines of Marshall. * * * jjis was 
 the consistency of truth — to the living thought of the present, 
 not to the dead opinion of the past. ' ' 
 
 The partial pen of the son has done injustice to his 
 father. Story and Marshall sometimes rode abreast ; some- 
 times Story, like Johnson, concurred in the opinions and 
 judgments of Marshall from which he dissented, as in the 
 case of United States v. Bevans, 3 Wheat. 336 ; and some- 
 times, as in the College causes and the case of the Cherokee 
 Nation, he far outran the chief justice. 
 
 It is not true that this astute politician and learned law- 
 yer was without opinions upon great constitutional questions, 
 or that he had failed to study them before his accession to 
 the bench. In the broils and discussions, legal and political, 
 which grew out of the embargo, restrictive policy, etc., he 
 had scaled the heights and measured the depths of the great 
 powers conferred upon the general government over com- 
 merce. The same is true of the treaty-making power, and the 
 provisions in relation to treason, as well as the great powers 
 which give control over the purse and sword of the nation. 
 On February 17, 1810, he argued the great Georgia case 
 before the Supreme Court of the United States with con- 
 summate ability, and he did not do this till after he had 
 carefully studied the obligation clause. 
 
 The nominal hearing in the causes, which had been sent 
 up from his circuit, and remanded, was had before Story on 
 May 27, 1819. 
 
 In his letter to Mason, of February 23, 1819, Webster 
 says : " As to their facts, which they say are new, they will, 
 I apprehend, be told that, if admitted, they would not 
 alter the result ; and, in the next place, that the court con-
 
 story's constitutional studies NEW FACTS. 349 
 
 siders the recital of the charter as conclusive upon the facts 
 contained in it." (Mason's Mem. 221.) 
 
 In his letter to Mason, of April 13, 1819, already quoted, 
 he said : " I flatter myself the judge [Story] will tell the de- 
 fendants that the new facts which they talk of were presented 
 to the minds of the judges at Washington, and that, if all 
 proved, they would not have the least effect on the opinion 
 of any judge.'- (Mason's Mem. 223.) This was wrecks 
 before the facts were put in evidence before Story. If so 
 joresented to the minds of the judges, it must have been 
 months before the formal hearing before him. 
 
 Webster in his letter to Mason, dated at Boston, May 27, 
 1819, says: "Mr. Austin read this morning a mass of 
 papers about the new facts. The judge thought there was 
 nothing in them, but has taken the papers for a day or two 
 to examine them before he gives a formal decision. He 
 says he sees nothing which contradicts any part of the re- 
 cital of the charter. We had not much talk about it. Mr. 
 A. read & stated all he chose to do, & the judge intimated 
 that the new facts had no bearing on any part of the court's 
 opinion." (Mason Papers; Harvey's Webster Papers.) 
 
 Webster, in his letter to Brown, of May 30, 1819, says : 
 *' James T. Austin, Esq., in behalf of the University, pre- 
 sented the new facts to Judge Story on Thursday. They 
 were what we expected and no more. The judge said he 
 saw nothing to vary at all the case as it had been considered 
 and decided. None of these ' facts ' if true changed the 
 ground, nor did he see any the least contradiction between 
 any of these facts and the recitals of the charter. He was 
 willing however to take the papers and read them atten- 
 tively, to the end that he might fully ascertain whether they 
 presented any new point w^hich could be material. He 
 accordingly took home the papers, and to-morrow or the 
 next day will probably announce his final decision. There 
 is no doubt about it. These new facts whether true or false 
 have nothing to do with the question, and you may expect
 
 350 DARTMOUTH COLLEGE CAUSES. 
 
 judgment and execution in the causes in the Circuit Court, 
 June 10, as by arrangement made at Portsmouth." (1 
 Webster's Priv. Cor. 306.) 
 
 The new facts were precisely what Webster " expected." 
 What were they? Let Judge Smith, his associate, answer. 
 In his letter to Mr. Brown, of December 18, 1818, Smith 
 says: "Immediately after I sent to the post-office my 
 letter to you of yesterday, Mr. Sullivan and -Mr. Ich. Bart- 
 lett, with Mr. Upham, of the University, culled on me with 
 a bundle of pajDers, to be certified as authentic, and to be 
 used in the argument of the College causes, if adjudged 
 pertinent or proper evidence." These papers were termed 
 by him " the Wheelock papers." We have, together with 
 this letter, the original schedule, in the handwriting of Judge 
 Smith. The papers are ranged in the schedule under 
 numerous heads, commencing with the printed " narrative " 
 of the elder Wheelock, and ending with an abstract from 
 his Avill. The schedule covers numerous letters, records, 
 and papers, including those in the matter of Landafl". The 
 written headings alone cover nine long pages. We have re- 
 ferred to this evidence, and Brown's abstract of it, in pre- 
 vious chapters. 
 
 Aside from Story's passion, to which we have already 
 referred, of gathering every item of legal, political, and 
 judicial gossip, he had the amplest facilities for becoming 
 perfectly familiar y»ath the history of these proceedings 
 which resulted in the College suits. 
 
 At the first hearing upon the causes in the Circuit Court, 
 in May, 1819, Judge Story read an elaborate opinion, sup- 
 posed to be substantially the same as that filed with the 
 reporter in Trustees v. Woodward. No formal opinion is 
 understood to have been rendered at the second hearing. 
 
 Story's views in relation to these causes are undoubtedly 
 to be found in his opinion in Trustees v. Woodward, and 
 Allen V. McKeen, 1 Sumn. 27G-318. Story's decision in 
 tlie College causes, in efiect, annihilated Dartmouth Uni-
 
 EFFECT OF STORY 's DECISION BOWDOIN COLLEGE. 351 
 
 versity, handed over the munificent bequest which John 
 Wheelock hud made to it to a New Jersey college (as is 
 said, to Princeton), deposed William Allen, the president, 
 and drove him from Hanover. 
 
 In December, 1819, the same Dr. Allen became the 
 president of Bowdoin College, at Brunswick, Maine, which 
 office he held, in legal contemplation, till 1839. This col- 
 lege was chartered by the Legislature of Massachusetts, 
 June 24, 1794. This act provided for establishing the 
 college ; put it under the government of two bodies cor- 
 porate ; made the president, treasurer, and eleven others 
 one of these bodies, with perpetual succession ; provided 
 for the creation of a board of overseers ; gave the corpora- 
 tion power to declare the tenure and duties of certain 
 officers, with power to remove trustees, etc. The six- 
 teenth section gave the Legislature authority to "grant 
 any further powers to, or alter, limit, annul, or restrain 
 any of the powers by this act vested in, the corporation, as 
 shall be judged necessary to promote the best interests of 
 said college." The next section granted to the college 
 five townships, six miles square, to be laid out of any 
 unappropriated lands of the Commonwealth in the then 
 district of Maine, with the usual provisions that the cor- 
 poration might acquire jDroperty and take donations, etc. 
 
 The lands granted vested in the corporation, and dona- 
 tions were given it from time to time by private individuals. 
 The college boards were duly organized under the charter, 
 and the college went into operation in the year 1801. In 
 July, 1801, the corporation fixed the salary of the president 
 at $1,000 per annum, payable quarterly. Li 1805, this was 
 raised to $1,200. On November 4, 1801, the board declared 
 the tenure of the office of president to be " during good 
 behavior." The by-laws required every candidate to pay 
 $5 to the treasurer, for the president, and a like fee for 
 every medical degree. 
 
 Li May, 1820, Dr. Allen assumed the duties of this office,
 
 352 DARTMOUTH COLLEGE CAUSES. 
 
 with this known tenure and the salary and perquisites 
 annexed. In the same month the boards passed a vote 
 recitins: the clause in the Constitution of Maine as to endow- 
 ments, and declared that their consent be given that the 
 right to enlarge, limit, or restrain the powers given by tlie 
 charter might be vested in the Legislature of Maine, and 
 steps were taken to secure endowments. A variety of acts 
 were subsequently passed by the Legislature, which it is 
 unnecessary to consider. On March 31 , 1831 , an act passed, 
 aimed directly at Dr. Allen, providing " that no person hold- 
 ing the office or place of president in any college in this 
 State shall hold said office or place beyond the day of the 
 next commencement of the collei^e in which he holds the 
 same, unless he shall be reelected. And no person shall be 
 elected or reelected to the office or place of president unless 
 he shall receive in each board two-thirds of all the votes 
 given in the question of his election. And every person 
 elected to said office or place after the passing of this act 
 shall be liable to be removed at the pleasure of the board 
 of trustees, or hoard of trustees and overseers, which shall 
 elect him." "That the fees paid for any diploma, or medi- 
 cal or academical degree, etc., shall be paid into the treasury 
 for the use of the college, and no part shall be received by 
 any officer as a perquisite of office.'" 
 
 The boards, in September, 1831, duly voted " that they 
 acquiesce in said act, and will now, etc., proceed to carry 
 the provisions thereof into effect." The Board of Trustees 
 gave due notice to Dr. Allen, and then proceeded to elect a 
 president ; but no candidate having a majority of votes, no 
 choice was made, and the college remained without any 
 acknowledged president until the question was determined. 
 
 For some inscrutable reason, Dr. Allen brought assumpsit 
 for money had and received, not against the corporation, 
 but the treasurer of the college, for the salary and perqui- 
 sites of office due him, as he claimed, notwithstanding his 
 ejection from office under the vote of the boards, in Septem-
 
 BOWDOIN COLLEGE CASE STORY'S OPINION. 353 
 
 ber, 1831. Story decided that he could recover the perqui- 
 sites ill this suit, and affirmed the principle which lay at the 
 foundation of his opinion to Plumer in relation to the 
 Judiciary Act of 1813, and avowed by him in his opinion in 
 the College causes, — that an office so held was a contract pro- 
 tected by the obligation clause ; but that for the breach of 
 that contract he must proceed, not against the treasurer, 
 but his master, the corporation. 
 
 Dr. Allen was not only the son-in-law of John Wheelock, 
 but his confidant and one of his principal advisers in the 
 troubles which preceded, as well as those which followed, 
 the removal of Wheelock by the trustees. He was familiar 
 with the " inside history " of the causes, and Story's position 
 in reference to them. Allen and Dr. Perkins, to whose 
 week's conference with Pinkney we have referred, were the 
 principal managers of the College causes on the University 
 side after Wheelock' s death. Allen went to his grave with 
 the conviction, still shared by Wheelock' s descendants, that 
 a great wrong had been perpetrated under the color of a 
 judicial decision. The occasion was distasteful to Allen, 
 but he undoubtedly took pleasure in compelling Story to 
 decide in the case between him and Bowdoin the same ques- 
 tion which he had nominally decided in May, 1819, in the 
 College causes. If he won, he got his perquisites and the 
 arrears of his salary, established his right to the office, 
 defeated the purpose of the Legislature, and emasculated 
 the power of his personal and political enemies in the 
 boards ; if he lost, it was the vindication of himself and 
 Wlieelock and the University, and the condemnation of 
 Story. The reluctance with which Story met this issue is 
 but faintly shown by his ' ' outline ' ' and ' ' opinion ' ' in this 
 case. In closing his opinion, he says : "I have now finished 
 all that is necessary to be said for the decision of this cause. 
 But I cannot dismiss it without expressing my regret that it 
 has ever come before the court, and that I have been 
 deprived of the assistance of my learned brother, the dis-
 
 354 DARTMOUTH COLLEGE CAUSES. 
 
 trict judge, in deciding it. If this court were permitted to 
 have any choice as to the causes which should come before 
 it, this is one of the last which it would desire to entertain. 
 But no choice is left. This court is bound to a single duty, 
 and that is, to decide the causes brought before it accordmg 
 to law, leaving the consequences to fall as they may. 
 
 " It is impossible, in any aspect of the case, not to feel that 
 the decision is full of embarrassment. On the one hand, 
 the importance of the vested rights and franchises of this 
 literary institution has not been exaggerated ; and, on the 
 other hand, the extreme difficulty of successfully conducting 
 any literary institution without the patronage and cordial 
 support of the government, and under a head who may 
 (however undeservedly) not enjoy its highest confidence, is 
 not less obvious." 
 
 Allen V. McKeen was decided in May, 1833, fourteen 
 years after the decision in the last of the College causes. 
 
 This opinion should be read as an explanation of the 
 most important portions of the elaborate essay filed by 
 Story with the reporter, in Trustees v. Woodward. He says : 
 " Independent, however, of this general ground, there is 
 another of great weight and importance, and that is, that 
 President Allen was in office under a lawful contract made 
 with the boards, by which contract he was to hold that office 
 during good behavior, with a fixed salary and certain fees 
 annexed thereto. This was a contract for a valuable con- 
 sideration, the obligation of which could not, consistently 
 with the Constitution of the United States, be impaired by 
 the State Legislature." The general doctrine of Story, to 
 which, so far as appears, he consistently adhered from the 
 time of his conference with Governor Plunier till his death, 
 that filling an office was a contract protected by the Federal 
 Constitution, was overthrown by the Supreme Court in 
 1850 (Butler v. Pennsylvania, 10 How. 402), as it has been 
 by every reputable State court that has passed upon it. 
 
 We are not aware of any body that now indorses the
 
 story's views STATES MAIN QUESTION. 355 
 
 theory of Story and Livingston in the College case, in which 
 Marshall did not concur, that the marriage contract is within 
 the scope of the obligation clause. He further says : " But 
 if the acquiescence of the boards could be construed into an 
 approval of the act (as I think it ought not to be), still that 
 approval cannot give effect to an unconstitutional act. The 
 Legislature and the boards are not the only parties in 
 interest upon such constitutional questions. The people 
 have a deep and vested interest in maintaining all the con- 
 stitutional limitations upon the exercise of legislative powers, 
 and no private arrangements between such parties can super- 
 sede them." 
 
 Taken as it reads, this would seem to be in conflict with 
 the opinions in the College case. 
 
 He thus states the great question of the case : "Is it [the 
 charter] the erection of a private corporation for objects of 
 a public nature, like other institutions for the general 
 administration of charity? Or is it, in the strict sen.<te of 
 laiv, a public corporation, solely for public purposes, 
 and controllable at will by the legislative power which 
 erected it, or which has succeeded to the like authority? " 
 He concedes that the College " is, in some sense, a public 
 institution or corporation," and that this is the popular 
 sense in which the language is commonly used. He then 
 proceeds : " But in the sense of the law, a far more limited, 
 as well as more exact, meaning is intended by a public insti- 
 tution or corporation." 
 
 This, in effect, decides not only that all corporations, at 
 common law, were divided into two classes, public and pri- 
 vate, but that the term " public corporation " is a technical 
 phrase of the common law, to be construed in the narrow, 
 strict sense usually jDut by courts upon the technical words 
 of a penal code, while precisely the opposite construction 
 is put upon the term ' ' private corporation. ' ' His subsequent 
 indorsement of what has often been supposed a loose state- 
 ment in his opinion in the College case, shows that he meant
 
 356 DARTMOMUH COLLEGE CAUSES. 
 
 to assert that this rule was among '* the most solid founda- 
 tions of the common law." 
 
 If we may not apply to this the remark of Walpole, we 
 may at least that of Mr. Justice Campbell in Jackson v. 
 Steamboat Magnolia, in respect to another opinion of Story : 
 " The opinion * * * is celebrated for its research, and 
 remarkable, in my opinion, for its boldness in asserting 
 novel conclusions, and the facility with which authentic 
 historical evidence that contradicted them is disposed of." 
 (20 How. 336.) 
 
 As if fearing that some attempt might be made to relax 
 this rule, after quoting from his opinion in the College ca^e, 
 that towns, cities, parishes, and counties, existing for pub- 
 lic political purposes only, may in many respects be 
 "esteemed" public corporations, he quotes the following 
 passages, which, he says, "had the approbation of the 
 court: " " But, strictly speaking, public corporations are 
 such only as are founded by the government for public 
 purposes, iDhere the whole interests belong also to the gov- 
 ernment. * * * That is, where its whole interests and 
 franchises are the exclusive property and domain of the 
 government itself.'^ He further says that a bank " whose 
 stock is owned partly by private persons, and partly by the 
 government," is a private corporation. 
 
 The first United States Bank was incorporated with a 
 capital of $10,000,000, and the second with a capital of 
 $35,000,000. The " government," under the first charter, 
 was allowed to hold $2,000,000, and under the second, 
 $7,000,000 of the stock; and yet, in McCulloch v. Mary- 
 land, decided in 1820, and Osborn v. The Bank, decided in 
 1824, Story concurred in the opinion that the Bank of the 
 United States was " a public corporation, created for public 
 and national purposes." 
 
 That Story and Marshall had, as they were wont to do, 
 decided the vital question upon this point, raised by these 
 cases, years before it came before them judicially, is well
 
 UNITED STATES BANK BANK CASES. 357 
 
 known. The court treated the United States Bank as 
 one of the '< mstrumentalities of the government," and 
 so might a State bank be treated as one of the instrumen- 
 talities of a State government. The distinction taken was, 
 to say the least, convenient. 
 
 The decision in Briscoe v. Bank, etc., of Kentucky (11 
 Pet. 257) was, "that when a State becomes a stockholder 
 in a banking institution, it imparts none of its attributes 
 of sovereignty to the latter, and can, as a stockholder, 
 exercise no other power than any other holder of stock for 
 the same amount." 
 
 Judge Story said : ' ' When this cause was formerly argued 
 before this court, a majority of the judges who then heard 
 it were decidedly of opinion that the act of Kentucky 
 establishing this bank was unconstitutional and void." 
 
 The decision in this case is especially noticeable for a 
 reason to which no reference has been made. The corpora- 
 tion was a bank, created and owned entirely by the State 
 of Kentucky. It came fully within the remarkable defini- 
 tion of a " public corporation " given by Story in Allen v. 
 McKeen, to wit, one where the " wliole interests and fran- 
 chises are the exculsive property and domain "of the State ; 
 for he says, in his opinion in Briscoe's case: " It is clear, 
 therefore, that the bank was a mere artificial body or cor- 
 poration, created for the sole benefit of the State, and in 
 which no other person had or could have any share or 
 interest." He then went on to hold that the State could 
 not confer upon such a corporation the power to issue 
 bank-bills. 
 
 If these opinions are well founded, either the fathers 
 must have been the most unfortunate of men in the use 
 of language, or their great, if not paramount purpose must 
 have been, Jirsi, to render it almost impossible for a State 
 to give legal existence to a jDulilic corporation " in the strict 
 sense ;" and, second, if perchance such an artificial person 
 should struggle into existence, to cut down its powers to
 
 358 DARTMOUTH COLLEGE CAUSES. 
 
 the lowest limit ; for the principle, if sound, does not stop 
 with the prohibition against the issue of bank-bills. If such 
 was their purpose, it is incredible that they should not have 
 manifested it in the plainest and most unequivocal terms. 
 There is not a shred of history or a word in the debates 
 that affords any warrant for such an inference. The proba- 
 bilities are millions to one that no such definition or distinc- 
 tion, or any thought of either, ever occurred to the mind 
 of any member of the Convention. 
 
 But, in our examination of the history of these opinions 
 in relation to the distinction between public and private cor- 
 porations, we have been often forcibly reminded of what a 
 snowy-haired chief justice — one of a family eminent for its 
 scholars and jurists, and standing high on the roll of judicial 
 fame, both in State and nation — once said to us about the 
 mass of opinions upon constitutional questions : ' ' They are 
 filled with ingenious reasoning, ingeniously stated, for the 
 purpose of enabling the court to reach a conclusion at which 
 it wishes to arrive." 
 
 Story adds, in relation to Bowdoin College : " The Com- 
 monwealth of Massachusetts is its founder, having given it its 
 original funds. But it is made capable of receiving, and has 
 actually received, funds from the bounty of private donors." 
 
 Baron Wood, in his Institutes, upon abundant authority, 
 says : " He who gives the first possessions is the founder of 
 it, though they are but of small value ; so that a common 
 person may be founder, though the king shall afterwards 
 endow it with great possessions." It is enough to say that 
 this duplex rule, by which a " iiublic " corporation is con- 
 strued with so much strictness and a ' ' private ' ' one with 
 such " liberality," was never heard of by any body l)efore 
 the College case. Taken in its obvious sense, and with 
 Story's indorsement of the argument of Mason in the State 
 court, it would transform the generality of towns, either 
 essentially or absolutely, into private corporations. Not a 
 few towns were chartered, under seal, upon a consideration,
 
 THEORY OF FOUNDATION. 359 
 
 ill the nature of a periodic rent to the throne, with an ab- 
 solute grant of all the lands in the town to the persons 
 therein named, who were endowed with "perpetual suc- 
 cession," with a variety of interests reserved either to the 
 throne or for the benefit of private individuals. In others 
 the power to divide the same, etc., was expressly reserved ; 
 and in others the name alone was given, without any specifi- 
 cation of other rights, powers, or privileges. 
 
 Coke, in the case of Sutton's Hospital, says: "As to 
 the seventh objection, it is to be known that in law there 
 are two manner of foundations : one, fundatio incipiens; 
 the other, fundatio perficiens; and therefore, quatenus ad 
 capacitatem et JiahiUtatem, the incorporation is, metaphoynce, 
 called the foundation, for that is the bemnnino; as a founda- 
 tion, quasi fundamentum capacitatis, preceding the whole. 
 * * * 8ed quatenus ad dotationem, the first gift of the 
 revenues, is called the foundation, and he loho gives it is the 
 founder in latv, for piropria fundatio est quasi fundatio; 
 and the first gift is fundamentum dotalionis sen collaiionis , 
 et appellatione fundi cedificium et ager continentur ; and that 
 is proved by the statute of West. 2, c. 41. * * * And 
 in the report I have omitted all the arguments which were 
 made at large upon both sides, upon one common ground, 
 where one act shall at one instant enure to divers intents 
 distinct in time, some holding that the bargain and sale 
 amounts not only to a dotation, but also to a foundation, 
 and other totis viribus e contra; for it appears to you now, 
 without question, that the first dotation is the foundation." 
 (5 R. Part X., pp. *28, *32.) 
 
 If Coke and Baron Wood were right, the first donation, 
 no matter how inconsiderable, was the foundation. 
 
 On this point, Mr. Hopkinson urged in his brief: " From 
 this it is clear that D. W.'s original school was founded by 
 him at great labor & expense — that Dartmouth was but an 
 enlargement of that seminary, made by his own consent — 
 & under his direction & control and so considered by all the '
 
 360 DARTMOUTH COLLEGE CAUSES. 
 
 parties. How otherwise could he [be] considered the 
 founder? 
 
 "It is therefore not correct in point of fact — nor 
 material in point of law, to say he contributed nothing to 
 Dartmouth College if this College is but a graft on his 
 orig-inal stock — because, the law is clear that if the orio-i- 
 nal foundation of a charity is ever [so] small, & subse- 
 quent donations or additions ever so large ; they are con- 
 sidered but additions to the first establishment, submittins' 
 to its power & coming under its government. It is seen the 
 contributor may grant conditionally or unconditionally — 
 if the latter he but falls into & under the first institution. 
 If conditionally the first founder judges whether he will 
 accept the same. * * * 
 
 *' We make out our claim then under D. W. by showing 
 that his school was founded by himself at his own expense 
 & on his own estate — that this College is but an enlarge- 
 ment of that charity, without any interference with his claim 
 or right as its founder — & so considered by all the parties 
 at the time as appears by the charter. * * * 
 
 " We answer that all these contributions were to D. W. 
 and his school — before the charter was granted or perhaps 
 contemplated — that they were to his use quoad hoc, — and 
 that when they afterwards passed to the College — they 
 passed as part of his establishment — as his. * * * 
 
 " We contend on behalf of the plaintiff: — 
 
 *' 1. That at the time, and before, this College was char- 
 tered, Dr. Wheelock had a beneficial and pecuniary interest 
 in the funds with which it was founded ; whether it shall be 
 considered that the charter merely incorporated the old 
 school under a new name ; or that the College was raised 
 on the foundation & funds of the old school." 
 
 If we are to credit Story, a majority of the court must 
 have indorsed his own views in relation to public and pri- 
 vate corporations, and apparently the view of Hopkinson in 
 relation to " ^rafted " or "raised" foundations. If this
 
 FOUNDATION HOPKINSON's BRIEF GRANTS. 361 
 
 doctrine in relation to private corporations is well founded, 
 and if the first donor, no matter how inconsiderable the 
 donation, is to be treated as the founder, how can any sub- 
 sequent donation or addition divest the corporate body of 
 its character as a private corporation? If it can, why does 
 it not transform it into a public one ? If the doctrine of 
 grafted foundations is sound, why is not that of substi- 
 tutionary foundations equally so ? 
 
 The governor had granted LandafF to individuals. Went- 
 worth promised Wlieelockto annul the grant, and regrant it 
 to Moor's Indian Charity-School. He, in form, annulled 
 the prior grant without notice to the first grantees , and trans- 
 ferred it to the College, whose trustees were compelled to 
 surrender it to tlie original grantees, whose rights had been 
 usurjied. The title foiling, the State substituted another 
 grant in place of the former, reserving the powers already 
 referred to, and this grant was, with full knowledge, accepted 
 by the corporation. Why was not the State the founder by 
 substitution ? 
 
 Massachusetts gave the first lands to Bowdoin, and was, 
 therefore, the founder. 
 
 If the assumptions of the court to which we have already 
 referred were warranted, the king first gave Landaff to 
 Dartmouth, and was, in consequence, its founder. If a 
 subsequent gift by the king could neither change the 
 original foundation nor the nature of the corporation from 
 private to public, or public to private, it is difiicult to 
 understand how like acts by private indi-sdduals could have 
 precisely the opposite effect. It is true that the grant of 
 Landaff was overturned, as were many other grants by the 
 same authority, after the Revolution ; but that would seem 
 to be immaterial. If the least private interest transforms 
 what would otherwise be a public into a private corporation, 
 it would be a work of great difficulty to discover a public 
 corporation in some of the States. The Federal Supreme 
 Court and Story assume that a stream of decisions ffowing
 
 3G2 DARTMOUTH COLLEGE CAUSES. 
 
 from the sources of the common law have divided all cor- 
 porations into two classes, private and public. This dis- 
 tinction has probably become too firmly imbedded in the 
 body of American law to be eradicated ; but on great ques- 
 tions which affect the vital interests of the nation, we must, 
 after a time, recur to first principles, or grope blindly after 
 justice through a bewildering labyrinth of contradictions 
 and absurdities. 
 
 Few judges equalled Story, either in industry or research. 
 Through his whole life he jotted down every authority which 
 he found sustaining any opinion he had advanced, and no 
 judge was so fond of parading his learning as he. The 
 only authority on this point relied upon by him, in the Col- 
 lege cause, was Dr. Bury's case, decided in 1694. When 
 he came to decide Allen v. McKeen, in 1833, after fourteen 
 3^ears more of research and investigation, he was only able 
 to give the additional authority of his own opinion in the 
 College case. It is safe to say that, if any others could 
 have been found, they would not have escaped him. 
 
 The contrast between the opinions of Washington and 
 Story upon this point is, as we have seen, very marked. 
 Washington simply assumes that Dr. Bury's case contains 
 all the "doctrine" on the subject, and that no case has 
 been found in conflict with it. 
 
 To fully comprehend Phillips v. Bury, and the cases that 
 followed in its train, a knowledge of the preexisting law 
 and history is necessary. 
 
 College and university corporations, like others, existed 
 in the mother country, — (1) by the common law; (2) 
 prescription ; (3) letters-patent from the crown ; (4) grants 
 in the ordinary form by Parliament ; and (5) by what were 
 in essence "charters of confirmation," gi*anted by Parlia- 
 ment, where charters had been lost, or where the "juris- 
 diction, privileges, and statutes" of a corporation rested 
 in tradition . 
 
 The powers which they had, varied. In general, among
 
 COLLEGE AND UNIVERSITY CORPORATIONS. 363 
 
 these privileges was that of the domestic forum, as it was 
 termed, — the right to govern and correct its own members, 
 and that of trying all civil suits, at law and in equity, in 
 which one of the parties was a member, no matter where 
 the other might be, before the scholars, master, steward, 
 visitor, chancellor, vice-chancellor, or other corporate judi- 
 catories. This was extended, in some instances, to nearly 
 all criminal offences, including maim, felony, and treason, 
 as well as misdemeanors. Persons claimed these privileges 
 who were not entitled to them, as well as those who were. 
 Those who felt aggrieved at this claim of exclusive juris- 
 diction in the kingdom brought their grievances, praying 
 for interference and relief, before the upper bench, in the 
 time of Cromwell, upon applications for mandamus^ pro- 
 hibition, and the like. The same course was pursued early 
 after the Restoration. The courts early established the 
 rule, as a matter of sound discretion, that they would not 
 interfere in regard to the private or domestic constitutions 
 and statutes of such societies, but would as to the public 
 laws of the land, for the reason that over them the founder 
 could give the visitor no exclusive jurisdiction, — much in 
 the same way as our courts, as regards ecclesiastical mat- 
 ters, remit the parties to the judicatories established by the 
 denomination of which they are members. The loose and 
 inconsequential dicta in one of the English cases, in relation 
 to private and public corporations, is the outgrowth of this 
 view; but it was never held that the king's courts had no 
 jurisdiction where the officers of the corporation neglected 
 or refused to take the proper oaths, as did the officers of 
 Dartmouth Colleo;e. 
 
 Phillips V. Bury was the famous case of Exeter College. 
 Dr. Bury was rector in 1689. On October 16, 1689, he 
 deprived John Colmer, one of the fellows, for incontinency. 
 Colmer appealed to the Bishop of Exeter, visitor of the 
 college. The bishop, having heard the appeal, sent his 
 chancellor, in March, 1690, to the college to restore him;
 
 364 DAETMOUTH COLLEGE CAUSES. 
 
 but Bury and the seven senior fellows refused to give him 
 admittance. On July 26, 1690, after a variety of proceed- 
 ings, the bishop deprived Dr. Bury for contumacy, and put 
 John Painter in his place as rector, who demised to the 
 plaintiff ; whereupon the plaintiff entered and brought suit 
 against the defendant. Justices William Gregory, Giles 
 Eyre, and Samuel Eyre held that judgment should be given 
 for the defendant; but Holt, C. J., held otherwise. Holt 
 held that the court had no jurisdiction ; the others, that 
 it had. Holt's opinion, taken from his own manuscript, 
 covers nearly thirteen pages (2 Term Eep. 346-358), and 
 discusses a variety of questions. He held, first, that, by 
 the particular constitution of this college, the Bishop of 
 Exeter had power, in this case, to give sentence ; and, 
 second, that, having that power, the justice of that sentence 
 is not to be examined in a court of law upon an action. 
 In the course of this discussion, he says : " And that we 
 may the better apprehend the nature of a visitor, we are to 
 consider that there are in law two sorts of corporations 
 aggregate, — such as are for public government, and such 
 as are for private charity. Those that are for the public 
 government of a town, city, mystery, or the like, being for 
 public advantage, are to be governed according to the laws 
 of the land ; if they make any particular private laws and 
 constitutions, the validity and justice of them is examinable 
 in the king's courts. Of these there are no particular 
 private founders, and consequently no particular visitor ; 
 there are no patrons of these. Therefore, if no provision 
 be in the charter how the succession shall continue, the laAV 
 supplieth the defect of that constitution, and saith it shall 
 be by election, — as mayor, aldermen, common council, and 
 the like. * * * But private and particular corporations 
 for charity, founded and endowed by private persons, are 
 subject to the private government of those who erect them ; 
 and, therefore, if there be no visitor appointed by the 
 founder, the law appoints the founder and his heirs to be
 
 DICTUM OF HOLT ARGUMENT OF STILLINGFLEET. 8G5 
 
 visitors, who are to proceed and act according to the particu- 
 lar laws and constitutions assigned them by the founder." 
 
 The question l)eforo the court upon this branch of the 
 case was, as stated hy Lord Holt himself, not whether cor- 
 porations were public or private, but whether the constitu- 
 tion, the statutes, of this particular college excluded the 
 jurisdiction of the courts of common law. He held that 
 they did. It is obvious that what we have quoted from him 
 was not only a dictum, but loosely worded and obscure in 
 meaning at that. If taken as it reads, all banks, and the 
 great trading and industrial corporations, are neither public 
 nor private. 
 
 The House of Lords, after an argument by Bishop Stil- 
 lingfleet, reversed the judgment of the three judges, holding 
 that the courts of common law had no jurisdiction. We are 
 not aware of any evidence that that body affirmed the dic- 
 tum of Lord Holt. Bishop Stillingfleet based his argument 
 mainly upon the ground of policy. 
 
 It is quite evident that Webster had never seen Stilling- 
 fleet' s report of the case, or his argument. The MS. argu- 
 ment of Webster shows that he obtained all his information 
 on the subject from 1 Burn's Ecclesiastical Law, 439-445. 
 This report does not attemjDt to state that argument with 
 accuracy. It says : — 
 
 "In the argument whereof, Bishop Stillingfleet spoke to this 
 effect : that this absolute and conclusive power of visitors, is no 
 more than the law hath appointed in other cases, upon commis- 
 sions of charitable uses ; that the common law, and not any eccle- 
 siastical canons, do place the power of visitation in the founder 
 and his heirs, unless he settle it upon others ; that although a cor- 
 poration for public government be subject to the courts of West- 
 minster Hall, which have no particular founders, or special visitors, 
 yet corporations for charity founded and endowed by private per- 
 sons are subject to the rule and government of those that erect 
 them ; but where the persons to whom the charity is given are 
 not incorporated, there is no such visitatorial power, because the 
 interest of the revenue is not invested in them ; but where they
 
 366 DARTMOUTH COLLEGE CAUSES. 
 
 are, the right of visitation ariseth from the foundation, and the 
 founder may convey it to whom and in what manner he pleaseth ; 
 and the visitor acts as founder, and by the same authority which 
 he had, and consequently is no more accountable than he had been ; 
 that the king by his charter can make a society to be incorporated, 
 so as to have the rights belonging to persons, as to legal capacities ; 
 that colleges, although founded b}^ private persons, are yet incor- 
 porated by the king's charter; but although the kings by their 
 charters made the colleges to be such in law, that is, to be legal 
 corporations, yet they left to the particular founder's authority to 
 appoint what statutes they thought fit for the regulation of them. 
 And not only the statutes, but the appointment of visitors was left 
 to them, and the manner of government, and the several conditions 
 on which any persons were to be made, or to continue, partakers 
 of their bount}'. But that which is particularly to he observed^ is, 
 thai these founders of colleges did take special care to prevent, as 
 much as possible, all law-suits among the members of their societies, 
 as most destructive to the peace and xmity of their body, and the 
 tranquilily necessary for their studies; for they knew very well, that 
 if any encouragements were given to suits at law, those jflaces would 
 in time become nurseries for attornies and solicitors, lohich would 
 pervert the main design of their foundation. 
 
 "Walter De Merton, the first founder of a college in Oxford, 
 with revenues to support it, took such care about this, that he 
 puts the case, in his statutes, of a warden's being deprived, and 
 knowing that men are apt to complain when they suffer, and to 
 endeavor in one way or other to be restored, (which causeth great 
 heats and animosities among the contending parties,) therefore, 
 to prevent these mischievous consequences, he puts a chapter in 
 on purpose in his statutes, that if such a case should happen, niiUa 
 actio, nullum juris remedium canonici vel civilis habeat." 
 
 Neither the crown nor Parliament had in any wise 
 attempted to alter, amend, or repeal the charter, or the con- 
 stitutions or statutes brought in question in Dr. Bury's case. 
 The question there related entirely to the power of the 
 courts of common law in the premises, and not to the power 
 of the crown, Parliament, or any legislative body. The 
 statutes and constitutions referred to were, in essence, what
 
 FEDERAL CONSTITUTION MODIFIED BY "DICTUM." 367 
 
 we term by-laws. The technical difference Avas, that they 
 could not be amended or annulled except by virtue of a 
 power reserved. 
 
 The report of this case in the House of Lords occupies 
 about twenty-four pages in " Showier' s Cases in Parliament." 
 
 The view taken by Chief Justice Holt in the court below, 
 of course, was urged, as well as a variety of other grounds. 
 
 The argument and decision are thus summarized, at the 
 close of the report of the case : — 
 
 " It was replied in behalf of the plaintiff much to the same 
 effect as 't was argued before, and great weight laid upon the con. 
 tumacy which hindered the observance of the statutes ; that by 
 allowing such a behavior in a college no will of the founder could 
 be fulfilled, no visitation could ever be had ; and all the statutes 
 would be repealed or made void at once ; that tho this crime was 
 not mentioned 't was as great or greater than any of the rest ; that 
 here was an authority and well executed and upon a just cause and 
 in a regular manner so far as the rector's own misbehavior did not 
 prevent it, and therefore they prayed that the judgment might be 
 reversed : and upon debate the same was reversed accordingly. ' ' 
 
 Notwithstanding the dictum of Story that the dictum of 
 Holt ties the hands of the "government," it is apparent, 
 as we have already seen, that this must refer alone to the 
 throne, for it could not tic the hands of Parliament. 
 
 Generations to come may well marvel when thoy realize 
 that this obscure and contradictory dictum of a single judge 
 has been injected into the Federal Constitution, by con- 
 struction, and that our whole system of government, and 
 the vast and varied interests of our people, must be regu- 
 lated in accordance with it. They might as well have 
 expected that the mist would mould the granite. 
 
 The great case of Charles Eiver Bridge v. Warren Bridge 
 was formally decided February 14, 1837. This was virtu- 
 ally another college case. In 1650, Massachusetts granted 
 to Harvard the power to dispose of a ferry between Boston 
 and Charlestown, over Charles River, and the college held
 
 368 DARTMOUTH COLLEGE CAUSES. 
 
 this ferry under this grant till 1785, when certain persons 
 were incorporated as the proprietors of the Charles River 
 Bridge, authorized to erect a bridge where the ferry was, 
 and to take tolls for forty years, and were to pay Harvard 
 £200 annually for thus destroying the ferry. In 1792, the 
 charter was extended thirty years. In 1828, Massachusetts 
 incorporated the proprietors of the Warren Bridge, with 
 power to erect another bridge over the same river. The 
 two bridges were sixteen rods apart on the Charlestown side, 
 and fifty rods on the Boston side. The charter of the War- 
 ren Bridge was to expire in six years, and then be free to all. 
 As was obvious to the mind of every intelligent man, 
 the effect of the second grant was to materially impair the 
 value of the prior grant for the six years, and thereafter to 
 render it essentially worthless. The Charles River Bridge 
 filed a bill in equity against the Warren Bridge, at the March 
 term of the Supreme Court of Massachusetts, 1828, praying 
 for a temporary injunction to restrain the defendants from 
 buildinir a bridiye under the charter, and also from suffering 
 passengers to go over it. The court (6 Pick. 376-407) 
 unanimously denied the motion. In 7 Pick. 344-532, the 
 court were equally divided upon the main question. The 
 bill was therefore dismissed, and the case went up on error 
 from the March term, 1829, to the Federal Supreme Court. 
 The great question, of course, was whether the second grant 
 was prohibited by the obligation clause. It was heard 
 before Marshall, and afterwards before Taney. The last 
 argument was made in January, 1837. Story prepared his 
 opinion more than five years before the decision. In his 
 letter to Mason, of November 19, 1831, he says; " I am 
 now encragced on the Charles River Bridge case. After it is 
 finished I should be glad to have you read it over, if I thought 
 it might not give you too much trouble. It is so important 
 a constitutional question, that I am anxious that some other 
 mind should see, what the writer rarely can in his zeal, 
 whether there is any weak point which can be fortified, or
 
 CHARLES RIVER BRIDGE CASE STORy's OBJECT. 3G9 
 
 ought to be abandoned. The general structure of the argu- 
 ment, I hope, is sound; but all the details may not be." 
 (Mason's Mem. 335. ) Mason, in his reply, of November 24, 
 1831, says : "I will most willingly examine your opinion on 
 the case you mention, and give you the result of my reflections 
 on it." (Mason's Mem. 336. ) In his letter of December 23, 
 1831, to Mason, Story says : " Owing to my recent illness, 
 from Avhich I am now, as I trust, entirely recovered, the prep- 
 aration of my opinion in the Charles River Bridge case was 
 suspended. I have just completed it ; and it is to be copied, 
 and I hope to send it to you by the middle of the next week. 
 If you should have examined it sufficiently to give your 
 opinion, I should be glad to receive it before I go to Wash- 
 ington, which will be by Sunday, the 2d of January. If 
 not, I will thank you to send it to me by mail at Washing- 
 ton. I wish to make some remarks to explain its great 
 length and the repetition of the same suggestions in different 
 parts of the same opinion. I have written my opinion in 
 the hope of meeting the doubts of sotne of the brethren, 
 which are various, and apply to different aspects of the 
 case. To accomplish my object, I felt compelled to deal 
 with each argument separately, and answer it in every form, 
 since the objections of one mind were different from those 
 of another. One of the most formidable objections is the 
 rule that royal grants, etc., are to be strictly construed; 
 another is against implications in legislative grants ; another 
 is against monopolies ; another is that franchises of this 
 sort are bounded by local limits ; another, that the construc- 
 tion contended for will bar all public improvements. I have 
 been compelled, therefore, to restate the arguments in dif- 
 ferent connections. / have done so, hoping in this way to 
 gain allies. I should otherwise have compressed my oiDinion 
 within half the limits." (Mason's Mem. 336, 337. ) Story 
 undoubtedly spoke for himself and the dead chief justice, 
 and his opinion was entirely consistent with those given by 
 him in the College causes. 
 
 24
 
 370 DARTMOUTH COLLEGE CAUSES. 
 
 The argument of Marshall on this point, in Fletcher v. 
 Peck, as his reference to Blackstone shows, is that a grant 
 by the State stands in the same place as an executed sale of 
 a horse by A. to B. ; or, if we are to believe Webster, the gift 
 of a sum of money from C. to D. The opinions in the Col- 
 lege cases rest upon the same foundation. But the majority 
 of the judges in the Bridge case evade this underlying prin- 
 ciple by a flank movement. They say, in effect, that though 
 a grant by the king to A. is, in a constitutional sense, as 
 much a contract as one between B. and C, yet the grantee 
 in the first case takes nothing by implication, while exactly 
 the reverse is true in the second case ; and that therefore 
 one is, in efiect, protected by the Constitution, while the 
 other is not. 
 
 While we are clear that the decision in the Bridge case 
 was right, we are equally clear that an unsound reason was 
 given for it. Chancellor Kent, whose view in relation to 
 this distinction was indorsed by a large majority of the 
 great lawyers of his day, said, in his letter to Story, of June 
 23, 1837 : " I abhor the doctrine that the legislature is not 
 bound by everything that is necessarily implied in a contract, 
 in order to give it effect and value, and by nothing that is 
 not expressed in hcec verba ; that one rule of interpretation 
 is to be applied to their engagements, and another rule to 
 the contracts of individuals." 
 
 The decision in the Bridge case was right, for exactly the 
 same reasons that the argument in Fletcher v. Peck and the 
 opinions in the College cases were wrong.
 
 CHAPTER XY. 
 
 CONSTITUTIONS — VIEWS OF GOUVERNEUR MORKIS — CON- 
 STITUTIONAL AMENDMENTS — IMPEACHMENT — CRAIG v. 
 MISSOUKI — BRISCOE v. BANK — OSBOUN v. BANK — JUDGE 
 MARSHALL — EARLY HISTORY — POLITICAL LIFE — THE 
 VIRGINIA CONVENTION —" THE FEDERALIST "-=- HAMILTON 
 AND ADAMS — PARTY NAMES MISNOMERS — MARSHALL 
 AND JEFFERSON — THE PRIMITIVE COURT — APPOINTxMENT 
 OF MARSHALL AS CHIEF JUSTICE — JUDICIAL LIFE — MAR- 
 BURY V. MADISON — OGDEN v. SAUNDERS — ALLEN v. Mc- 
 KEEN — STURGES v. CROWNINSHIELD — GIBBONS v. OGDEN 
 — ACTS OF PARLIAMENT, THE "LAW OF THE LAND" — 
 FLETCHER v. PECK — POSITION OF COUNSEL — EXECUTORY 
 AND EXECUTED CONTRACTS — GRANTS — ESTOPPEL. 
 
 Constitutions are, in theory or in fact, a restraint upon 
 " those in authority." They vary in form' with time, place, 
 and circumstance. The British Constitution is a mass of 
 traditions and customs inwrought by the conservative tem- 
 per of the classes which create and control the two great 
 estates of the realm ; the constitutions of several of the 
 colonies were royal commissions ; the constitution of Russia 
 was a wholesome fear of assassination ; and in the United 
 States the Constitution is, in form, a written instrument, 
 but in fact what five or six men on the Supreme Bench see 
 fit to make it. Gouverneur Morris, one of the greatest of 
 its framers, called the experiment " a vain attempt to tie up 
 the arm of government with paper bands." This is the 
 point where our institutions touch despotism the nearest. 
 The moss-grown rule is, that judges shall not make, but 
 construe, laws, and interpret constitutions ; but this rule 
 cannot remould humau nature. If the judges err in their 
 
 ("71)
 
 372 DARTMOUTH COLLEGE CAUSES. 
 
 interpretation, either through mistake, inadvertence, bias, 
 or design, the same result follows, — they alter, amend, or 
 repeal the provisions of the Constitution. For this there 
 is no remedy. 
 
 The influences to which w^e have already referred may 
 afi'ect the action of the court, but the judges are beyond the 
 control of public opinion. 
 
 The fathers borrowed from Great Britain the forms of 
 impeachment. In 1820, Jefferson termed it "an impracti- 
 cable thing, a mere scare-crow ; ' ' and the writer, not to 
 speak of other instances, who has seen Underwood, at Rich- 
 mond, occupying the seat of John Marshall, has a realizing 
 sense of what Jeflerson meant. To-day it hardly rises to 
 the dignity of a farce. Impotent for good, these provisions 
 must be a dead letter in the future, unless revived as an in- 
 strument of partisan vengeance, when both housies are 
 controlled by the same party. 
 
 The Constitution provides for its amendment, but the 
 process is slow, uncertain, and useless unless the judges 
 favor it. In 1793, in Chisholm v. Georgia, Jay, true to his 
 idea that States were but county corporations, sought, con- 
 trary to the opinion of Hamilton and Marshall, to bring the 
 defendant State to the bar of his court, just as he would the 
 members of a quoit club, or an incorporated cheese factory. 
 The people reversed that decision, by the Eleventh Amend- 
 ment. 
 
 In 1821, Judge Marshall, in Cohens v. Virginia, by a " lib- 
 eral ' ' interpretation of the original provisions and by a 
 " strict construction " of that amendment, nullified the pur- 
 pose of the people in adopting it, by holding that it did not 
 apply where the original proceeding was instituted by the 
 State, and that the prohibition was addressed to the Federal 
 courts. 
 
 The Federal Constitution provides that ' ' no State shall 
 * * * emit bills of credit." 
 
 In Craig v. Missouri, 4 Pet. 410, and Briscoe v. Bank,
 
 ELEVENTH AMENDMENT AND MARSHALL'S DOCTRINE. 373 
 
 8 Pet. 118, 11 Pet. 328, 329, 350, where the State owned 
 the bank, Marshall decided that the bank and the State 
 were one, and were to be treated as identical, saying, in 
 answer to the suggestion that they were not : "Is the prop- 
 osition to be maintained that the Constitution meant to 
 prohibit names, and not things ? That a very important act, 
 big with great and ruinous mischief, which is expressly for- 
 bidden by words most appropriate for its description, may 
 be performed by the substitution of a name ? That the Con- 
 stitution, in one of its most important provisions, may be 
 openly evaded by giving a new name to an old thing ? ' ' 
 
 Yet in 1824, in Osborn v. Bank, 9 Wheat. 738, which 
 was a bill brought by the bank, in the Circuit Court, to 
 restrain the State auditor of Ohio from collecting a tax, 
 etc., Marshall held that, " as the State cannot be joined as a 
 defendant, its agent maybe sued alone;" and that "the 
 prohibition to sue a State contained in the Eleventh Amend- 
 ment to the Constitution does not extend to cases in which a 
 State is not made a party on the record, even if the State has 
 the entire ultimate interest in tlie subject-matter of the suity 
 
 It is obvious that a State cannot exist or act except by 
 and through its officers, and that for such purpose they are 
 the State. 
 
 The decision is, in effect, that the amendment did not 
 prohibit the bringing of suits against the State, and was 
 not so intended, but simply changed the form of the process 
 and of the docket-entry, and provided that the name of the 
 State should be struck out, and those of its officers, its other 
 self, should be substituted for it. 
 
 This decision reduces the amendment to a quibble about 
 forms. Whether the amendment was wise or otherwise, was 
 one thing ; what it meant was another. That Marshall 
 thought it unwise, and cut its heart out by a judicial re- 
 peal, is evident. Taken with recent decisions on the tax 
 power, it comes to this : The officers of a State are the 
 State . Therefore , —
 
 374 DARTMOUTH COLLEGE CAUSES. 
 
 1 . The State cannot be taxed [out of existence] by taxing 
 its officers. 
 
 2. A State cannot be sued. 
 
 3. A State can be sued [out of existence] by suing its 
 officers. 
 
 And this impotent conclusion comes from one who, before 
 the amendment, after weeks of deliberation, announced to 
 the Virginia Convention that a State could not be sued 
 at all. 
 
 The same fate befell another amendment, in the Slaughter- 
 House cases. 
 
 In 1856, in Scott v. Sandford, 19 How. 393, the court held 
 that Congress could not prohibit slavery in territory ac- 
 quired by the Federal government by treaty. This decision 
 was reversed, a few years later, by a gigantic civil war. 
 
 Few men desire a repetition of the farce of impeachment, 
 or the fruitless experiment of attempting to restrain the 
 judges by constitutional amendments, or the costlier one of 
 reversing decisions by a resort to arms. 
 
 John Marshall had no hand in forming the Federal Con- 
 stitution, but for twenty-six out of the thirty-four years of 
 his judicial life that Constitution was, through compromise 
 or otherwise, what he saw fit to call it. 
 
 The life and acts of such a man should be scrutinized 
 with care and weighed with candor. 
 
 IMind and body harmonized with each other, but in both 
 Marshall was unlike other men, — an extraordinary and pecu- 
 liar being. He was tall, — six feet in height, — thin, slender, 
 angular, meagre, and emaciated, but erect and agile, while 
 his muscles were so relaxed and joints so loose as to destroy 
 all harmony in his movements and grace in his actions. His 
 complexion was swarthy ; his head was small, covered with 
 shocks of thick, stout, wiry hair, raven black ; his forehead 
 was rather low, but upright, and full in the temples ; his 
 face was small, making nearly a circle in its outline ; his 
 eyes were small, twinkling, piercing, and dark as midnight;
 
 DUEL) tSCOTT CASE MAIISHALL's EDUCATION. 375 
 
 his voice was dry and hard ; his attitudes, at best, extremely 
 awkward, and his onl}'- gesture in speaking w^as a perpendicu- 
 lar swinsf of the ri^ht arm,' He was of Welsh descent, and 
 was the oldest of fifteen children. His father was a Virginia 
 planter and surveyor, of limited means. He was born in 
 Fauquier County, September 24, 1755, and died in Phila- 
 delphia, July 6, 1835. Previous to the Revolution, he 
 resided most of the time near Manassas Gap and at Oak 
 Hill. Society there was ver}'" primitive. The people lived 
 on mush and balm tea, and the Avomen fastened their dresses 
 with thorns, instead of pins. The population was sparse, 
 accessible schools were unknown, and facilities for acquiring 
 knowledge were exceedingly limited. Until his fourteenth 
 year, his father was his only instructor. He spent his 
 fifteenth year with James Monroe, a hundred miles from 
 home, in the study of Latin, under the private tutorship of 
 a clergyman ; the next year he continued his studies, under 
 the supervision of a Scotch parson, in his father's family ; 
 and this was all the education he had. 
 
 Early in his eighteenth year he commenced the study of 
 the law, but the din of the approaching conflict compelled 
 him to abandon Blackstone and turn to other pursuits. In 
 the spring of 1775 he was made lieutenant in a militia com- 
 pany, and soon after first lieutenant in one of "Minute 
 Men;" in December, 1775, he was in the battle of Great 
 Bridge, about twelve miles from Norfolk ; in July, 1776, he 
 was appointed lieutenant in the Eleventh Virginia (Conti- 
 nentals), and in the winter of 1776-7 joined the army at 
 Morristown ; in May, 1777, he was made captain, and was 
 in the engagement at Iron Hill, at Brandywine in Septem- 
 ber, at Germantown in October, and went into winter quar- 
 ters at Valley Forge in December following. He Avas at 
 Monmouth in June, 1778 ; with Wayne at Stony Point, and 
 at PoAvle's Hook in July, 1779. In the winter of 1779-80 
 he attended the law lectures of Wythe, — afterwards chan- 
 cellor, — at William and Mary's College, retained his con-
 
 376 DARTMOUTH COLLEGE CAUSES. 
 
 nection till the summer of 1780, and soon after obtained a 
 license to practise. In October, 1780, he returned to the 
 army, and remained till 1781, when he resigned his com- 
 mission, and devoted himself to the study of his profession 
 till after the surrender of Cornwallis, in October, 1781, 
 when the courts were reopened. After the Revolution, he 
 became a general of the State militia, and, in consequence, 
 from that time till 1801, when he was made chief justice, 
 was almost entirely known as General Marshall. In the 
 spring of 1782, he was elected a member of the lower house 
 from his native county ; and in the autumn, to the executive 
 council. In January, 1783, he married, and removed to 
 Richmond, where, in spite of the flattering inducements 
 held out if he would remove to Philadelphia, he resided till 
 his death. Early in 1784, he resigned his place in the coun- 
 cil, and in the spring was again elected a member from Fau- 
 quier, and represented Henrico from 1787 till 1792. In 1788, 
 he was one of the lieutenants of Madison, Randolph, Pen- 
 dleton, and Inuis, in the Convention of June, which ratified 
 the Federal Constitution; from 1792 till 1795, he devoted 
 himself almost entirely to his large and constantly increas- 
 ing practice ; in 1795-6, he again represented Henrico ; in 
 May, 1797, he was appointed, and in July, with Pinckney 
 and Gerry, left the country, as envoy to France ; and on 
 June 17, 1798, he returned to New York. He was elected 
 a member of Congi*ess from the Richmond district hy a 
 small majority, and took his seat at the December session, 
 1799. On June 13, 1800, after the explosion in the cabinet 
 cabal, which had been inherited by Adams, he was made 
 secretary of State, and continued a controlling spirit in the 
 cabinet until the last hours of that administration. On 
 January 20, 1801, Adams nominated him as chief justice ; 
 he was confirmed January 27, and commissioned on January 
 31, and presided at the term Avhich ended February 9, of 
 the same year. 
 
 Marshall had rare o-ifts. His character was the result of
 
 MARSHALL CHARACTERISTICS STRENGTH OF MIND. 377 
 
 a peculiar interblending of many opposites ; its power lay 
 ill the combination. 
 
 He was simple and unpretentious, and as modest, sensi- 
 tive, and averse to every form of notoriety as he was cour- 
 ageous ; he had an ardent social nature, a seductive personal 
 magnetism ; he was a delightful companion, fluent and facile 
 in conversation, and, aside from Andrew Johnson, the most 
 eloquent listener in the Union ; he was full of sly, waggish 
 humor, genial and convivial ; his temper was serene and 
 imperturbable, his patience almost inexhaustible, and his 
 judgment clear, cool, wary, and calculating. In youth and 
 early manhood he delighted in foot-races and the rough 
 sports of the country, and was as full of poetic longings, 
 aspirations, day-dreams, and romances as a school-girl. 
 Naturally indolent, and seldom studious, from boyhood to 
 the "yellow leaf" of old age his soul revelled in quoit- 
 pitching by day and novel-reading by night. Like Webster, 
 he loved a plain house and a sumptuous board, loved solid 
 power and the luxury of ease ; and, like Everett, loved the 
 old home, old scenes, old friends, and old wine. He never 
 sought office ; cared little for place, nothing for titles. He 
 was a born diplomatist, and showed himself an overmatch 
 for Talleyrand, with all the latter' s training. He was a 
 natural politician, and, in general, knew thoroughly the 
 public men of Virginia and Maryland, with whom he was 
 brought in personal contact, and but little of those in the 
 rest of the Union. His powers of analysis, like those of 
 Fox, were singularly acute ; no man could be clearer, if 
 he chose, in statement or in reasoning ; but, when hard 
 pressed, his subtlety in both, equalled only by that of 
 Aaron Burr in practice, enabled him to ascend into the 
 clouds, beyond the reach of ordinary minds. He cared 
 little for authority, but relied mainly on his o^vn reflections. 
 
 With Story the test was, " The policy of the law is ; " 
 
 with Marshall, " I have not looked much into the cases, but 
 I think the law ought to be ;" or, as Story says,
 
 378 DARTMOUTH COLLEGE CAUSES. 
 
 " While I am compelled to creep from point to headland, 
 Marshall puts out to sea." Without imagination, his mind 
 was essentially mathematical and legislative. He loved not 
 Coke, the stern old framer of the Petition of Right, but the 
 courtly Blackstone. He lacked the attainments of Jay, the 
 great legal learning and the superb organizing genius of 
 Rutledge. Great opportunities were afforded him during 
 his long judicial life, which Ellsworth never had ; but the 
 kingly dignity, the exalted conscience, the immutability of 
 will, and the slow but ponderous intellect of the latter 
 were wanting. 
 
 " Never in the flow of time," to use the words of Gouver- 
 neur Morris, was there a moment so propitious for that 
 purpose as when the work of the Federal Convention was 
 submitted for ratification. The ablest and purest men in 
 the Union were arrayed on the one side or the other. Tal- 
 ent, tact, and management carried it in New York, Massa- 
 chusetts, and New Hampshire by a close vote, and in reality 
 against the popular will. 
 
 The parties which subsequently arose were called Federal 
 and Republican. Both were misnomers. The Federalists 
 were not opposed to a republic, nor were the Republicans 
 opposed to a federal government. The Constitution itself 
 was a compromise, and, as was justly said by Ellsworth and 
 Madison, "partly national and partly federal." Both 
 were in favor of conferring upon the general government 
 such powers as they deemed necessary for its preservation. 
 
 The difference was, as it were, a question of political 
 geography, — where the boundary-line between the powers 
 conferred upon the Federal government, and those retained 
 by the States or peoj^le, should be located ; and, as a con- 
 sequence, one party became known as "liberal" and the 
 other as " strict " constructionists. Behind each of these 
 phrases lay a fundamental idea ; but the terms themselves, 
 as the subsequent history of parties and the country has 
 abundantly shown, were elastic and indefinite, admirably
 
 EATIFICATION OF CONSTITUTION HAMILTON. 379 
 
 adapted to political exigencies and the needs of politicians. 
 There was, of course, a general accord in the views of the 
 leaders of the respective parties, but those of Jay, Hamil- 
 ton, Adams, Marshall, and Story were far from identical ; 
 and the same is true of Jefferson, Madison, and Gerry, 
 though with them the differences were less marked. The 
 first four favored the ratification, — part because they 
 believed in it, and the rest as a choice of evils. Patrick 
 Honry and Luther Martin, who afterwards became such 
 eminent Federalists, exerted their great powers to the utter- 
 most against it, and Gerry followed in their train. In the 
 Virginia Convention, Madison was the great leader, — " the 
 cloud by day and the pillar of fire by night ' ' of its sup- 
 porters. Jefferson was abroad. Had he thrown the posi- 
 tive weight of his great influence into the scale against it, 
 the probabilities are very strong that no human power could 
 have secured in its favor a majority of the Virginia Con- 
 vention. 
 
 The name of Washington was undoubtedly more potent, 
 but no one man, by his own exertions, contributed so much 
 to secure the ratification as Hamilton ; and yet, anomalous 
 as that may seem, few, even of its opponents, had less faith 
 in it, or disliked it more. In the Convention, on Septem- 
 ber 6, 1787, he said "that he had been restrained from 
 entering into the discussions by his dislike of the scheme of 
 government in general, but as he meant to support the plan 
 recommended, as better than nothing, he wished, in his 
 place, to make a few remarks." 
 
 In the closing hours of the Convention, September 17, 
 1787, he said : " No man's ideas were more remote from the 
 plan than his were known to be ; but is it possible to delib- 
 erate between anarchy and convulsion on one side, and the 
 chance of good to be expected from the plan on the other ? ' ' 
 
 We owe to him " The Federalist." For that great work 
 he selected for his associate his intimate personal and 
 political friend, Gouverneur Morris. In his letter of Feb-
 
 380 DARTMOUTH COLLEGE CAUSES. 
 
 ruary 24, 1815, to Hills, Morris says: "I was warmly 
 pressed by Hamilton to assist in writing ' The Federalist,' 
 which I declined." 
 
 There were obvious reasons for Hamilton's choice, one of 
 which appears in the letter of Morris, of December 22, 
 1814, to Pickering, the discarded secretary of John Adams : 
 " That instrument [the Constitution] was written by the 
 fingers which ^vrite this letter." Madison — and Jay, to a 
 limited extent — took the place of Morris. No man knew 
 the difficulty referred to, or the views of Hamilton, better 
 than Morris. In his letter to Walsh, of February 5, 1811, 
 he thus states the fears of the fathers: "Fond, however, 
 as the framers of our National Constitution were of repub- 
 lican government, they were not so much blinded by their 
 attachment as not to discern the difficulty, perhaps imprac- 
 ticability, of raising a durable edifice from crumbling 
 materials. History, the parent of political science, had told 
 them that it was almost as vain to expect permanency from 
 democracy as to construct a palace on the surface of the 
 sea." In the letter last quoted, Morris says: "General 
 Hamilton had little share in forming the Constitution. He 
 disliked it, believing all republican government to be radi- 
 cally defective. He admired, nevertheless, the British Con- 
 stitution, which I consider an aristocracy in fact, though a 
 monarchy in name. * * * He heartily assented, never- 
 theless, to the Constitution, because he considered it as a 
 band which might hold us together for some time, and he 
 knew that national sentiment is the oflEspring of national ex- 
 istence. He ti'ustedy moreover^ that, in the changes and 
 chances of thne, we should be involved in some war, which 
 might strengthen our union and nerve the executive. He was 
 not, as some have supposed, so blind as not to see that the 
 president could purchase power, and shelter himself from 
 responsibility by sacrificing the rights and duties of his 
 office at the shrine of influence." 
 
 In his letter to Ogden, of December 28, 1804, he says :
 
 Hamilton's views — influence over Marshall. 381 
 
 ** Our poor friend Hamilton bestrode his hobby, to the great 
 annoyance of his friends, and not ^\dthout injury to himself. 
 More a theoretic than a practical man, he was not sufficiently 
 convinced that a system may be good in itself and bad in 
 relation to particular circumstances. He well Tcneiu that his 
 favorite form was inadmissible, tmless as the result of civil 
 war; and I suspect that his belief in that which lie called an 
 approaching crisis arose from a conviction that the kind of 
 govern7nent most suitable, in his opinion, to this extensive 
 country could be established in no other way. * * * 
 General Hamilton hated republican government because he 
 confounded it with democratical government, and he detested 
 the latter because he believed it must end in despotism, and 
 be, in the tneantime, destructive to public morality. He be- 
 lieved that our administration would be enfeebled progres- 
 sively at every new election, and become at last contemptible.'''' 
 
 The Revolution brought Marshall in contact Avith Hamil- 
 ton, then on Washington's staff, and he became so impressed 
 with his learning and genius that he never afterwards freed 
 himself from their influence. At a later period, he became 
 a follower of this great leader, but, like the Tanevs, and 
 that distinguished class of Southern Federalists to whom 
 Walcott refers, was much more moderate. 
 
 The fatigues of the camp, and the grave responsibilities 
 which rested upon him during the war and his first adminis- 
 tration, had their efiect even upon the powerful frame of 
 Washington ; and towards the close of his last administra- 
 tion his energies became relaxed, and his memory, never 
 good, seriously impaired. 
 
 Jefferson and Hamilton were pitted against each other 
 during the first administration of Washington. On Decem- 
 ber 31, 1793, finding his situation unpleasant and his influ- 
 ence overweighted by that of Hamilton and circumstances, 
 Jefferson resigned ; policy and the pressure of public opin- 
 ion compelled Hamilton to follow him about a year later ; 
 and Randolph, who took the place of Jefferson, was driven,
 
 382 DARTMOUTH COLLEGE CAUSES. 
 
 by an enforced resignation, from the cabinet in disgrace. 
 Washington tried in vain to fill the vacant places with men 
 fitted for them, but such would not accept, and he was com- 
 pelled to select from an inferior class. Three out of the 
 four belonged to the Hamiltonian wing of the Federal party. 
 These men have made their own record in their private cor- 
 respondence. They fastened themselves like leeches on 
 John Adams. Under both administrations they took their 
 inspiration and guidance from Hamilton. They were the 
 creatures through whom he moulded the policy of the gov- 
 ernment. By his election, Adams became the nominal, 
 while Hamilton remained the real, head of his party. The 
 difierence between these two was almost as marked as that 
 betAveen Adams and Jefferson after the French Revolution. 
 They differed not only in matters of detail, but as respects 
 first principles. Few men have been so misrepresented and 
 so misunderstood as Adams. Pickering, Wolcott, and 
 McHenry were spies in his cabinet, plotting, in the interest 
 of Hamilton, to defeat all his beneficent purposes and to 
 destroy their official head ; and the managing spirits in the 
 Senate, under the same control, were but little better. 
 Together, they made him responsible for measures which he 
 never originated, and to which he was at heart opposed. 
 Such a state of things could not last. The moderate Fed- 
 eralists of the South and East, under the lead of Marshall 
 and Dexter, rallied to the support of Adams. Pickering 
 refused to resign, and on June 12, 1800, Adams removed 
 him and put Marshall in his place. 
 
 The presidential campaign came on, with Hamilton still 
 plotting the defeat of Adams. The Union became an ocean 
 of political passion, without a parallel except that which 
 preceded the late civil war. Partisan fury spared nobody ; 
 life-long friends turned away from each other as they met ; 
 the furnaces of defamation, seventy-and-seven times heated, 
 flamed incessantly ; and more than the seven vials of vituper- 
 ation were poured out upon the devoted heads of Jefferson,
 
 PRESIDENTIAL CONTEST IN 1801. 383 
 
 Adams, and their respective adherents . We can realize 
 how such passions darken the understanding and harden the 
 hearts of men, when we know that Jolm Marshall, who so 
 seldom spoke ill of any one, put his preference for Burr 
 upon the ground that the morals and principles of even 
 Aaron Burr were purer than those of Thomas Jefferson. 
 The election went to the House of Representatives. There 
 were sixteen States. Jefferson controlled eight, the Federal- 
 ists six, and tied the other two. 
 
 From February 11 to 17, 1801, all business was paralyzed, 
 and, in the madness of the hour, the most thoughtful and 
 considerate men feared that the day of doom for the union 
 of these States was at hand. More than three-fourths of 
 the Federalists in both houses of Congress lost their heads ; 
 passion took the place of judgment. Their trusted leaders, 
 Hamilton and Morris, lost all control over them ; against 
 their advice, they voted steadily for Burr ; they determined 
 to elect him if they could, and, if they failed in that, to put 
 the presidency into " commission," as the British some- 
 times do the *' great seal," bypassing an act vesting its 
 powers in Jay, Marshall, or some person to be elected by 
 them president of the Senate. When it became reasonabl}'" 
 certain that Burr could not be elected, Jefferson sought an 
 interview with Adams, for the purpose of inducing him to 
 arrest the other desperate measures. We know what that 
 interview was, and the result of it. Jefferson was told upon 
 what terms he could have the presidency ; he refused to 
 purchase it by capitulation. There was but one step more 
 for the Republican leaders to take, and they acted with 
 promptness and decision. They controlled important States, 
 and resolved to prevent what the}^ regarded as usurpation 
 by a resort to arms. This shook a few of the more moder- 
 ate men. The probabilities are that Jefferson never would 
 have been president but for Hamilton, who had sought to 
 make Pinckney president over Adams by a species of 
 treason to the head of the ticket, and then, to defeat Burr,
 
 384 DARTMOUTH COLLEGE CAUSES. 
 
 threw the positive weight of his great influence with certain 
 members in favor of Jefferson. But even he was unable to 
 secure the cooperation of Marshall. 
 
 Between Marshall and Jefferson, as before stated, there 
 was a relentless personal and jDolitical antagonism, which had 
 been growing for years, and which intensified as time rolled 
 on, and colored every thought and act of each in relation to 
 the other. The root of the political antipathy it is easy to 
 discover, but the source of the personal hatred is unknown. 
 There are few sadder spectacles than that of Jefferson at 
 eighty-one, after his cordial reconciliation with Adams, and 
 when he had forgiven every other enemy, replying to Mar- 
 shall's note: "And even Judge Marshall makes history 
 descend from its dignity, and the ermine from its sanctity, 
 to exaggerate, to record, and to sanction this forgery;" 
 unless it be that of the aged chief justice, eight years later, 
 in assumed self-justification, firing a parting volley at the 
 ashes of his dead antagonist. 
 
 In some respects these men were alike. They were of 
 Welsh extraction, Virginians, men of eminent talents and 
 strong convictions, simple and unaffected, and possessed of 
 the most cordial social natures. Neither was given to 
 enduring hatred. Jefferson forgave all but Marshall ; Mar- 
 shall spared the world his enmity, and lavished it upon 
 Jefferson. 
 
 Late in 1800, Ellsworth, then in England, resigned, and 
 Jay, who had once resigned the position of chief justice for 
 a foreign mission, was appointed and confirmed in his place. 
 Adams personally pressed him to accept, but he per- 
 emptorily declined. The "Ultra-Federalists" strenuously 
 insisted that the place should be given to Justice Paterson ; 
 but Adams, partly from a dislike for that wing of his party, 
 and partly because he desired to avoid wounding the feelings 
 of his old friend Gushing, the senior judge, and probably 
 because of his partiality for Marshall, who had rendered him 
 such signal services in the case of Nash or Robbins, as well
 
 SUPREME COURT ]VL\RSHALL'S APPOINTMENT. 385 
 
 as in the cabinet, refused to make the desired appointment, 
 and nominated the latter, who promptly accepted the posi- 
 tion. He had abundant reasons therefor. He probably 
 never held an office that harmonized with his tastes and dip- 
 lomatic nature except that of secretary of state. He cared 
 little for the chief justiceship itself, less for the honor, 
 nothing for the salary. But the terms of the courts were 
 so arranged, and the condition of the dockets such, that 
 the position gave him what he desired, — an opportunity to 
 remain at home, at his leisure. Pre^aous to his accession 
 to the bench, not only the jurisdiction of the Supreme Court 
 was limited, but also the number of causes upon its dockets. 
 This tribunal had been in successful operation, in general 
 mth a retinue of six judges, for eleven years, and had, so 
 far as the reports show, including a variety of motions and 
 matters of practice, decided sixty-four causes, an average 
 of about six annually ; and less than ten of these causes 
 were of special importance. The position appealed to Mar- 
 shall's love of power, and enabled him to keep watch and 
 ward over Jefferson. 
 
 The appointment at first gave great dissatisfaction. The 
 Republicans complained that Adams, because of his own 
 personal hostility, had put the strongest opponent of their 
 chief in Virginia as a check over him. The dominant fac- 
 tions of the Federal party treated the nomination of Jay as 
 a farce, and complained that Adams had disregarded the 
 claims of Paterson in order to reward *' the favorite," who 
 held views in relation to party policy and the construction 
 of the Constitution more liberal than their own. 
 
 Wolcott, in his letter to Fisher Ames, states with pre- 
 cision what they thought of Marshall and his views : " He 
 is, doubtless, a man of virtue and distinguished talents, hut 
 he loill thinJc much of the State of Virginia, and is too 
 much disposed to govern the world according to the rules of 
 logic. He will read and expound the Constitution as if it
 
 386 DARTMOUTH COLLEGE CAUSES. 
 
 loere a penal statute, and ivill sometimes he embarrassed with 
 doubts, of lohich his friends ivill not perceive the impor- 
 tance.^^ 
 
 With occasional fluctuations like that from Gibbons v. 
 Ogden (9 Wheat. 1), in which, contrary to his prior convic- 
 tions, he absorbed and afterwards reiterated the argument 
 of Webster, to Wilson v. Blackbird Creek Company (2 Pet. 
 245), in which the reasoning and conclusion were his own, 
 he gradually changed his meridian toward that of Jay. 
 
 The extent of the business of the Supreme Court during 
 the time Marshall presided over it has been much exagger- 
 ated. Less than thirteen hundred cases were decided by it, 
 and, in those, Marshall delivered about five hundred opin- 
 ions, or, on an average, about fifteen a year. During the 
 first two years after he came to the bench, but five causes 
 were decided, in four of which he delivered the opinion. 
 His first term lasted five days. The average number of 
 causes decided per year was less than forty. But a few 
 years ago, the Supreme Court of Pennsylvania, under Chief 
 Justice Agnew, held a term of seven weeks, and in that 
 time disposed of four hundred and twenty-five out of the 
 four hundred ond fifty cases on his docket. The contrast is 
 apparent. 
 
 It is true that some of the decisions of the Federal 
 Supreme Court were of transcendant importance, but the 
 mass of them were of no greater consequence than those 
 which came before the Suj^reme Courts of the several States. 
 
 In December, 1801, the famous case of Marbury v. Madi- 
 son came legitimately before the court. The facts were few 
 and simple. 
 
 The last part of the last session under Adams was spent 
 by him and his cabinet in making appointments which should 
 properly have gone over to the incoming administration. 
 The reason assigned by Adams for this step was, that he 
 regarded the power lodged in his hands as a great trust,
 
 LAST DAYS OF ADAMS's ADMINISTllATION. 387 
 
 which it was his duty to exercise for the good of the Union ; 
 that his ftiith had been shaken in the principles of Jefferson, 
 and particularly those relating to the judiciary ; that if he 
 did not fill the positions, and thus defeat the purposes of 
 Jefferson, the latter would obtain control over the courts by 
 filling them from the ranks of his political friends who 
 shared his views, and thus endanger the government. As 
 Jefferson phrased it : " The last day of his [Adams's] politi- 
 cal power, the last hours, and even beyond the midnight, 
 were employed in filling all offices, and especially permanent 
 ones, with the bitterest Federalists, and providing for me 
 the alternative, either to execute the government by my 
 enemies, whose study it would be to thwart and defeat all 
 my measures, or to incur the odium of such numerous 
 removals from office as might bear me down." Commis- 
 sions were sent to fill vacancies where no vacancies could 
 exist, unless created by the appointee vacating one office by 
 accepting another ; others were sent through the mail to 
 marshals, etc. Adams had signed the commissions ot 
 William Marbury, Dennis Ramsay, Robert T. Hooe, and 
 William Harper, as justices of the peace for the District of 
 Columbia ; the secretary of state had affixed to them the 
 seal of the United States in due form, but they had never 
 been delivered, Adams having left before the morning liixht 
 of the day on which his successor was inaugurated. They 
 were found by Jefferson upon the table of the secretary, and 
 he forbade their delivery. 
 
 Madison did not assume the office of secretary of state 
 for several weeks. In the meantime, the attorney-general, 
 Levi Lincoln, whose judicial sandals were afterwards taken 
 by Story, was the acting secretary of state, and was cogni- 
 zant of the facts. Lee, the attorney-general under Adams, 
 moved in the Supreme Court, in each case, for a rule on 
 Madison to show cause why a mandamus should not issue, 
 commanding him to deliver the respective commissions.
 
 388 DARTMOUTH COLLEGE CAUSES. 
 
 Lincoln and other witnesses were examined, in the presence 
 of the court, upon written interrogatories. He stated 
 that he was acting secretary of state when the transaction 
 happened ; that he did not know that the commissions ever 
 came to the possession of Mr. Madison, or that they were 
 in the office when Madison took possession of it ; he refused 
 to state what had become of them, the court saying if they 
 never came to the possession of Mr. Madison it was imma- 
 terial to the present cause what had been done with them 
 by others. The rule issued ; the secretary of state was 
 silent, but the cause was elaborately argued in behalf of the 
 petitioners upon the motion for a peremptory writ. At the 
 February term , 1803, Judge Marshall delivered an opinion 
 covering nearly twenty-seven pages in the printed volume. 
 This was the first of that line of remarkable constitutional 
 opinions upon which the reputation of Marshall, as a jurist, 
 must mainly rest. The issue, in a legal sense, was exceed- 
 ingly narrow. The vital and decisive question which con- 
 fronted the petitioners at the very threshold of their case 
 was, whether the court had jurisdiction ; and this depended 
 upon another, whether Congress could annul the Constitu- 
 tion, or authorize or compel the court to disregard its pro- 
 visions. This decision has often been treated as though 
 Marshall had discovered some new principle, as Newton did 
 the law of gravitation. The question was neither new nor 
 difficult, nor did Marshall so regard it. There was nothing 
 new in his reasoning upon that point. He simply reiterated 
 what had been previously said by Hamilton, Wilson, and by 
 many other eminent statesmen and jurists. In his opinion 
 he says : " The question, whether an act repugnant to the 
 Constitution can become the law of the land, is a question 
 deeply interesting to the United States, but, happily^ not of 
 an intricacy pi'oportioned to its interest. It seems only 
 necessary to recognize certain pi'inciples, supposed to have 
 been long and well established, to decide it." And in
 
 MARBURY V. MADISON. 389 
 
 Cohens v. Virginia he said: "In the case of Marbury v. 
 Madison, the single question before the court, so far as that 
 case can be applied to this, was, whether the legislature 
 could give this court original jurisdiction in a case in which 
 the Constitution had clearly not given it, and in which no 
 doubt respecting the construction of the article could pos- 
 sibly be raised."
 
 CHAPTEK XV. — Continued. 
 
 In the dark days which preceded the Revolution, the people 
 of the Colonies had been thoroughly indoctrinated with the 
 idea that the acts of Parliament of which they complained 
 were unconstitutional, and therefore void, and that, in con- 
 sequence, they were justified in resisting their enforcement. 
 Judge Wilson, in a famous pamphlet, had urged with great 
 ingenuity and force that it was the right and the duty of 
 the courts to set aside such acts. This view was supported 
 by many of the most eminent politicians, statesmen, and 
 jurists of that day. This doctrine had sunk deep into the 
 popular mnid. 
 
 The judges in Rhode Island had set aside an act of the 
 Legislature as unconstitutional. The same is true of New 
 Jersey. In 1788 and 1793, the Court of Appeals in Virginia 
 had done the same thing. The power of the highest court 
 to set aside such acts was recognized in New Hampshire 
 soon after the adoption of the written Constitution of 1784. 
 From 1790 to 1799, they were repeatedly declared void by 
 the highest court, and sometimes by inferior tribunals. 
 
 Jeremiah Mason began practice in New Hampshire in 
 1791. With characteristic humor he thus describes the man- 
 ner in which two statutes of the State were set aside, one 
 by a justice of the peace and the other "by the inferior 
 Court of Common Pleas : " — 
 
 " At this time the Legislature was in the practice of frequently 
 interfering with the business of the courts by granting new trials 
 and prescribing special rules for the trial of a particular action. 
 A ludicrous instance of the exercise of this sovereign power 
 occurred early in my practice at "Westmoreland. A poor man was 
 accused of having stolen two small pigs of a neighbor, who 
 
 (890)
 
 JEREMIAH MASON THE PIG CASE. 391 
 
 applied at m}'- office for a prosecution for larceny. Doubting 
 whether the taking of the pigs, under tlie circumstances, amounted 
 to stealing, one of my students, to whom in my absence the appli- 
 cation was made, advised to an action of trover ; this was com- 
 menced, in which the two pigs were alleged to be of the value of 
 one dollar. The deputy sheriff, in serving the writ, finding 
 nobody at the defendant's cottage, left the summons safely placed 
 between the door and sill, which the plaintiff, living near, saw 
 done. As soon as the sheriff was out of sight, the plaintiff went 
 and stole away the summons. Unluckily for him, this was seen 
 b}"^ a person at a distance. The action was, of course, defaulted, 
 and the first news the defendant had of it was an execution. He 
 made a great outcry, and soon ascertained that the summons had 
 been stolen. He came to me with his complaint, and I offered 
 him to have the judgment and execution cancelled, and to let him 
 have a trial for the pigs. This he rejected with contempt, and 
 forthwith applied to the Legislature, then in session, for a remedy 
 for his grievance. The Legislature, without notice to the opposite 
 party, immediately passed an act directing the magistrate to cite 
 the plaintiff before him, set aside the default and try the action, 
 and to allow to either party an appeal. Tlie plaintiff was cited, 
 and I appeared for him, and denied the power of the Legislature 
 to pass the act, and went into an argument on the constitutional 
 restraints of the legislative power. This was answered by the 
 opposing counsel by portraying the audaciousness of the attempt 
 of an inferior magistrate to question the power of the supreme 
 Legislature. But the justice, having been an officer in the Revolu- 
 tionai-y army, and being desirous of sustaining his reputation for 
 courage, which stood high, promptly pronounced the act utterly 
 void, and refused to obey it. An appeal was claimed and disal- 
 lowed, the justice saying that, as the whole proceeding was void, 
 he had no rightful power to record a judgment or grant an appeal. 
 Thus ended the first act of the farcical drama. The defendant, 
 nothing discouraged by his ill-luck, obtained from the sovereign 
 Legislature, at its next session, an act directing the Court of Com- 
 mon Pleas to try the defaulted action. There the parties again 
 met, and, after due argumentation and deliberation had, that court 
 determined they would do nothing with it. By this time the pig 
 action had gained extensive notoriety, and tended much to bring 
 such special acts of the Legislature, interfering with the regular
 
 392 DARTMOUTH COLLEGE CAUSES. 
 
 course of the courts of law, into ridicule and deserved contempt." 
 (Mason's Mem. 26, 27.) 
 
 Whether the Constitution conferred upon the courts the 
 power to set aside, as unconstitutional, the laws passed in 
 violation of its provisions, was considered by the Federal 
 Convention. There were dissenting voices, it is true, but 
 the most eminent of its members treated the power as 
 unquestionable. Hamilton demonstrated the existence, 
 necessity, and propriety of this power in " The Federalist," 
 and particularly in No. 78, published June 17 and 20, 1788. 
 Judge Wilson did the same. (1 Wilson's Works, 460, 
 463.) Judges of the Supreme Court, sitting at the circuit, 
 confirmed this view ; and some of them had reiterated it in 
 their opinions, delivered from the Supreme Bench, without, 
 so far as we now recollect, a single dissenting voice, though 
 there were undoubtedly able men who thought otherwise. 
 
 It is no wonder, then, that Marshall regarded the point 
 clear and unquestionable, or that the court decided it had 
 no jurisdiction, and ordered the rule discharged. 
 
 The most extraordinary features of Marbury v. Madison 
 are, the extra-judicial character of nearly four-fifths of the 
 opinion, and the striking similarity in the conduct of its 
 author and that of Story in Ex parte Christy, to which we 
 have already referred. In both cases, the personal feelings 
 of the judges were strongly enlisted ; in both, it was self- 
 evident that the court had no jurisdiction ; in both, on that 
 question, the opinions were brief; and in both they went 
 out of their way, and attempted to decide what the law was 
 on a variety of the most important questions, not before the 
 court. Both had a purpose in adopting this censurable 
 course, and their eminence cannot make wrong right. 
 
 Marshall's nature was robust; he compelled argument, 
 listened patiently, and weighed with care, but was never 
 given to sentimental delicacy in the discharge of his judicial 
 duties. As we have already seen, he had participated in the 
 decision — whether at the summons of Story or of his own
 
 REAL ISSUE IN MARBURY V. MADISON. 39;^ 
 
 motion does not appear — upon a most important question 
 of constitutional law, when no cause was before the court ; 
 he had failed to rebuke his great friend and admirer, Wirt, 
 who sought his opinion before he instituted his suit in favor 
 of the Cherokee Nation. Wirt, it is true, had taken the 
 opinion of such jurists as Chancellor Kent, Webster, Spencer, 
 and other lesser luminaries, who were supposed to know a 
 little something of the law ; but it was, of course, infinitely 
 more important for him to know beforehand the opinion of 
 the chief justice, and especially when it was almost certain 
 that his opinion upon such a question would be adopted by 
 a majority of the court. It would simplify practice much, 
 and lessen the labors of the profession, if all lawyers could in 
 this way know before they instituted their causes how the 
 court would decide them. Lord Mansfield, whom Marshall 
 admired, had strict notions upon the subject. In Rex 
 V. Earl Ferrers (1 Burr. 633), when the earl came to 
 Westminster Hall he sent a message to the chief justice, 
 desiring to speak with him ; but Lord Mansfield bid the mes- 
 senger tell his lordship, " that when an Affair was depend- 
 ing before the Court, he could not speak with any Body 
 about it, but in Court.''' 
 
 In Marbury v. Madison, Marshall treats the case as one of 
 "peculiar delicacy," and says, " At first view," it might 
 ' ' be considered by so7ne as an attempt to intrude into the 
 cabinet, and to intermeddle with the prerogatives of the 
 executive ; ' ' and in this he was clearly right. In this 
 case he was reviewing, as a judge, the legal efiect of his own 
 acts, and what he had omitted to do when a member of the 
 cabinet. It puts any judge in a delicate position when he 
 attempts to decide questions not before him, and especially 
 where the personal relations were of such an extraordinary 
 and peculiar character as in this case. 
 
 Marbury and Madison were the John Doe and Richard 
 Roe of the ejectment ; the real issue was between John 
 Marshall and Thomas Jefferson, — a trial of strength in
 
 394 DARTMOUTH COLLEGE CAUSES. 
 
 their new positions. The bulk of the opinion was a dis- 
 course upon government, addressed by one Virginia politi- 
 cian to another ; a lecture to the new president upon the 
 duties of his office ; a horn-book for the guidance of the 
 inferior courts in compelling the president, through his 
 " head clerk," to obey their order, when an application for 
 that purpose should be made to them. In Cohens v. Vir- 
 ginia, Judge Marshall repudiated a portion of what he 
 termed the " dicta " in this opinion. 
 
 The death of Hamilton, in 1804, left Marshall the only 
 great leader spared from the shipwreck which engulfed his 
 political associates, and he drifted, though at first slowly, 
 further into the Hamiltonian current. In later life, after 
 he came under the combined influence of Pinkney, Story, 
 and Webster, these views of Marshall were much intensified. 
 We have before adverted to the close relations which existed 
 between Story and Marshall, and the reciprocal influence 
 they had over each other ; that of Webster assumed a 
 diflerent form, and operated through another channel. Mar- 
 shall did not even know Webster till after he read his 
 speech of June 10, 1813. He regarded him as a statesman 
 and a very able man, but never, even after the struggle 
 between these two Titans in Bullard v. Bell, as the equal 
 of Pinkney, whom he always declared " the greatest man 
 and the most luminous reasoner " he had ever seen in a 
 court of justice. Webster won upon him by his ponderous 
 power, through Story, and by his course in relation to the 
 court. When the attempt was made, in 1826, to repeat 
 what transpired under Adams when the judiciary bill was 
 jDassed and the appointments made, Webster, in his confi- 
 dential note to Mason, of May 2, 1826, says : " In looking 
 out for men to fill these places, a very honest and anxious 
 desire is felt, I believe, to find men who concur in the 
 leading decisions of the Supreme Court. If any error be 
 committed on that point it will be through misinformation." 
 (Mason's Mem. 303.) This statement carries its own
 
 Marshall's drift — the point on the surface. 395 
 
 comment. It is obvious what decisions Webster had in 
 mind. We know how this sentiment pervaded the bench, 
 and how, in consequence, Duvall endured so much dis- 
 comfort, and held his place, against his own wishes, until 
 he ascertained that he could, in effect, name his suc- 
 cessor. 
 
 It has been suggested that Marshall dissented from the 
 decision in Terrett v. Taylor (9 Cranch, 43). We do not 
 so understand it. 
 
 Story, who of all men was in a situation to know the 
 facts, in 1828, said: "Few decisions upon constitutional 
 questions have been made in which he [Marshall] has not 
 delivered the opinion of the court ; and in these few the duty 
 devolved upon others to their own regret, either because he 
 did not sit in the cause, or from motives of delicacy abstained 
 from taking an active part. 
 
 " If we do not mistake, there is but a single case in 
 which his judgment is known to have differed from that 
 of the court upon any point of constitutional law. That 
 case was Ogden v. Saunders, decided at the last term of the 
 court, which involved the question of the constitutionality 
 of an insolvent law which was passed antecedently to the 
 formation of a contract and discharged its obligation." 
 
 We may remark here, that not long after the decision in 
 Ogden V. Saunders, Mr. Webster, in a conversation with 
 Mr. Choate in relation to that in Trustees v. Woodward, 
 said, with his characteristic simplicity and impressive force : 
 "There was a point which lay upon the surface of that 
 case, neither taken by counsel nor considered by the court. 
 If it had been properly presented, the decision would prob- 
 ably have been the other way." We give the statement 
 as we have it from a member of the profession, whose 
 personal relations with Choate and one of the leading 
 trustees were peculiarly intimate, and to whom Choate 
 repeated it. 
 
 Marshall adhered to the last to his opinion in the College
 
 396 DARTMOUTH COLLEGE CAUSES. 
 
 case. In his letter to Story, of July 31, 1833, in relation to 
 the case of Dr. Allen against the treasurer of Bowdoin Col- 
 lege, which we have considered in a previous chapter, he says : 
 " I have received the paper containing your opinion in the 
 very important case of Allen v. McKean. It is impossible 
 a subject could have been brought before you on which you 
 are more completely aufaif. It would seem as if the State 
 Legislatures (many of them at least) have an invincible hos- 
 tility to the sacredness of charters. From this paper I 
 should conjecture that this case will proceed no further." 
 (2 Life of Story, 150.) 
 
 We have already shown that when this letter was written, 
 the great Bridge case had been before the Supreme Court 
 for years, and that Stor}'' had written out his opinion and 
 submitted it to Mason for his inspection and revision nearly 
 twenty months before. 
 
 We pass by the chaotic mass of contradictory opinions in 
 relation to the powers conferred by the Constitution over 
 admiralty causes, etc. 
 
 In Sturges v. Crowninshield, Marshall was compelled by 
 the necessities of his position, as well as by his natural con- 
 victions, to adopt the middle ground between the doctrine 
 of Johnson and Livingston on the one hand, and Washington 
 on the other, in relation to the power of the States over 
 bankruptcies. 
 
 In Gibbous v. Ogden he struck out the key-stone of the 
 arch on which that very able constitutional lawyer, Professor 
 Pomeroy, rests his "national" theory, by sa3dng: "As 
 prehminary to the very able discussions of the Constitution 
 which we have heard from the bar, and as having some 
 influence on its construction, reference has been made to 
 the political situation of these States anterior to its forma- 
 tion. It has been said that they were sovereign, were com- 
 pletely independent, and were connected with each other 
 only by a league. T7iis is true.'" 
 
 The doctrine of the majority of the court in Ogden v. Saun-
 
 WHAT ENTERS tNTO OBLIGATION CLAUSE. 397 
 
 ders, overruling Marshall, has since been affirmed (in 1872), 
 in the following emphatic language : * ' The act is not an 
 ex post facto law only because that phrase, in its legal sense, 
 is confined to crimes and their punishment. 
 
 " The Constitution of the United States declares that no 
 State shall pass any ' law impairing the obligation of con- 
 tracts.' 
 
 ' ' These propositions may be considered consequent axioms 
 in our jurisprudence : — 
 
 " The laws which exist at the time and place of the mak- 
 ing of a contract, and where it is to be performed, enter 
 into and form a part of it. This embraces alike those which 
 affect its validity, construction, discharge, and enforcement. 
 * * * The ideas of validity and remedy are inseparable, 
 and both are parts of the obligation which is guaranteed by 
 the Constitution against impairment. 
 
 " The obligation of a contract ' is the law which binds the 
 parties to perform their agreement.' 
 
 *'Any impairment of the obligation of a contract — the 
 degree of impairment is immaterial — is within the prohibi- 
 tion of the Constitution," (Walker v. Whitehead, 16 Wall. 
 314.) 
 
 But unless some limitation is imposed upon the broad 
 terms used in these two cases from which wo have quoted, 
 a singular result might follow. The la'-.v of the place, 
 whether statutory or otherwise, whatever it may be, by the 
 rule stated, enters into the obligation of the contract. A., 
 for a pecuniary consideration, might contract with B., with 
 every possible formality of which the legal mind could con- 
 ceive, to murder C. By the ex^Dress terms of the contract, 
 he might be entitled to receive his compensation. He 
 might bring his suit, but he could not recover, because the 
 law of the land, whether written or unwritten, stepped in 
 at the formation of the contract and annulled the binding 
 force of its express and positive terms.
 
 398 DARTMOUTH COLLEGE CAUSES. 
 
 If the College charter was a contract, it was a British 
 contract, antedating the Constitution itself, and every prin- 
 ciple of British law applicable to the subject, which existed 
 at the time, entered into it or its obligation. If the pro- 
 viso had been wi'itten into the charter that Parliament — 
 the two legislative branches of the government — might 
 alter, amend, or repeal that charter at their pleasure, this 
 provision would have had, to say the least, as much binding 
 force as any other in the instrument. If such a proviso had 
 been written in, in 1769, would the adoption of the obliga- 
 tion clause, in 1788, have blotted it out of the charter? 
 And yet, so far as the law of Great Britain was concerned, 
 such a clause would have been waste paper. The legal effect 
 of the charter was precisely the same, whether this proviso 
 was inserted or omitted. The foundation principle upon 
 which the whole structure of English law and government 
 rests, is thus forcibly stated by Story : " Even in England, 
 where the principles of civil liberty are cherished with 
 uncommon ardor, and private justice is administered with a 
 pure and elevated independence, the acts of Parliament are, 
 by the very theory of the government, in a legal sense, 
 omnipotent. They cannot be gainsaid or overruled. 
 
 " They form the law of the land, which controls the pre- 
 rogative, and even the descent, of the crown itself, and may 
 take away the life and property of the subject without trial 
 and without appeal." 
 
 The answer, if there be any, to the supposed difficulty 
 would seem to be that such a case or purpose never entered 
 the minds of the framers of the Constitution, or of the 
 people when they adopted it ; but Marshall, in Trustees v. 
 AVoodward, concedes that this is also true in respect to the 
 doctrine adopted by him, and holds that it is for those who 
 deny it, or its application, to go further, and show if it had 
 been brought- to their attention they would have rejected it. 
 How, before what tribunal, and by what evidence, can this
 
 LAWS OF GREAT BRITAIN AND THE CHARTER. 399 
 
 be shown? Such a rule makes a question of constitutional 
 law of transcenclant importance depend upon a Yankee's 
 " guess " as to what a mere question of fact was. 
 
 But a great change in the current, prefigured by the revolt 
 of a majority of the judges, in Ogden v. Saunders, from the 
 domination of Marshall and Story, was to come. The deci- 
 sions in the great cases of the Mayor, etc., of New York v. 
 Miln (11 Pet. 102), Briscoe v. The Bank of Kentucky (11 
 Pet. 257), and Charles River Bridge v. Warren Bridge (11 
 Pet. 420), were second in their importance only to the 
 action of the Federal Convention in creating the Constitu- 
 tion. They had been argued with gi'eat ability before Mar- 
 shall, and had been carefully considered by him. In his 
 opinion, the State laws in question were in violation of the 
 Federal Constitution, and therefore void. The same causes 
 were reargued before his successor, and held valid. 
 
 The decision in the case of The Mayor v. Miln, aided by 
 that in Wilson v. Blackbird Creek Company, smoothed the 
 way for that in Gilman v. Philadelphia (3 Wall. 713), in 
 which a majority of the court made a dissenting opinion of 
 Taney the law, and overturned one of the foundation prin- 
 ciples of Gibbons v. Ogden. 
 
 We have already commented upon the great departure, in 
 the case of Charles liiver Bridge v. Warren Bridge, from 
 the construction put upon the ' ' obligation clause ' ' in 
 Fletcher V. Peck and the College cases. 
 
 In 1835, the language of the Constitution was precisely 
 what it was in 1837 ; but as names and forms cannot change 
 substance, in these two years we lived under two mate- 
 rially difierent constitutions. These decisions in 1837 filled 
 Story with alarm. The truth is thus pithily stated by his 
 son ; " The fact that, in the only three constitutional ques- 
 tions which came before the court this session, my father 
 found himself compelled to deliver dissentient opinions, 
 indicates very plainly that the constitutional views of him- 
 self and Marshall differed from those entertained by a ma-
 
 400 DARTMOUTH COLLEGE CAUSES. 
 
 jority of his present brethren upon the bench. * * * My 
 father now became convmced that a new era had come, 
 and that with the spirit which now animated the court he 
 could not hope to agree with them upon constitutional 
 points. His position was, therefore, rendered somewhat 
 embarrassing, and he was very desirous to resign his office." 
 (2 Life of Story, 271.) 
 
 Story himself says, in his letter to Harriet Martineau, of 
 April 7, 1837 : " I am the last of the old race of judges. I 
 stand their solitary representative, with a pained heart and a 
 subdued confidence. Do you remember the story of the last 
 dinner of a club who dined once a year ? I am in the predic- 
 ament of the last survivor." (2 Life of Story, 277.) 
 
 Li his letter to Judge McLean, of May 10, 1837, Story 
 says : " There will not, I fear, ever in our day be any case 
 in which the law of a State or of Congress will be declared 
 unconstitutional ; for the old constitutional doctrines are 
 fast fading away, and a change has come over the public 
 mind from which I augur little good. Indeed, on my return 
 home I came to the conclusion to resign." ('2 Life of 
 Story, 272.) 
 
 Li his letter of April 12, 1845, Story writes to his old 
 fi'iend Bacon : "I have long been convinced that the doc- 
 trines and opinions of the old court were daily losing ground, 
 and especially those on great constitutional questions. New 
 men and new opinions have succeeded. The doctrines of 
 the Constitution, so vital to the country, which in former 
 times received the support of the whole court, no longer 
 maintain their ascendancy. I am the last member now 
 living of the old court, and I cannot consent to remain 
 where I can no longer hope to see those doctrines recognized 
 and enforced. * * * I am persuaded that by remaining 
 on the bench I could accomplish no good either for myself or 
 for my country." (2 Life of Story, 527, 528.) 
 
 We have already referred to Fletcher v. Peck. The 
 Legislature of Georgia, in 1795, claiming that the United
 
 STORY AND THE COURT NEW INTERPRETATIONS. 401 
 
 States had no title to certain Western tribal lands, that they 
 were within the boundaries of Georgia, that Georgia held 
 the title, subject to the unextinguished Indian title, author- 
 ized the governor, by an act for that purpose, to convey the 
 same to James Gunn and others. The governor made the 
 conveyance in due form, for a valuable consideration. A 
 portion of these lands was conveyed by the original grantees 
 to James Greenleaf, and from him through a chain of con- 
 veyances to the defendant, Peck. All the conveyances after 
 that to the original grantees were made for valuable consid- 
 erations, without knowledge or notice on the part of any 
 of these vendees that the original grantees secured the pas- 
 sage of this act, as was alleged, by bribery, etc. A subse- 
 quent Legislature, alleging this corruption, passed another act 
 rescinding the former one, annulling the deed to the original 
 grantees, and asserting the title of the State to the lands 
 it covered. Peck conveyed, with covenants, to Fletcher. 
 After the act, Fletcher brought suit for covenant broken. 
 This, like Sturges v. Crowninshield, was a Massachusetts 
 case. In the one the legislation of Georgia, and in the other 
 that of New York, was held invalid. Whether Fletcher v. 
 Peck was at the bottom a genuine case, or one in which 
 important questions were mooted for the purpose of further- 
 ing in another field the interests of speculators, may be 
 questioned, however legitimate it may have been so far as 
 the counsel and some of the immediate actors were con- 
 cerned. This cause was argued the last time by Martin for 
 the plaintiff, and Robert Goodloe Harper and Joseph kStory 
 for the defendant. Few things could be more absurd than to 
 imagine these great lawyers gravely arguing before such a 
 court whether the solemn enactment of a great State could 
 be set aside by the finding of a quarter-sessions judge or petit 
 juiy that its passage was procured by '< undue influence," 
 or purchase. 
 
 Judge Marshall discussed the points raised by the first 
 count last, and seems to have held, — 
 
 26
 
 402 DARTMOUTH COLLEGE CAUSES. 
 
 1. That a State, unless restrained by its Constitution, may 
 sell its lands. 
 
 2. There was no such prohibition in the Constitution ot 
 Georgia. 
 
 3. That the question as to the title of the United States 
 had been settled by compact. 
 
 4 . That the reservation , ' ' for the use of the Indians , " etc . , 
 " was a temporary arrangement," and did not prohibit the 
 State from acquiring or selling these lands. 
 
 5. That somehow the Indian title either could or would 
 not be legally invaded. 
 
 6. That a recovery might be had, notwithstanding the 
 peculiar language of the covenants and the state of the 
 Indian title. 
 
 7. That, as between the State and innocent purchasers, the 
 court would not enter into an investigation of the question 
 as to whether the original grantees obtained their title by 
 corrupting the Legislature or not. 
 
 The fourth covenant was, that the title to the premises 
 had been in no way constitutionally or legally impaired 
 by any subsequent act of any subsequent Legislature of 
 Georgia. 
 
 The third count based upon this covenant set forth the 
 corruption of the Legislature, the annulling act at length, 
 and averred that by reason of this act the title of Peck was 
 constitutionally and legally impaired. The defendant again 
 pleaded that the first purchaser under the original grantees, 
 and all subsequent holders of the property, including him- 
 self, were purchasers without notice. There was a demurrer 
 and joinder. Eight pages of Marshall's opinion are devoted 
 to the discussion of the questions thus raised. 
 
 It would seem that five, at least, of the grounds upon 
 which Marshall put the decision originated, not with him, 
 but the counsel. The argument of the counsel for the 
 defence upon two of these points is thus reported by Judge 
 Cranch (p. 123) : "The Legislature of Georgia could not
 
 POINTS APPARENTLY DECIDED IN FLETCHER V, PECK. 403 
 
 revoke a grant once executed. It bad no right to declare 
 the law void ; that is the exercise of a judicial, not a legis- 
 lative, function. It is the province of the judiciary to say 
 what the law is, or what it loas. The Legislature can only 
 say what it shall he. 
 
 " The Legislature was forbidden by the Constitution of 
 the United States to pass any law impairing the obligation 
 of contracts. A grant is a contract executed, and it creates 
 also an executory contract, which is, that the grantee shall 
 continue to enjoy the thing granted, according to the terras 
 of the grant." 
 
 The opinion of Marshall certainly adds nothing to the 
 clearness and force of these jDositions. But he apparently 
 originated and coupled with them the points in relation to 
 ex post facto laws, bills of attainder, and estoppel. 
 
 Fletcher v. Peck has been commonly treated as if he put 
 the judgment distinctly upon the ground that the annulling 
 act impaired the obligation of contracts. Few things could 
 be farther from the truth. In summing up, he puts the 
 judgment distinctly upon the ground " that, in this case, 
 the estate having passed into the hands of a purchaser for a 
 valuable consideration without notice, the State of Georgia 
 was restrained, either by general principles which are com- 
 mon to our free institutions, or by the particular provisions 
 of the Constitution of the United States, from passing a 
 law whereby the estate of the plaintiff in the premises so 
 purchased could be constitutionally and legally impaired 
 and rendered null and void." The italics are ours. 
 
 This is but little, if anything, more than was said by the 
 same judge when ' ' delivering the opinion of the court ' ' in 
 Insurance Company v. Canter (1 Pet. 511). In that case, 
 after discussing whether the power to govern was derived 
 from the right to acquire territory or from a specific clause 
 in the Constitution, he put the judgment upon the gi'ound 
 that, " whichever may be the source whence the power is 
 derived, the possession of it is unquestioned." In subse-
 
 404 DARTMOUTH COLLEGE CAUSES. 
 
 quent decisions by the same court, this power has been 
 placed first on one of those grounds and then on the 
 other. The first proposition stated by Marshall as the 
 foundation of the judgment in Fletcher v. Peck was the 
 one, as we have seen, supported at length by Mason and 
 Smith before the State court, and by Mr. Webster in the 
 Supreme Court, in the College case. That this was the 
 favorite doctrine of Story, as well as Webster, is not 
 only well known as a fact, but is shown by Story's letter 
 to Mason, above quoted, and in his subsequent opinions 
 in Terrett v. Taylor (9 Cranch, 50) and Society v. Pawlet 
 (4 Pet. 480). If this position was sound, the discussion of 
 the obligation clause and other provisions of the Federal 
 Constitution was unnecessary, Johnson having spoken for 
 himself. 
 
 The second reason assigned for the judgment is, not that 
 the annulling act was prohibited by a particular provision, — 
 i.e. , the obligation clause, — but by ' ' particular provisions ' ' 
 of the Constitution. Those "provisions" are sufficiently 
 indicated in the opinion. The argument is, that the rescind- 
 ing act was void because — 
 
 1. It was virtually a bill of attainder. 
 
 2. It was, in effect, an ex post facto law. 
 
 3. It impaired the obligation of contracts. 
 
 Marshall quotes and indorses Blackstone's definition 
 of contracts. (2 Bla. Comm. *440, *443, chap. 30.) This 
 chapter is entitled, ' ' Title by gift, grant, and contract. ' ' He 
 says : " Gifts, then, or grants, which are the eighth method 
 of transferring personal property, are thus to be distin- 
 guished from each other : that gifts are always gratuitous ; 
 grants are upon some consideration or equivalent ; and they 
 may be divided, with regard to their subject-matter, into 
 gifts or grants of chattels real and gifts or grants of chattels 
 personal. * * * Grants or gifts of chattels personal 
 are the act of transferring the right and the possession 
 of them ; whereby one man renounces and another iinme-
 
 FLETCHER V. PECK OBLIGATION OF CONTRACTS. 405 
 
 diately acquires all title and interest therein ; which may 
 be done either in writing or by word of mouth, attested by 
 sufficient evidence, of which the delivery of possession is 
 the strono-est and most essential. * * * ^ contract 
 may also be either executed, as if A. agrees to change horses 
 with B., and they do it immediately; in which case the 
 possession and the right are transferred together ; or it 
 may be executory, as if they agree to change next week ; 
 here the right only vests, and their reciprocal property in 
 each other's horse is not in possession, but in action ; for a 
 contract executed (which diifers nothing from a grant) con- 
 veys a chose in possession; a contract executory conveys 
 only a chose in action.''^ That the learned author did not 
 refer to the effect of legislative enactments or the alienation 
 of sovereignty is too obvious for comment. It is impossible 
 to reconcile the definition of Blackstone indorsed by Mar- 
 shall with Webster's argument in the Bridge case. Webster 
 says that grants are donations ; Blackstone and Marshall, 
 that they are not. Judge Marshall says : " The contract be- 
 tween Georgia and the purchasers was executed by the grant. 
 A contract executed, as well as one which is executory, 
 contains obligations binding on the parties. A grant, in its 
 own nature, amounts to an extinguishment of the right of the 
 grantor, and implies a contract not to reassert that right. 
 A party is, therefore, always estojDped by his own grant." 
 
 Precisely what is meant by this is not clear. I own a 
 cargo of flour. About my title there is no dispute. My 
 neighbor, knowing all about it, buys it, pays for it, and 
 takes it away. What obligation do I owe him ; what obli- 
 gation is binding on me ? I own lands, — convey them with- 
 out covenants. The purchaser pays me and enters into 
 possession. What obligation binds me? If a legal estop- 
 pel is meant, it would seem obvious that a naked grant 
 carries no obligation with it. The contract has been exe- 
 cuted ; it has- done its work. It is true that parties may 
 couple executory agreements with the subject of an executed
 
 408 DARTMOUTH COLLEGE CAUSES. 
 
 contract, but that is simply saying that parties may make 
 executory contracts if they choose, and that the obligation 
 of those contracts is protected. 
 
 It was not true that a grant, ipso facto, amounted to an 
 extinguishment of the right of the grantor, and implied a 
 contract not to reassert that right. It is true that this had 
 been so held in some cases, as between the cro^ii and its 
 grantee, and had been applied indiscriminately to municipal 
 as well as other corporations. For obvious reasons, no 
 such doctrine had ever been applied as between Parliament 
 and its grantees, or between individuals. 
 
 If a grant — which Webster, in the Charles River Bridge 
 case, says is a donation — creates by implication a valid 
 executory contract that the grantee shall enjoy this grant 
 without impairment, or that the party of the first part shall 
 not reassert the right of a grantor, the grantee is entitled 
 to redress for the damages to which he may be put by a 
 breach of that implied contract by the grantor. Does the 
 phrase ' ' implied contract ' ' mean implied covenant ? If not, 
 what is the form of the remedy? If the title enures to the 
 legislative grantee by estoppel, how can he recover for the 
 loss of a title which he has not lost, and which, being 
 vested, is so protected by the Federal Constitution that it 
 can neither be taken away nor impaired ? The idea of such 
 a contract and estoppel is irreconcilable. 
 
 This was a suit at law, and not a proceeding on the equity 
 side of the court. From the language used, the context, 
 and the general drift of this branch of the opinion, it is 
 hardly within the range of possibilities that Marshall re- 
 ferred, in his opinion in Fletcher v. Peck, to what is now 
 known as equitable estoppel, and which was almost, if not 
 entirely, unknown in suits at law when that case was 
 decided. 
 
 Chief Justice Perley, in Horn v. Cole (51 N. H. 287), 
 states with great force and clearness the character of, and 
 distinction between, legal and equitable estoppels. He says :
 
 LEGAL AND EQUITABLE ESTOPPELS. 407 
 
 " The ground on which a party is precluded from proving 
 that his representations, on which another has acted, were 
 false, is, that to permit it would be contrary to equity and 
 good conscience. Tliis has sometimes been called an equi- 
 table estoppel, because the jurisdiction of enforcing this 
 equity belonged originally and peculiarly to courts of equity, 
 and does not appear to have been familiarly exercised at law 
 until within a comparatively recent date ; and, so far as 
 relates to suits at law affecting the title to land, I under- 
 stand that in England, and in some of the United States, 
 the jurisdiction is still confined to courts of equity. * * * 
 
 " So, in a writ of entry, by the technical rules of law, if 
 the demandant proves seizin in himself, and disseizin by the 
 tenant within the time of limitation, he is entitled to judg- 
 ment ; but if the demandant, having a dormant title to the 
 land demanded, concealed his title and encouraged the tenant 
 to purchase from another, he is not allowed, in our practice, 
 to set up his legal title, because it would be contrary to 
 equity and good conscience. 
 
 " It thus appears that what has been called an equitable 
 estoppel, and sometimes less properly an estoppel in pais, 
 is properly and peculiarly a doctrine of equity, originally 
 introduced there to prevent a party from taking a dishonest 
 and unconscientious advantage of his strict legal rights, 
 though now with us, like many other doctrines in equity, 
 habitually administered at law. But formerly the practice 
 was different, and suits at law, the courts being unable to 
 give effect to this equity, were often enjoined where the 
 party insisted on his rights at law, contrary to the equitable 
 doctrine. 
 
 ' ' It would have a tendency to mislead us in the present 
 inquiry, as there is reason to suspect that it has sometimes 
 misled others, if we should confound this doctrine of equity 
 with the legal estoppel hy matter in pais. The equitable 
 estoppel and legal estoppel agree, indeed, in this : that they 
 both preclude from showing the truth in the individual case.
 
 408 DARTMOUTH COLLEGE CAUSES. 
 
 The grounds, however, on which they do it are not only- 
 different, but directly opposite. * * * 
 
 " Legal estoppels exclude evidence of the truth and the 
 equity of the particular case, to support a strict rule of law, 
 on grounds of public policy. 
 
 ' ' Equitable estoppels are admitted on exactly the oppo- 
 site ground, of promoting the equity and justice of the indi- 
 vidual case by preventing a party from asserting his rights, 
 under a general technical rule of law, when he has so con- 
 ducted himself that it would be contrary to equity and good 
 conscience for him to allege and prove the truth." 
 
 Tlie probabilities are but little stronger that Marshall 
 referred to the technical estoppels of the law. They were 
 universally recognized at that time as odious, were strictly 
 construed, and never favored. A seal does not necessarily 
 estop him who seals. That a grantor may estop himself by 
 a solemn admission of fact, or bind himself by an executory 
 agreement embodied in a sealed instrument, was as well 
 knoAvn then as now, and it is entirely immaterial whether 
 the deed was a warranty, release, or quitclaim ; but the 
 naked grant had no such effect. Some have supposed that 
 Marshall meant to assert the principle that there was an 
 implied warranty of title alike in sales of personal and real 
 estate. It is the generally recognized American rule, at the 
 present time, that the seller of a chattel, if in possession, 
 but not otherwise, warrants, by implication, that the title is 
 in him. It is unnecessary to consider the numerous excep- 
 tions to this rule, and limitations upon it. Even in this 
 qualified form it was not the settled rule, either in this 
 country or Great Britain, when Marshall wrote his opinion ; 
 and even this rule, to use the emphatic language of Pro- 
 fessor Parsons, " must be confined to sales of chattels. In 
 the sale of real estate by deed there are no implied warran- 
 ties." 
 
 Taken in connection with the position of counsel, already 
 stated, the only simple and natural explanation of the Ian-
 
 Marshall's "legal fiction." 40!) 
 
 guage of the chief justice, which we have quoted, is that he 
 saw that it was impossible to construe .the obligation clause 
 to apply to any but executoiy contracts ; that he thought 
 its framers ought to have protected grants and conveyances 
 as well ; that he felt they were within the mischiefs against 
 which they should have guarded, and he, therefore, invented 
 the ' ' legal fiction ' ' that an executory contract was always 
 inside the body of an executed one, in order to bring it 
 within the protection of the obligation clause. 
 
 A comparison of the opinions and the position of the 
 judges who sat in Fletcher v. Peck and Trustees v. Wood- 
 ward shows a marked change in nine years. Marshall did 
 not, in the College case, as in the former, put the decision 
 upon several, but a single provision of the Constitution. 
 The positions that the acts were void because they were 
 virtually bills of attainder, or ex post /ado laws, the argument 
 in support of which occupies so conspicuous a place in the 
 opinion in Fletcher v. Peck, were apparently abandoned, — 
 at all events, they disappeared, — with the position that 
 the State was estopped. But the implied contract, to which 
 the question of estoppel was mistletoed in some mysterious 
 way, still appears. Singular as it may seem, Mr. Justice 
 Johnson, after the somewhat remarkable conference at 
 Albany, descends from the j)edestal of his " higher law," — 
 the highest ever heard of, that " which will impose laws 
 even on the Deity," — abandons his stout dissent from Mar- 
 shall, in Fletcher v. Peck, in relation to the obligation 
 clause, and concurs in the judgment in the College case 
 "for the reasons stated by the chief justice," Whether 
 this was the result of the compromise in Sturges v. Crown- 
 inshield, or in some other case, and, if so, how much was 
 saved because "the minority thought it better to yield 
 something than risk the whole," we have no means of 
 knowing. 
 
 We need not search far for Marshall's real reasons. He 
 feared the people and the States. He felt that there should
 
 410 DARTMOUTH COLLEGE CAUSES. 
 
 be a restraining power somewhere. He thought it would be 
 exercised with more safety and consideration by the court — 
 i.e., himself — than by any other department of the govern- 
 ment. He seized the elastic words of the obligation clause 
 and gave them the construction which he thought would 
 best accomplish that end.
 
 CHAPTER XYL 
 
 MAKSHALL'S OPINION IN TRUSTEES v. WOODWARD — ASSUMES 
 THE CHARTER TO BE A CONTRACT— RESUME OF THE 
 FACTS- HOW STATED BY MARSHALL — CHANGES THE 
 LANGUAGE OF THE PREAMBLE TO THE CHARTER — FUNDS 
 CONTRIBUTED TO MOOR'S SCHOOL, NOT THE COLLEGE — 
 LIMITS THE MEANING OF THE OBLIGATION CLAUSE — UN- 
 SATISFACTORY TEST — OWINGS v. SPEED, ABB CREASE v. 
 BABCOCK — OATH REQUIRED BY THE CHARTER — OATH 
 REQUIRED BY THE LEGISLATURE — THE LATTER A CONSTI- 
 TUTIONAL PUBLIC LAW — THE UNIVERSITIES — GRANGER 
 CASES — DISSENTING OPINIONS— BOSTON BEER COMPANY 
 V. MASSACHUSETTS — RECENT DECISIONS — PROGRESS OF 
 THE SUPREME COURT — TRUE PRINCIPLES, "IN THE END," 
 MUST GOVERN. 
 
 The opinion of the chief justice in Trustees v. Woodward 
 is very able. Less could not have been expected from such 
 a man, in such a cause, under such circumstances. He had 
 decided the case in March, 1818, and knew how nearly alone 
 he stood, for Judge Washington had restricted his reason- 
 ing so as to " prevent any implied decision by this court 
 of any other case than the one immediately before it." 
 He knew the views of the doubting as well as the recalci- 
 trant judges, and he had abundant leisure in which to adapt 
 his opinion to the exigencies of the case. To these con- 
 siderations we undoubtedly owe the fact that, in clearness 
 and massive strength, this opinion falls far short of those 
 given in Gibbons v. Ogden, Brown v. Maryland, McCul- 
 loch V. Maryland, Ogden v. Saunders, and other cases that 
 might be named. It is as remarkable for its omissions, for 
 the coloring with which he invested and the fog-bank in 
 which he enveloped the facts, as it is for the skill and subtle 
 
 (411)
 
 412 DARTMOUTH COLLEGE CAUSES. 
 
 force of statement which enabled him to transfer it to the 
 domain of abstract reasoning. 
 
 He opens the discussion with the following characteristic, 
 but remarkable statement. He says: "It can require no 
 argument to prove that the circumstances of this case con- 
 stitute a contract. An application is made to the crown for 
 a charter to incorporate a religious and literary institution. 
 In the application it is stated that large contributions have 
 been made for the object, which mil be conferred upon the 
 corporation as soon as it shall be created. The charter is 
 granted, and on its faith the property is conveyed. Surely, 
 in this transaction, every ingredient of a complete and 
 legitimate contract is to be found.'' 
 
 Few men admired Marshall as much as Wirt, who says : 
 " In a bad cause his art consisted in laying his premises so 
 remotely from the point directly in debate, or else in terms 
 so general and so specious, that the hearer, seeing no con- 
 sequence which could be drawn from them, was just as 
 willing to admit them as not." Nothing could be more 
 applicable than this to portions of the paragraph we have 
 quoted from the opini-on. 
 
 The vital question was not, as Judge Marshall has put it, 
 whether the charter was a ' ' contract " in a common-law 
 sense, or some other sense, but whether it was a contract in 
 a constitutional sense. 
 
 The chief justice had abundant opportunity for knowing 
 the most essential facts. His opinion as reported, as well 
 as that in Baptist Association v. Hart's Executors, and the 
 most essential part of another to which we have already 
 referred, was wrought out by him, at his leisure, during the 
 long vacation between March 14, 1818, and February 1, 
 1^19. He had before him, before his opinion was reported, 
 the special verdicts in these causes, and the stipulations 
 sent up with them ; he had heard all that was said by Web- 
 ster, Hopkinson, Holmes, and Wirt in the first case, and 
 had Webster's brief; he had heard the arguments of Wirt,
 
 TRUSTEES V. WOODWARD THE VITAL QUESTION. 413 
 
 Pinkiiey, and Webster in relation to the facts in the other 
 causes, upon the hitter's motion for a judgment nunc pro 
 tunc in Trustees v. Woodward, and had participated in the 
 informal conferences between court and counsel which fol- 
 lowed. 
 
 The proposition quoted is, in effect, that it was self-evi- 
 dent that the charter was a contract. Marsliall apparently 
 treats the remainder of the paragraph as conclusive evidence 
 of the truth of this proposition. If so, its terms, " so gen- 
 eral and so specious," could hardly have been better calcu- 
 lated to confuse and mislead. 
 
 The internal evidence afforded by the charter itself shows 
 that, though the substance may have been furnished by 
 Wheelock, its legal verbiage and framework were the work 
 of lawyers ; and, were it otherwise, history would bring us 
 to the same conclusion, for we know who did it. These 
 terms must be presumed to have been used in the sense in 
 which they were used by skilled lawyers of that day. 
 
 The paragraph quoted in relation to "an application," 
 etc., is manifestly an inference drawn by Marshall from the 
 recitals in the charter and the finding in the special verdict, 
 that the trustees accepted and assented to the letters-patent ; 
 that the College corporation was duly organized ; and that, 
 " immediately after its erection and organization as afore- 
 said, the said corporation had, took, acquired, and received, 
 by gift, donation, devise, and otherAvise, lands, goods, chat- 
 tels, and monies of great value," etc. 
 
 Marshall says "an application" was "made to the 
 crown, " reciting what he says " is stated " "in the applica- 
 tion." In this he follows Webster's brief, instead of the 
 language of the preamble in the charter itself. If at all, 
 this was true only in a specially narrow and exceptional 
 sense. No application was, in fact, made to the king ; nor 
 did he, in fact, grant the charter ; nor did he know of either ; 
 and the same is true of the Home Office. An application, 
 in its normal legal sense, is a petition in writing ; and we
 
 414 DARTMOUTH COLLEGE CAUSES. 
 
 are compelled to believe from the context that Marshall used 
 the term in this sense. 
 
 If, by a fiction of law, Governor Wentworth could be 
 treated as the crown, it is equally clear that no such '* appli- 
 cation " was made to him. 
 
 After Wheelock had ascertained, through Cleveland, 
 that the governor would grant the charter for the Indian 
 Charity-School, like a sensible man, he put his papers, etc., 
 into the hands of his legal advisers, and had them put in 
 form, not an " application " for a charter, l)ut a draught of 
 a charter itself. This draught, Avhich was placed by Whee- 
 lock in the hands of Governor Wentworth, neither was nor 
 assumed to be a charter of the College. Wentworth, under 
 the advice of his counsel, amended the charter in important 
 particulars, and, thus amended, he issued it under the great 
 seal of the province. 
 
 Webster and Marshall substituted for the word " repre- 
 sented," which is used in the preamble, the word " applica- 
 tion." No one can read the charter without appreciating 
 the marked difference in the meaning of these terms 
 
 Marshall says the application was " for a charter to incor- 
 porate a literary and religious institution." What " relig- 
 ious and literary institution ? ' ' Few would gather what the 
 truth was from the seemingly studied ambiguity of this 
 phrase. 
 
 The representation referred to is incorporated in the pre- 
 amble in these words : ' ' And the said Wheelock has further 
 represented a necessity of a legal incorporation in order to the 
 safety and well-being of said seminary, and its being capable 
 of the tenure and disposal of lands and bequests for the use 
 of the same." The representations set forth in the pre- 
 amble, and which precede the one we have quoted, remove 
 every possibility of doubt as to what was intended by the 
 term " seminary." They refer, with the utmost distinct- 
 ness, not to what, in fact, had no existence, but to Moor's 
 Indian Charity-School, which had existed for years. Mar-
 
 * ' APPLICATION ' ' AND ' ' REPRESENTATIONS . " 415 
 
 shall' s statement confounds the two, makes them one, and 
 treats them as identical. 
 
 We have shown — and might at far greater length — by 
 the whole course of proceedings before the granting of the 
 charter ; by the action of the trustees of the College at their 
 first meeting under it ; by the emphatic declarations and 
 the life-long conduct of the elder Wheelock in relation to the 
 separation of the funds, and otherwise ; by the early legisla- 
 tion in relation to Moor's Charity-School, which has gone 
 unquestioned to this day ; and by the conduct of the second 
 Wheelock and his successors until the charity-school virtu- 
 ally expired, that this attempted confounding of the two 
 was directly in the teeth of the plans, purposes, and inten- 
 tions, not only of those who procured the charter, but of 
 those to whom it was secured. 
 
 Marshall next says : "In the application it is stated that 
 large contributions have been made for the object, which will 
 be conferred on the corporation as soon as it shall be 
 created." 
 
 It is clear, though Webster had too much sagacity and 
 circumspection to put it in that peculiar form, that he here 
 again alludes to the representations referred to in the pre- 
 amble. 
 
 It is impossible to set forth in detail each gift, donation, 
 subscription, and grant, with the circumstances attending it, 
 and we shall not attempt it. An examination of the history 
 already given, and of the preamble, will be sufficient. 
 
 The representations in the preamble are : — 
 
 1. That Dr. Wheelock, on or about 1754, in Connecticut, 
 *' at his own expense, on his own estate and plantation, set 
 on foot an Indian Charity-School ; " that he, " for several 
 years, through the assistance of well-disposed persons in 
 America, clothed, maintained, and educated a number of the 
 children of the Indian natives, with a view to their carrying 
 the gospel in their own language, and spreading the knowl- 
 edge of the Great Redeemer, among their savage tribes, and
 
 416 DARTMOUTH COLLEGE CAUSES. 
 
 hath actually employed a number of them as missionaries and 
 
 school-masters in the wilderness for that purpose ; " " that 
 the design became reputable among the Indians, insomuch 
 that a laro;er number desired the education of their children 
 in said school, and were also disposed to receive missionaries 
 and school-masters in the wilderness, more than could be 
 supported by the charitable contributions in these American 
 colonies ; " that " Wheelock thought it expedient that en- 
 deavors should be used to raise contributions from well- 
 disposed persons in England for the carrying on and 
 extending said undertaking," and sent Whitaker and Occom 
 to England "for that purpose ; " that, to enable Whitaker 
 the more successfully to perform his work, Wheelock gave 
 him a full power of attorney, by which Whitaker solicited 
 the Earl of Dartmouth and eight other " contributors to the 
 charity" "to receive the several sums of money which 
 should be contributed to such charity, which they cheerfully 
 agreed to do ; " that these nine were duly appointed " trus- 
 tees of the money which had then been contributed, and 
 which should, by his means, be contributed for said pur- 
 pose ; " that the trustees had "accepted" this "trust" 
 "under their hands and seals," and that the same had 
 been duly " ratified by a deed of trust" duly executed by 
 Wheelock. 
 
 The purpose of Wheelock in this is perfectly obvious. 
 He desired to raise funds in Great Britain to build up his 
 school in Connecticut. He knew that he was unknown to the 
 mass of those who would naturally be disposed to favor his 
 design, and that they would be likely to contribute much 
 more freely if they knew that their funds were to be placed 
 in the hands of some of the most eminent men in the king- 
 dom as trustees, who would keep the expenditures within 
 the scope of the trust. Nine thousand four hundred and 
 ninety-four pounds, seven shillings, and seven and one- 
 half pence were thus raised in England, and placed in 
 the hands of these trustees. This, with the Scotch fund, —
 
 WHEELOCK's purpose FUNDS. 417 
 
 likewise a trust-fund, — made about £12,000. In those 
 days this was a large sum to be applied for such a pur- 
 pose in the primitive regions of the New World. Not a 
 penny of this sum was contributed for a college, or any 
 other purpose, in New Hampshire. Wheelock had bestowed 
 funds of his own upon his Connecticut school. He was 
 not the owner of this £12,000 in his own right. At best, 
 he was not the owner in any sense, other than any trus- 
 tee is the owner of trust-funds conveyed to him by a trust- 
 deed for a specified purpose. The English funds were col- 
 lected and paid into the hands of these trustees, and held by 
 them under a deed of trust. This was confirmed by 
 Wheelock by his deed. These funds could in no sense be con- 
 sidered the funds of Wheelock ; and the same is, in general, 
 true of the Scotch fund. The trustees had no authority to 
 expend these funds in building a college in New Hampshire ; 
 and their agent, Dr. Wheelock, had less, if such a thing is 
 possible. The stream could not rise higher than the foun- 
 tain. But, as we have seen, the trustees were opposed to 
 an incorporation of the School even ; they knew nothing 
 about the incorporation of the College ; they were not con- 
 sulted about it ; it was done behind their backs ; and when 
 they ascertained the fact, they were exceedingly indignant 
 about it, and regarded it as an attempt to pervert the trust 
 and annihilate their powers. 
 
 To do Wheelock justice, he did not claim that these funds 
 could be used for College purposes ; he conceded that they 
 could not . He erected the first buildings with Charity-School 
 funds, etc. ; but he justified this expenditure distinctly upon 
 the ground that it was made, not for the College, but for 
 the Charity-School, for which the funds were contributed. 
 
 Assuming that he understood the facts, the implication 
 
 from Marshall's statement would seem to be that the "rov- 
 es 
 
 ernor of thepro\'ince, upon whom the crown had never (con- 
 ferred the power to create such a corporation, had the lawful 
 authority to take from the trustees in the mother country,
 
 418 DARTMOUTH COLLEGE CAUSES. 
 
 "wathout their consent and against their will, the funds com- 
 mitted to their keeping, and thereon lay the foundation of 
 another institution, which none of the donors had in mind 
 when they made their contributions, and that such taking 
 was protected by the obligation clause. There is no such 
 1>lemish from Wheelock's standpoint that the School and 
 College were distinct. 
 
 It is sufficiently ob\'ious that these contributions were not 
 made " for the object" of establishing Dartmouth College, 
 or that these funds were to " be conferred ' ' on that ' ' corpo- 
 ration as soon as it shall be created." 
 
 2. That Wheelock had " given full power to said trustees 
 to fix upon and determine the place of said school most sub- 
 servient to the great end in view ; and, to enable them 
 understandingly to give the preference, the said Wheelock 
 has laid before the said trustees the several offers which 
 have been generously 'made in the several governments in 
 America, to encourage and invite the settlement of said 
 school a7nong (hem for their own private Emolument and the 
 increase of learning in their respective places, as well as for 
 the furtherance of the general design in view ; " " that a large 
 number of the proprietors of lands in the western part of 
 this our Province of New Hampshire, animated and excited 
 thereto by the generous example of his Excellency, their 
 Governor, and by the liberal contributions of many noble- 
 men and gentlemen in England, and especially by the con- 
 sideration that such a situation would be as convenient as 
 any for carrying on the great design among the Indians ; 
 and also considering that, without the least impediment to 
 the said design, the same school may be enlarged and 
 improved to promote learning among the English, and be a 
 means to supply a great number of churches and congrega- 
 tions, which are likely soon to be formed in that new coun- 
 try, with a learned and orthodox ministry, they, the said 
 proprietors, have promised large tracts of land for the uses 
 aforesaid, provided the school shall be settled in the western
 
 REPRESENTATIONS REFER TO SCHOOL, NOT COLLEGE. 419 
 
 part of our said Province;" that the trustees had "given 
 the preference to the western part of our said Province, 
 lying on the Connecticut river, as a situation most conven- 
 ient for said school." Then follow tlie representations in 
 relation to a charter, which we have already quoted. The 
 preamble then sets forth that Wheelock had represented 
 that, in the infancy of the institution, the gentlemen nomi- 
 nated by him in his last will as ' ' trustees in America should 
 be of the corporation now proposed ; " " that also, as there 
 are already large collections for said school in the hands of 
 the aforesaid gentlemen of the trust in England," etc., 
 " said Wheelock desires that the trustees aforesaid may be 
 vested with all that power therein which can consist Avith 
 their distance from the same." 
 
 Few things are clearer than that all this refers to the 
 Charity-School and the trust funds collected for it. 
 
 This is made almost self-evident from the fact that the 
 preamble to the charter and the preamble to the Wheelock 
 draft are precisely alike, with the exception of a dozen 
 verbal changes which in nowise affect the sense. This 
 draft was incontestably framed months before any sugges- 
 tion was made, even in the postscript of a letter, that 
 Wheelock, or those he represented, desired a charter for a 
 college, or that the Indian Charity-School or its funds should 
 be swallowed up in it. 
 
 We have already adverted to the pointed terms in which 
 a variety of donations and conveyances, as well as the 
 subscriptions of 1755, were made to the School, not to the 
 College. 
 
 Marshall says : " The charter is granted, and on its faith 
 the property is conveyed." A few pages further on, he 
 says : * ' From this brief review of the most essential parts 
 of the charter it is apparent that the funds of the College 
 consisted entirely of private donations. It is, perhaps, not 
 very important who were the donors. The prolial)ility is 
 that the Earl of Dartmouth and the other trustees in Eng- 
 land were, in fact, the largest contributors. * * *
 
 4:20 DARTMOUTH COLLEGE CAUSES. 
 
 *' It is not too much to say, that the funds were obtained 
 by him, in trust, to be applied by him to the purposes of 
 his enhiro-ed school." 
 
 The fact was, that when the charter was granted, and for 
 months afterwards, the College had no funds whatever, 
 aside from the Landaff grant, and not a penny had been 
 pledged to it, so far as appears. The Charity-School, at this 
 time, was an existing institution. About $60,000 had been 
 raised in the mother country for it, besides several thousand 
 dollars in this country, and, besides, the Landaff grant of 
 twenty-four thousand acres, which had been pledged, not to 
 the College, but to the School, and without which the one 
 would never have been removed to New Hampshire, or the 
 other created. The Earl of Dartmouth and the trustees 
 contributed nothing to the College, but to the School. 
 
 The only inference to be drawn from the language of the 
 chief justice is, that the crown promised to grant a charter, 
 not for the Charity-School, but for the College, and that 
 upon the faith of this promise all the ' ' funds ' ' to which 
 we have referred were raised for the College, and were 
 given and conveyed to it as soon as it was chartered. 
 
 This subtle statement evades the question of royal founda- 
 tion, on the one hand, as Story's definition of a public cor- 
 poration did upon the other. As we have already seen. 
 Governor Wentworth made the promise of the Landaff 
 grant at the same time he promised to grant the charter. 
 The promise was in terms made " to the use of the School," 
 and the School was to have " the quit-rents " " free." 
 
 The first donations given to the School had been eaten up 
 years before the project of any foundation in New Hamp- 
 shire had been thought of, while the Landaff grant was 
 undoubtedly the first conveyance to the College. 
 
 If the date of this conveyance is to be disregarded, and 
 the " promise " is to be relied on for the purpose of fixing 
 the "foundation," it does not change the result whether 
 the conveyance to the College was a breach of the promise 
 and a perversion of the donative trust, or otherwise ; for
 
 riarshall's "statement" and the fact. 421 
 
 this " promise " was made in 1768, at the same time as the 
 promise for a charter for Moor's School, was indissolubly 
 linked therewith, and was not only the first in the province, 
 but the pivot promise which brought the institution here. 
 
 If the promise made by the governor is to be treated as 
 made by the crown, it would bo a royal foundation, and 
 Marshall concedes, in his opinion, that the Revolution put 
 the State in the place of the crown and Parliament ; and 
 this would make the State the visitor, as suggested by 
 Mason. 
 
 Whether the distinctive character and legal efficacy of a 
 royal grant can be drowned out because other gifts were made 
 by individuals, and the grant itself transformed thereby into 
 " private donations," is at least questionable. 
 
 This fundamental error embraced in Marshall's statement 
 is repeated in a great variety of forms, and pervades the 
 entire opinion. As we have already shown, this proposi- 
 tion is contrary to the facts, and unwarranted by the find- 
 ings in the special verdict. 
 
 The conjecture in relation to the Earl of Dartmouth is 
 but little nearer the truth than this opinion, based upon the 
 assumption. "Whether we say, with Webster, that "the 
 recitals in the charter were conclusive," or, with Story, that 
 there is not the " least contradiction " between the " new 
 facts and the recitals," we arrive at the same conclusion, — 
 that these " funds " were the funds of the School, and not 
 of the College. 
 
 Upon his assumption — having decided in less than two 
 lines, without reference to any authority whatever, that this 
 charter was a contract — he concedes, in the next para- 
 graph, that the question before the court was, not whether 
 it was a contract, but whether it was a contract in a consti- 
 tutional sense. 
 
 We have already noted some of the changes in the drift 
 since the opinion in Fletcher v. Peck. In that case, Mar- 
 shall based the vital portion of his argument in relation to
 
 422 DARTMOUTH COLLEGE CAUSES. 
 
 contracts upon the definition of a grant quoted from Black- 
 stone. In his opinion in the College case he makes no 
 allusion to that or any other definition or authority upon 
 that point. Indeed, he does not assume to base it upon 
 authority. He simply refers twice to Blackstone upon a 
 point not decided, and, in summing up on another point, 
 says : " This opinion appears to us to be equally supported 
 by reason and by the former decisions of this court." 
 
 In Fletcher v. Peck, Marshall put his decision, so far 
 as the obligation clause is concerned, upon the ground 
 that it covered both executory and executed contracts, 
 because " they [the words] are general, and are applicable 
 to contracts of every description." 
 
 In Ogden v. Saunders, Webster simply reechoes this 
 when he says : " The words are general. The States can 
 pass no law impairing contracts, — that is, any contract." 
 
 The chief justice was not allowed to forget this, for Mr. 
 Hopkinson, in his argument, said : " Then it is said this is 
 not such a contract as is intended in the Constitution. 
 Why not f The Constitution speaks of contracts generally. 
 No discrimination or limitation. Who then shall make 
 one?" — and cited as authority, Fletcher v. Peck. But 
 Marshall, in Trustees v. Woodward, found it necessary to 
 disregard this argument, and the authority of his own opin- 
 ion, to impose important " limitations " upon this doctrine, 
 and to concede that there were many contracts not pro- 
 tected by the Constitution. 
 
 We have seen that the author of the obligation clause 
 regarded all our constitutions and laws as contracts, in a 
 general sense. 
 
 On account of his location, Hopkinson was familiar with 
 Wilson's Works, if the court were not, and in his argu- 
 ment cited them as authority to this point. 
 
 If they were contracts in a constitutional sense, no law 
 or Constitution could be altered or amended unless that 
 power was reserved therein. Webster, in one of his most
 
 "CON'TKACt" in FLETCHER V. PECK. 423 
 
 important arguments, brought Marshall and his court face 
 to face with the fact that none of the constitutions of the 
 original thirteen States, .save that of New Hampshire, con- 
 tained any provisions for their amendment. 
 
 To avoid the effect of this argument, Marshall, in Trustees 
 V. Woodward, says : " On the first point it has been argued 
 that the word ' contract,' in its broadest sense, would com- 
 prehend the political relations between the government and 
 its citizens ; would extend to offices held within a State for 
 State purposes, and to many of those laws concerning civil 
 institutions which must change with circumstances, and be 
 modified by ordinary legislation, which deeply concern the 
 publick, and which, to preserve good government, the pub- 
 lick judgment must controul. That even marriage is a con- 
 tract, and its obligations are affected by the laws respecting 
 divorces. That the clause in the Constitution, if construed 
 in its greatest latitude, would prohibit these laws. Taken 
 in its broad, unlimited sense, the clause would be an unprofit- 
 able and vexatious interference with the internal concerns 
 of a State ; would unnecessarily and unwisely embarrass its 
 legislation, and render immutable those civil institutions 
 which are established for purposes of internal government, 
 and which, to subserve those purposes, ought to vary with 
 varying circumstances. That as the framers of the Consti- 
 tution could never have intended to insert in that instrument 
 a provision so unnecessary, so mischievous, and so repug- 
 nant to its general spirit, the term ' contract ' must be under- 
 stood in a more limited sense. That it must be understood 
 as intended to guard against a power of at least doubtful 
 utility, the abuse of which had been extensively felt, and to 
 restrain the legislature in future from violatingf the rio-ht to 
 property. That anterior to the formation of the Constitu- 
 tion a course of legislation had prevailed in many, if not in 
 all, of the States, which weakened the confidence of man in 
 man, and embarrassed all transactions between individuals, 
 by dispensing with a faithful performance of engagements. 
 To correct this mischief, I)}' restraining the power which
 
 424 DARTMOUTH COLLEGE CAUSES. 
 
 produced it, the State legislatures were forbidden ' to pass 
 any law impairing the obligation of contracts,' — that is, of 
 contracts respecting property, under which some individual 
 could claim a right to something beneficial to himself ; and 
 that since the clause in the Constitution must, in construction, 
 receive some limitation, it maybe confined, and ought to be 
 confined, to cases of this description ; to cases within the 
 mischief it was intended to remedy. 
 
 ** The general correctness of these observations cannot be 
 controverted. That the framers of the Constitution did not 
 intend to restrain the States in the regulation of their civil 
 institutions, adopted for internal government, and that the 
 instrument they have given us is not to be so construed, may 
 be admitted. The pro^dsion of the Constitution never has 
 been understood to embrace other contracts than those which 
 respect property, or some object of value, and confer rights 
 which may he asserted in a court of justice. It never has been 
 understood to restrict the general right of the legislature 
 to legislate on the subject of divorces." 
 
 The short of all this is, that the term " contracts " is used 
 in the Constitution, not in a general, but in a limited sense ; 
 that that instrument is to be read as though the word^ecw- 
 niary, or some essentially equivalent word or phrase, was 
 written in before the word "contracts." And Ogden v. 
 Saunders substantially incorporates the word retrospective 
 before the word " law " in the obligation clause. 
 
 The term " contracts," in its normal sense, refers to 
 executory contracts. We have already referred, at length, to 
 Dr. Hammond's edition of Sandars's Justinian, and other 
 authorities, on this point ; and have also quoted the state- 
 ment of Mr. Austin (which was, in effect, the opinion of 
 Judge Johnson in Fletcher v. Peck), that "where a so- 
 called contract passes an estate, * * * it is to that 
 extent not a contract, but a conveyance, though it may be a 
 contract to some other extent, and considered from some 
 other aspect." 
 
 No matter what the chief justice might think about it.
 
 OBLIGATION OF CONTRACTS AMERICAN DOCTRINE. 425 
 
 the true and unmistakable American doctrine is, that the 
 respective States did not take their powers, by inheritance 
 or otherwise, from the crown or Parliament, but from the 
 people. The States have such powers, and such only, as the 
 people by their respective State Constitutions have given 
 them. The Supreme Court, in Lane County v. Oregon (7 
 Wall. 76), and Texas v. White (7 Wall. 700), have decided, 
 ' as the foundation idea of this government,' that ' ' the Consti- 
 tution, in all its provisions, looks to an indestructible union 
 composed of indestructible States ; " and that " without the 
 States in union there could be no such political body as the 
 United States." If so, how can a State constitutionally snuff 
 out both its own existence and that of the United States by 
 bartering away, by legislative enactments, sovereign powers, 
 which are indispensable to existence ? 
 
 There were abundant reasons why the prohibition should 
 be levelled at the interference with executory contracts. 
 Marshall limits the clause to contracts which respect prop- 
 erty. Looking at the matter from the standpoint which he 
 undoubtedly occupied in Fletcher v. Peck, and following his 
 own reasoning in relation to executory and executed con- 
 tracts, why should he? Marriage is a contract. At com- 
 mon law, like other contracts, it could not exist without the 
 consent of the parties. A valid marriage merges the prom- 
 ise to marry in the contract. Marriage embraces both an 
 executed and an executory contract, — one party proposes, 
 and the other accepts. When consummated, it is an executed 
 contract. The parties have become man and wife. The 
 ' ' implied ' ' continuing contract is that they are to live 
 together in that relation, in conformity to all the laws of the 
 land which may be thereafter enacted. To this extent like 
 that invented by Marshall, it is purely an executory con- 
 tract. If one party breaks this executory contract, the 
 courts can release the other party. The legislature cannot 
 authorize divorce for a past act. Marriage is not a matter 
 of mere civil institution. It might as well be said tliat a
 
 426 DARTMOUTH COLLEGE CAUSES. 
 
 conveyance, or that the mass of commercial transactions 
 are matters of civil institution. 
 
 Marriage is a contract, subject to such prospective legisla- 
 tion as may provide what subsequent breaches of the execu- 
 tory contract shall be sufficient grounds for discharging the 
 parties from its obligation ; but this is for special reasons of 
 State policy touching the great interests of society, in main- 
 taining the power of regulating the terms upon which so 
 peculiar and important a contract may be rescinded or 
 annulled. 
 
 It seems to us, from the debates in the Convention, the 
 views of Judge Wilson, and those of other eminent authori- 
 ties to which we have referred, that the framers of the Con- 
 stitution had in mind the meaning given by the civil law 
 when they adopted the provision. An interpretation which 
 would restrict the provision to executory contracts would 
 be much more natural and reasonable than the other. A 
 comparison of the passages quoted with those from Story, 
 to which we have already adverted, shows how Marshall 
 shrank from the logical consequences of his position and 
 reasoning. 
 
 Prior to the adoption of the Constitution of 1784, in New 
 Hampshire, decrees for divorce, etc., had always been 
 granted by the Legislature. That Constitution provided 
 that *' ALL causes of marriage, divorce, and alimony, and all 
 appeals from the respective judges of probate, shall be 
 heard and tried by the Superior Court, until the Legislature 
 shall, by law, make other provision." 
 
 The natural inference would seem to be that such decrees, 
 taking into consideration the then existing law as to prop- 
 erty rights of men and their wives, might affect " contracts " 
 *' which respect property, or some object of value," etc. 
 
 Marshall further says : " The case being within the words 
 of the rule, must be within its operation likewise, unless 
 there be something in the literal construction so obviously 
 absurd, or mischievous, or repugnant to the general spirit
 
 EFFECT OF MARSHALL'S " CANON." 427 
 
 of the instrument, as to justify those who expound the Con- 
 stitution in making it an exception." Placing these pas- 
 sages beside those ah'eady quoted, but one construction can 
 be put upon them. His canon of constitutional interpreta- 
 tion was, that the term " contracts " was used in a limited 
 and not in a general sense ; but, presumptively, was used 
 in a general and not in a limited sense until the contrary 
 was shown " beyond a doubt." 
 
 We have already commented on his practical test, that 
 those who claim that a given case does not come within the 
 limited sense of the term must show that, if such case had 
 been brought to the attention of the fathers, they would have 
 " varied " " the language " " so " " as to exclude it, or it 
 would have been made a special exception." How is it pos- 
 sible to show such an exception, or, indeed, any other, when 
 the Supreme Court itself concedes that the point raised in 
 this case had never occurred to any human being when the 
 Constitution was adopted? A grave question of constitu- 
 tional law reduced to a question of fact, and that decided 
 upon conjecture ! 
 
 One year after the decision in Trustees v. Woodward, 
 Marshall delivered the opinion of the court in O wings v. 
 Speed (5 Wheat. 420). The case was simple enough. In 
 1785, Virginia issued a patent to Bard and Owings for one 
 thousand acres of land in Bardstown. In 1788, the Leffisla- 
 ture of Virginia passed an act vesting one hundred acres ot 
 this tract " in trustees, to be laid off in lots, some of them 
 to be given to settlers, and others to be sold for the benefit of 
 the proprietors." This suit was brought in the Circuit 
 Court of the United States, as was Fletcher v. Peck, and 
 three of the College causes, and involved, as Marshall 
 claimed, in one form, the same question as Trustees v. Wood- 
 ward. That question was, whether the act impaired the obli- 
 gation of contracts. It was held that it did not. 
 
 Marshall, in Trustees v. Woodward, says : "According to 
 the theory of the British Constitution, their Parliament is
 
 428 DARTMOUTH COLLEGE CAUSES. 
 
 omnipotent. To annul corporate rights might give a shock 
 to publick opinion, which that government has chosen to 
 avoid ; but its power is not questioned. Had Parliament 
 immediately after the emanation of this charter, and the 
 execution of those conveyances which followed it, annulled 
 the instrument, so that the living donors would have wit- 
 nessed the disappointment of their hopes, the perfidy of the 
 transaction would have been universally acknowledged. Yet 
 then, as now, the donors would have had no interest in the 
 property ; then, as now, those who might be students would 
 have had no rights to be violated ; then, as now, it might be 
 said that the trustees, in whom the rights of all were com- 
 bined, possessed no private, individual, beneficial interest in 
 the property confided to their protection. Yet the contract 
 would at that time have been deemed sacred by all. What 
 has since occurred to strip it of its inviolability ? Circum- 
 stances have not changed it. In reason, in justice, and in 
 law it is now what it was in 1769. * * * 
 
 *' By the Revolution, the duties, as well as the powers, of 
 government devolved on the people of New Hampshire, It 
 is admitted that among the latter tvas comprehended the trans- 
 cendant power of Parliament, as ivell as that of the executive 
 departvfient. It is too clear to require the support of argument 
 that all contracts and rights respecting property remained un- 
 changed by the Revolution. The obligations, then, which were 
 createdby the charter of Dartmouth College, were the same in 
 the new that they had been in the old government. The power 
 of the government was also the satne. A repeal of this char- 
 ter at any time prior to the adoption of the present Consti- 
 tution of the United States would have been an extraordinary 
 and unprecedented act of power, but one which could have 
 been contested only by the restrictions upon the Legislature 
 to be found in the Constitution of the State. But the Con- 
 stitution of the United States has imposed this additional 
 limitation : that the legislature of a State shall pass no act 
 ' impairing the obligation of contracts . ' "
 
 FLETCHER V. PECK AND OWINGS V. SPEED. 429 
 
 It is clear, from this, that at some time after the Revolu- 
 tion the Legislature of New Hampshire had the power to 
 pass the acts in question or to annul this charter. When and 
 how was it lost? 
 
 "Whether or not Marshall, with the rest of the people of 
 Virginia, lived for more than, half a century under a Consti- 
 tution which discarded what he, in Fletcher v. Peck, termed 
 the " general principles which are common to our free insti- 
 tutions," we have no occasion to inquire. If this act was 
 the exercise of a "judicial " power, the decision in Owings 
 V. Speed cannot be reconciled with the reasoning in Fletcher 
 V. Peck. 
 
 We are not aware of any difference in the moral quality 
 of robbing a man of his real estate, whether done by the 
 Virginia or any other Legislature. The act the constitu- 
 tionality of which was in question in Owings v. Speed took 
 the land of A. from him and vested it in B. The acts of the 
 Legislature of New Hampshire, the constitutionality of 
 which was brought in review in Trustees v. Woodward, 
 ousted no trustee, and took away none of their property. 
 They were left as they stood before, but others were added 
 to their number. We are unable to see any greater " per- 
 fidy " in this act than there was in the act of the Virginia 
 Legislature, which despoiled the owners of their real estate, 
 and of all right, title, and interest therein. 
 
 Precisely what is meant by the passages last quoted from 
 Marshall's opinion in Trustees v. Woodward, taken together, 
 is not in all respects clear. Some of the propositions, it 
 seems to us, are in flat contradiction of each other. Appar- 
 ently, they can only be reconciled upon the assumption that 
 Marshall intended to adopt in fact, while avoiding it in name, 
 the first proposition of Mason at Exeter, — afterwards en- 
 forced by Webster at Washington, — that, laying the State 
 and Federal Constitutions out of the case, the acts in ques- 
 tion were void because judicial, and not legislative, in their 
 nature. If this were so, we are unable to see how a reser-
 
 430 DARTMOUTH COLLEGE CAUSES. 
 
 vation in a charter, that it might be altered, amended, or 
 repealed at pleasure, could change the nature of the power, 
 transform what was in essence judicial into that which was 
 legislative, and thereby, in effect, confer upon Congress and 
 the State Legislatures judicial powers which the respective 
 Constitutions have denied to them. 
 
 In Crease v. Babcock (23 Pick. 334), the Supreme Court 
 of Massachusetts held that " a reservation by the Legisla- 
 ture of the right to repeal an act of incorporation for a 
 violation of the charter, or other default, is not unconsti- 
 tutional on the ground of being a reservation of judicial 
 powers." 
 
 The distinction suggested is not warranted by any of the 
 later decisions of the Supreme Court, ending with the so- 
 called Granger cases. 
 
 In the turn-table Legal Tender cases (Hepburn v. Gris- 
 wold, 8 Wall. 603 ; Legal Tender cases, 12 Wall. 457), the 
 majority of the Federal Supreme Court first held that Con- 
 gress had no general power, under the Constitution, to pass 
 a law "impairing the obligation of contracts;" but after- 
 wards, the minority, now transformed into a majority, held 
 that Congress had the power. It seems never to have 
 occurred to any of the judges that this power was judicial, 
 and not legislative ; and the same is true of the subsequent 
 decisions upon the effect of the reservation clause. 
 
 The superstructure falls with the foundation. Wherever 
 the power exists, — and the principle is the same whether 
 the reservation is written in or implied, — the exercise of 
 that power is everywhere deemed an act of legislation. 
 
 If we assume that a charter is not a contract, the power 
 to alter, amend, or repeal — it being legislative — must, 
 as a fundamental principle of British law, be deemed, by 
 implication, to exist in every charter. This charter, then, 
 in legal effect, was precisely what it would have been had 
 the reservation clause been written in. If the charter was 
 a contract, the same result follows from the principles
 
 PARLIAMENT AND THE CHARTER. 431 
 
 underlying the decision in Ogden v. Saunders. Parliament, 
 then, as an act of legislation, had the power to alter, amend, 
 or repeal the charter at pleasure, and the people of New 
 Hampshire had the same right after the Revolution, unless 
 they had divested themselves of that power by the State or 
 Federal Constitution. The decision of the State court was 
 conclusive in this action that the State Constitution had no 
 such effect. The only remaining question, then, was whether 
 the Federal Constitution, by the obligation clause, had 
 blotted out this integral part of the charter or contract. 
 
 If, as Marshall says, the charter was a contract, and 
 " circumstances have not changed it," and, " in reason, in 
 justice, and in law, it is now what it was in 1769," it is 
 simply impossible that the Federal Constitution should 
 annul such an important provision in the contract. 
 
 It would, indeed, be singular if a provision of the Consti- 
 tution, adopted for the very purpose of preventing interfer- 
 ence with contracts, should subvert the purpose of its 
 originators by striking out, in effect, a vital part of them. 
 
 Those who believe that charters are not contracts in the 
 sense of the Constitution, or that the purpose of its framers 
 was inconsistent with the retention of the reserved power, 
 look at the question from a different standpoint. A pointed 
 illustration of the latter view may be found in the effect of 
 the adoption of the Constitution on the following provision 
 of the charter : "And we do further will, ordain, and direct 
 that the President, Trustees, Professors, Tutors, and all such 
 officers as shall be appointed, for the public instruction and 
 government of said college, shall, before they undertake the 
 execution of their offices or trusts, or within one year after, 
 take the oaths and subscribe the declaration provided by an 
 act of Parliament, made in the first year of King George 
 the First, entitled 'An act for the further security of his 
 Majesty's person and government, and the succession of 
 the crown in the heirs of the late Princess Sophia, being 
 protestants, and for the extinguishing the hopes of the pre-
 
 432 DARTMOUTH COLLEGE CAUSES. 
 
 tended Prince of Wales, and his open and secret abettors,' — 
 that is to say, the President before the Governor of our 
 said Province for the time being, or by one by him empow- 
 ered to that service, or by the President of our said Council, 
 and the Trustees, Professors, Tutors, and other officers, 
 before the President of said College for the time being, 
 who is hereby empowered to administer the same ; an entry 
 of all which shall be made in the records of said College " 
 The Legislature of New Hampshire, by the act of June 
 27, 1816, — one of the acts complained of, — attempted to 
 abroijate this oath of alleofiance to the British king and to 
 
 o o o 
 
 substitute another for it. The seventh section of that act 
 provided, " that the president and professors of the Univer- 
 sity, before entering upon the duties of their offices, shall 
 take the oath to support the Constitution of the United 
 States and of this State, certificates of which shall be filed in 
 the office of the secretary of this State within sixty days 
 from their entering on their offices respectively." 
 
 This, we have seen, in the mother country, was a public 
 law which the courts were bound to enforce, and which was 
 nowhere deemed any infringement upon the rights, powers, 
 and privileges of such corporations. Why should it not be 
 so here? Why should Dartmouth College be more pri- 
 vate, have more rights, than any so-called private elee- 
 mosynary corporation in Great Britain? 
 
 This is one of the acts set aside by Marshall in this case, 
 as unconstitutional. 
 
 The chief justice, in his opinion, makes no allusion to the 
 oath of allegiance required by the charter, though the broad 
 terms used by him would seem to cover it. If the charter 
 was in 1816-19 precisely what it was in 1769, "inlaw," 
 the officers were still bound to take the oath of allegiance 
 to the British crown. It is hardly possible, however, that 
 Marshall could have meant this. The oath required was 
 inconsistent with the Constitution, and, therefore, by impli- 
 cation, was annulled by it.
 
 EFFECT OF ADOPTION OF CONSTITUTION ON CHARTER. 433 
 
 Did the power to alter, amend, and repeal occupy essen- 
 tially the same position ? And was that also annulled ? 
 
 Marshall lays some stress upon the term " forever," etc. 
 These are merely formal words, like those common alike 
 in all instruments of this character, both where the power 
 is expressly reserved and where it is not. It might as well 
 be argued that the words, " of our special grace," " mere 
 motion," etc., made the grant a " gratuity," and thus put 
 it beyond the protection of the obligation clause. They 
 can no more annul the power where it is a part of the con- 
 tract or charter by implication, than where it is expressed. 
 
 We have previously shown that the distinction between 
 public and private corporations, in the sense in which those 
 terms were used by Story and his compeers, was unknown 
 before the decision in Trustees v. Woodward. 
 
 Unless we are to look, contrary to the view of Marshall 
 in Craig v. Missouri, at "names, not things," this was a 
 university. The governor who granted the charter so 
 regarded it, and proposed, of his own accord, to hedge it 
 about with the jurisdiction of universities in England with 
 which he was acquainted. Dr. Wheelock, the founder of 
 the school and the master-spirit of the whole undertaking, 
 so regarded it, and acted in accordance with that view until 
 his death. The trustees, who were the corporation, acted 
 upon this understanding almost down to the time when the 
 controversy broke out. They voted to establish professor- 
 ships, examined students, and conferred upon them degrees 
 as officers of the University, and in a variety of ways held 
 the institution out to the world as such. To-day it em- 
 braces in its fold the agricultural and medical colleges, and 
 the academic, scientific, and civil-engineering departments, 
 which are, in fact, colleges, simply bearing a "new name 
 for an old thing." 
 
 Even the charter itself, in a variety of forms, uses the 
 universities in the mother country as the measure or standard 
 of the " power and authority " conferred by it. It puts the 
 
 28
 
 434 DARTMOUTH COLLEGE CAUSES. 
 
 " degrees " on the same footing " as are usually granted in 
 either of the universities or any other college in our realm 
 of Great Britain . ' ' When the charter speaks of ' ' either 
 of the universities," it refers directly to the Universities 
 of Cambridge and Oxford. Of this there is no doubt. 
 
 Moor's Indian Charity-School had " alms, free bounty, to 
 be distributed," and so have some, and perhaps all, of these 
 colleges ; but the University, as such, none. 'Judge Smith, 
 in his argument, conceded that, if a university, it vras " upon 
 the principles of the common law a civil, and not an ' elee- 
 mosynary, corporation.' * * * 
 
 " But there is another division, proper to be stated at 
 greater length, I mean of civil and eleemosynary corpora- 
 tions. We have both sorts. Our civil corporations are 
 created for government, and for ' the carrying on of divers 
 special purposes.' Our counties, towns, parishes, school- 
 districts, &c., are civil corporations for government, and our 
 banking, insurance and turnpike companies are civil corpora- 
 tions for particular purposes — in no way connected with 
 charity. In England the general corporate bodies of the 
 Universities of Oxford and Cambridge fall under the head of 
 civil corporations ; because merely for government ; not for 
 dispensing alms, but for governing the particular colleges 
 lohich dispense them." Even President Brown, who had 
 lived for years in the atmosphere of these great lawyers, 
 and absorbed their views of the legal phases of the case as 
 a sponge does water, says this was the " great point of the 
 defence," "the latter [colleges] being admitted to be 
 charities, and the former [universities] not, but designed for 
 the purposes of regulation, government, &c." He ques- 
 tioned the fact, but not that the law followed the fact. If 
 the corporation was a university, why could not the State 
 provide for its " regulation, government, &c." 
 
 Marshall makes no allusion to these provisions in relation 
 to the universities. There were obvious reasons for this 
 omission. Each of the universities was little else than a
 
 CHARTEE AND UNIVERSITY GRANGER CASES. 435 
 
 plexus of political privileges, — an empire within an em- 
 pire, — including the right to seats in Parliament. If they 
 were not " public corporations," if such things existed, it 
 was next to impossible to find them. The attempt to do so 
 might have taxed even the marvellous inventive genius of 
 Marshall till the strain stranded its thews. 
 
 The Granger cases mark an era in the judicial history of 
 the Union. 
 
 The precise points actually decided in these cases are of 
 little importance, as compared with the significance of the 
 reasoning on which they rest, and the consequences which 
 must flow from them in the future. 
 
 They show that the domination of the East in the Supreme 
 Court, as well as in other dei)artments of the government, 
 has become a matter of history, and that the great West and 
 South-west hold the future destinies of the country. East 
 ern people are proverbially slow about some things. They 
 learn slowly what they do not wish to know. Any other 
 people would have appreciated at once the significance of 
 late decisions of the Supreme Court, in a class of municipal- 
 bond tax cases, to the eflect that the judgments of the whole 
 retinue of Federal courts, with the Supreme Court at their 
 head, in causes in Avhich they had jurisdiction, were not 
 binding, but merely advisory to a meeting of municipal 
 voters, and that the last was practically the tribunal o^ dernier 
 ressort. 
 
 If the Supreme Court erred in the Granger cases, they 
 did so having all the light that could be thrown upon the 
 subject by the ablest men in the profession, for before them 
 were the opinions and arguments of Benjamin R. Curtis, 
 William M. Evarts, E. Eockwood Hoar, Matt. H. Carpenter, 
 Judge Lawrence, Judge Dixon, the Sloans, Mr. Cook, Mr. 
 Stoughton, Mr. Carey, Judge Ryan, and others. 
 
 In these cases. Chief Justice Waite, speaking for the 
 majority of the court, nominally recognizes the authority of 
 Trustees v. Woodward. Chief Justice Taney tacitly did the
 
 4«36 DARTMOUTH COLLEGE CAUSES. 
 
 same in Charles River Bridge v. Warren Bridge ; but no 
 lawyer ever doubted that Justice Grier — speaking for him- 
 self, Mr. Justice Field, and Chief Justice Chase — reaffirmed 
 the opinion of Taney, when he said, in his opinion in the 
 Binghampton Bridge case: "But, assuming a power for 
 one legislature to restrain the power of future legislatures, 
 those who assert that it has been exercised should prove 
 their^ assertion heyond a doubt. Such intention must be 
 clearly expressed in the letter of the statute, and not left 
 to be discovered by astute construction and inferences. 
 Although an act of incorporation may be called a contract, 
 the rules of construction applied to it are admitted to he the 
 reverse of those applied to other contracts." 
 
 The opinion of Taney in the Bridge case was, as Story 
 felt, a great departure from the principles underlying the 
 opinion of Marshall in Fletcher v. Peck and in the College 
 case. But the opinions in the Granger cases (94 U. S. 
 113-187) are in eflect a far greater one. No considerate 
 man can believe for a moment that such decisions could 
 have been rendered by Judge Marshall's court after the 
 decision in the College case. It is simply impossible to 
 reconcile the two, unless the decision in Trustees v. Wood- 
 ward is to be limited to " eleemosynary corporations," — 
 a distinction ignored by all the cases. 
 
 Some of the opinions of the present chief justice are brief, 
 terse, and compact in fibre, while others are diffuse and discur- 
 sive, but marked with originality. The originality of the use 
 made by him of the sayings of Lord Hale and others, though 
 reminding one of a speech of Colonel Barre, is worthy 
 the genius of Marshall in his best estate. That the " use 
 was public" was conceded by the counsel for the plain- 
 tiffs, in a variety of forms, in the College case. Mr. Hopkin- 
 son said, in his brief: "We must also look to its origin. 
 It is not enough that it is in fact beneficial to the public — 
 a manufactory — canal — road — made by an individual for 
 public use, with express stipulations.
 
 OPINIONS OF CHIEF JUSTICE WAITE PUBLIC USE. 437 
 
 ' ' The public have an interest in everything done by the 
 citizens. Kino^ can't touch a collcs-e charter." 
 
 In Planters' Bank v. Sharp (6 How. 327), the Supreme 
 Court says : ' ' One of the tests that a contract has been im- 
 paired is, that its value has, by legislation, been diminished. 
 It is not, by the Constitution, to be impaired at all. This is 
 not a question of degree, or manner, or cause, but of en- 
 croaching in any respect upon its obligation, — dispensing 
 with any part of its force." 
 
 The chief justice makes no attempt to attack the judg- 
 ment or to demolish the opinions in the College case, but 
 to undermine them, and pulverize their foundation as with 
 dualin, by adopting the theory of " public use," etc., 
 pressed upon the judges but discarded by them in that case. 
 If the decisions in Trustees v. Woodward and Bank v. Sharp 
 are to be deemed correct exjiositions of the Constitution, 
 Judges Field and Strong may well say, as they did in their 
 dissenting opinions, " If this be sound law, if there be no 
 protection, either in the principles upon which our republi- 
 can government is founded, or in the prohibitions of the 
 Constitution against such invasion of private rights, all 
 property and all business in the State are held at the mercy 
 of a majority of its Legislature. The public has no greater 
 interest in the use of buildings for the storage of grain, than 
 it has in the use of buildings for the residences of families, 
 nor, indeed, anj'^ thing like so great an interest ; and, 
 according to the doctrine announced, the Legislature may 
 fix the rent of all tenements used for residences, without 
 reference to the cost of their erection. If the owner does 
 not like the rates prescribed, he may cease renting his 
 houses. He has granted to the public, saj^s the court, an 
 interest in the use of the buildings, and ' he may withdraw 
 his grant by discontinuing the use ; but so long as he main- 
 tains the use, he must submit to the control.' The public 
 is interested in the manufacture of cotton, woollen, and 
 silken fabrics, in the construction of machinery, in the print-
 
 438 DARTMOUTH COLLEGE CAUSES. 
 
 ing and publication of books and periodicals, and in the 
 making of utensils of every variety, useful and ornamental ; 
 indeed there is hardly an enterprise or business engaging 
 the attention and labor of any considerable portion of the 
 community, in which the public has not an interest in the 
 sense in which that term is used by the court in its opinion ; 
 and the doctrine which allows the legislature to interfere 
 with and regulate the charges which the owners of property 
 thus emploj^ed shall make for its use, that is, the rates 
 at which all these different Idnds of business shall be carried 
 on, has never before been asserted, so far as I am aware, by 
 any judicial tribunal in the United States. 
 
 " The doctrine of the State court, that no one is deprived 
 of his propert}^ within the meaning of the constitutional 
 inhibition, so long as he retains its title and possession, and 
 the doctrine of this court, that whenever one's property is 
 used in such a manner as to aifect the community at large, 
 it becomes by that fact clothed with a public interest, and 
 ceases to he juris 2)^'ivati only, appear to me to destroy, for 
 all useful purposes, the efficacy of the constitutional guar- 
 anty. All that is beneficial in property arises from its use, 
 and the fruits of that use ; and whatever deprives a person 
 of them, deprives him of all that is desirable or valuable in 
 the title and possession. If the constitutional guaranty 
 extends no further than to prevent a deprivation of title and 
 possession, and allows a deprivation of use, and the fruits of 
 that use, it does not merit the encomiums it has received." 
 (Munn V. Illinois, 94 U. S. 141.) 
 
 " So long as that decision remains, it will be a waste of 
 words to discuss the questions argued by counsel in these 
 cases. That decision, in its wide sweep, practically destroys 
 all the guaranties of the Constitution and of the common 
 law invoked by counsel for the protection of the rights of 
 the railroad companies. Of what avail is the constitutional 
 provision that no State shall deprive any person of his prop- 
 erty except by due process of law, if the State can, by fixing
 
 DISSKNTCa; OPINIONS OF FIELD AND STRONG. 439 
 
 the compensation which he may receive for its use, take from 
 him all that is valuable in the propert}^? To what purpose 
 can the constitutional prohibition upon the State against 
 impairing the obligation of contracts be invoked, if the 
 State can, in the face of a charter authorizing a company to 
 charge reasonable rates, prescribe what rates shall be deemed 
 reasonable for services rendered ? That decision will justify 
 the legislature in fixing the price of all articles and the com- 
 pensation for all services. It sanctions intermeddling with 
 all business and pursuits and property in the community, 
 leaving the use and enjoyment of property, and the compen- 
 sation for its use, to the discretion of the legislature." 
 (Stone V. Wisconsin, 94 U. S. 18(3, 187.) 
 
 This decision was not put upon the ground that the owners 
 of the elevators, as private individuals, stand as they would 
 if, in the same capacity, they had owned the Suspension 
 Bridge, — the connecting link between two great public thor- 
 oughfares. 
 
 That artificial — in the respects now under discussion — 
 have, at most, no greater rights than natural persons, is one 
 of the principles underlying this decision. 
 
 If the court can look at the facts in the case of private 
 individuals, take judicial notice of them, in order to de- 
 termine whether any ' ' employment " or " business ' ' has 
 been *' clothed with a public interest," it can do so in the 
 case of corporations. If they could do it in Munn v. 
 Illinois and Stone v. Wisconsin, they could do it in Trus- 
 tees V. Woodward. 
 
 What were the purposes for which Dartmouth College was 
 incorporated, and what were the facts? The charter thus 
 sets forth the purposes : — 
 
 '"■ Know ye therefore, That We, considering the premises, 
 and being willing to encourage the laudable and charitable design 
 of spreading Christian knowledge among the savages of our 
 American wilderness, and also tiiat the best means of education 
 be established in our Province of New Hampshire, for the benefit
 
 440 DARTMOUTH COLLEGE CAUSES. 
 
 of said Province, do * * * will, ordain, grant, and consti- 
 tute that there be a College erected in our said Province of New 
 Hampshire, by the name of Dartmouth College, for the educa- 
 tion and instruction of youth of the Indian tribes in this land in 
 reading, writing, and all parts of learning which shall appear 
 necessary and expedient for civilizing and christianizing children 
 of pagans, as well as in all liberal arts and sciences, and also of 
 English youth and any others." 
 
 The doors of the College have been open for more than a 
 hundred years to all who sought its facilities. The College 
 prescribed the terms on which they were admitted, fixed the 
 compensation, and gave notice thereof to the world. Its 
 graduates have gone forth by thousands to take their places 
 in all the professions and walks of life ; the artificial power 
 acquired by them there has been so much capital ; the influ- 
 ence of the institution has been felt in every department and 
 throughout the Union. In view of these facts, well might 
 Chief Justice Richardson say in this cause, as he did (IN. 
 H, 119), "These great purposes are surely, if anything 
 can be, matters of public concern." Judge Marshall goes 
 further. He says : ' ' The particular interests of New Hamp- 
 shire never entered into the mind of the donors, never con- 
 stituted a motive for their donation. The propagation of 
 the Christian religion among the savages, and the dissemina- 
 tion of useful knowledge among the youth of the country, 
 were the avowed and sole objects of their contributions. In 
 these New Hampshire would participate ; but nothing par- 
 ticular or exclusive was intended for her. Even the site of 
 the College was selected, not for the sake of New Hampshire, 
 but because it was * most subservient to the great ends in 
 view,' and because liberal donations of land were ofiered by 
 the proprietors on condition that the institution should be 
 there established. The real advantages from the location of 
 the College are, perhaps, not less considerable to those on 
 the west than to those on the east side of Connecticut river. 
 The clause which constitutes the incorporation and expresses
 
 PURPOSE OF INCORPORATION A "PUBLIC USE." 441 
 
 the object for which it was made declares those objects to be 
 the instruction of the Indians, ' and also of English youth 
 and any others.' So that the objects of the contributors 
 and the incorporating act were the same — the promotion of 
 Christianity and of education generally ; not the interests 
 of New Hampshire particularly." 
 
 As we have already seen, even Mr. Hopkinson, counsel 
 for the College, declared it to be a ^^ public institution.''' 
 
 The College was located on the borders of two States : 
 on the banks of what was, to some extent, a natural 
 highway, and where, at the time of its location, it was 
 supposed that the great artificial lines of travel would con- 
 verge, and where it was hoped would be located the future 
 capital of a State. 
 
 The elevators were located at Chicago, which, partially 
 in consequence of natural facilities, but to a far greater 
 extent in consequence of artificial ones, has become a great 
 focal point for the reception and transhipment of grain. 
 The doors of these warehouses have been open for the 
 transaction of this business, in its present form, only about 
 twenty years. 
 
 The College has received students, and sent forth educated 
 men with their diplomas ; the warehouses have received 
 grain, and issued it under certificates of deposit. The Col- 
 lege takes toll in the nature of pay for services rendered ; 
 so do the warehouses. If " avoirdupois " is to be the test, 
 the warehouses have the advantage ; if brain sweat is to be 
 the test, the College leads. 
 
 The use in one case is public ; how can any man say it is 
 not so in the other? It seems to us that Chief Justice 
 Waite reechoes the proposition of Lord Hardwicke, enforced 
 by Sullivan in his argument, and enlarges its scope. He 
 says : " Property does become clothed with a public interest 
 when used in a manner to make it of public consequence 
 and afiect the community at large. When, therefore, one 
 devotes his property to a use in which the public has an 
 interest, he, in effect, grants to the public an intevost in
 
 442 DARTMOUTH COLLEGE CAUSES. 
 
 that use^ and must submit to be controlled by the public, 
 for the common good, to the extent of the interest he has 
 thus created. * * * But we need not go further. 
 Enough has already been said, to show that when private 
 property is devoted to a public use it is subject to public 
 regulation. It remains only to ascertain whether the ware- 
 houses of these plaintiffs in error, and the business which 
 is carried on there, come within the operation of this prin- 
 ciple. For this purpose we accept, as true, the statements ' 
 of fact contained in the elaborate brief of one of the counsel 
 of the plaintiffs in error." The brief referred to summar- 
 ized the magnitude of the warehouse business at Chicago. 
 
 These principles are far-reaching in their consequences . 
 As applied to corporations, in the absence of a positive 
 prohibition, the nature of the business or employment " as 
 public," or as affecting public interests, enters into and 
 permeates the charter, leavens the lump, and, in effect, 
 transforms it pro hac vice, into what, since Trustees v. 
 Woodward, is commonly termed a public corporation. As 
 we have already shown, the ablest courts and jurists have 
 differed widely as to the extent of the power which legisla- 
 tive bodies may exercise over such corporations. We have 
 before sugojested what we reo-ard as the true rule. 
 
 To carry out the principles laid down by them, it seems 
 to us that the Supreme Court must hold that legislatures 
 may, in general, authorize the taking of the private prop- 
 erty of individuals for grain-elevators, hack-stands, bakers' 
 ovens, and whatever else the court may regard as *' public " 
 employments. The test of a public use seems to be what 
 is beneficial to the public, or what legislative bodies may 
 deem advantageous to many people. 
 
 The Constitution imposes a restraint upon the exercise of 
 this power. What the real or constructive public may take 
 in this way, they must pay for. 
 
 But what is termed the power of "regulation" is far 
 more important than that of eminent domain, and especially 
 when apiilied to corporations.
 
 POWER OF "regulation" THURMAN BILL. 443 
 
 Whenever the nature of the employment or business 
 enters into a charter, the power of regulation goes with it. 
 So far as the court has yet gone, the real or constructive pub- 
 lic may not take the property itself W'ithout pajnng for it ; 
 but, under the guise of " regulation," this public may take 
 the beneficial use of it by paying a nominal price, such as 
 the public, through its legislative bodies, see fit to say is 
 reasonable. 
 
 In The Boston Beer Company v. Massachusetts (115 
 Mass. 153), the plaintiffs claimed that, under their charter 
 of February 1, 1827, incorporating them *' for the purpose 
 of manufacturing malt liquors in all their varieties, etc., in 
 Boston," etc., which the Legislature had no power to alter, 
 modify, or repeal, they had the right to keep for sale the 
 products of their manufacture, notwithstanding the pro- 
 visions of the statute of 1869 prohibiting the manufacture 
 of malt liquors to be sold in the State, and brewing and 
 keeping them for sale, under the penalties of fine, imprison- 
 ment, and forfeiture of the liquors to the State, because, 
 if otherwise, the State could prohibit them from carrying 
 on the very business for which they were chartered. The 
 State court held that the Legislature had the constitutional 
 right " to destroy the uses which were previously enjoyed, 
 or the property so made the subject of legislation ; ' ' and that 
 this would in nowise impair the obligation of the contract. 
 
 The Supreme Court of the United States has recently 
 affirmed this judgment, as it also has the constitutionality 
 of the Thurman bill. 
 
 Since the decision in the Granger cases, in New Jersey v. 
 Yard (95 U. S. 104), Farrington v. Tennessee (95 U. S. 
 679), Murray v. Charleston (96 U. S. 432), Edward v. 
 Kearzey (96 U. S. 595), and other cases, a portion of the 
 judges have attempted to bolster up some of the most ol)- 
 jectionable features in the decision in the College case. 
 
 The Supreme Court has, however, made some progi'ess, 
 so that we are not entirely -without hope that the right will
 
 444 DARTMOUTH COLLEGE CAUSES. 
 
 ultimately prevail. In New Jersey v. Yard, Mr. Justice Mil- 
 ler says : " The writer of this opinion has always believed, 
 and believes now, that one legislature of a State has no 
 power to bargain away the right of any succeeding legis- 
 lature to levy taxes in as full a manner as the Constitution 
 will permit." This is refreshing. Why does not the same 
 principle apply to the power of the State over its judicial 
 process ; to the right of eminent domain ; to the police 
 power, which has suddenly assumed such enormous propor- 
 tions ; and, in short, to every act whereby the legislature 
 attempts to divest the State of any attribute of sovereignty ? 
 
 In Fletcher v. Peck, the court decided that the States 
 were prohibited by the obligation clause from *' impairing" 
 any contract, including legislative grants ; in Trustees v. 
 Woodward, that the clause referred only to contracts in 
 respect to property ; in the Bridge case, that, presumptively, 
 it did not refer to royal or legislative grants ; in Ogden v. 
 Saunders, that it had no reference to prospective contracts ; 
 in the Granger cases, that the legislature was only pro- 
 hibited from interfering with the formal title and nominal 
 use of the ofrantees under these charters ; and in the Beer 
 case, if we are correctly ad\'ised as to its import, that the 
 legislature may extinguish the charter and the rights of the 
 grantees by prohibiting or destroying that use, if deemed 
 detrimental to the public morals. 
 
 This zigzag line is the natural result of pushing the inter- 
 pretation of the clause at first beyond its normal meaning, 
 in disregard of the principles of legal gravitation. 
 
 The Supreme Court may, for the time being, hesitate and 
 fluctuate as in the South Ottawa Bond case, but these rules 
 must govern until, as it has already done in relation to admi- 
 ralty jurisdiction, it turns its eye to the pole-star of legal 
 truth, and, in spite of adverse winds and baffling currents, 
 sails out into deep water and ignores the pernicious princi- 
 ples supposed to have been established in Trustees v. Wood- 
 ward.
 
 INDEX. 
 
 ACT OF JUNE 27, 1816, 
 
 application to court as to authority of Legislature to pass, 118, 119. 
 
 opinion of court in respect to, 119-121. 
 
 referred to, 1, 9, 11, 15, 47, 78, 109, 110, 112, 114, 118-122, 125, 126, 130, 
 131, 133, 135, 138, 139, 142, 144, 157-159, 188, 196-198, 432. 
 (See Trtjstbes ; Overseers.) 
 ADAMS, JOHN, 
 
 genius of, 319. 
 
 nominal head of party, 382. 
 
 opposition of Hamilton to, 382, 383. 
 
 relations with Jefferson, 383, 387. 
 
 troubles in the cabinet, 382. 
 ALBANY CONFERENCES, 
 
 who took part in ; when held, 253, 254. 
 
 letters in relation to; effect of; "N. Y." "gained," 264-272. 
 ALLEN, WILLIAM, 
 
 president of Dartmouth University, 136. 
 
 president of Bowdoin, 351, 352. 
 
 deposed ; brings assumpsit against the treasurer, 352. 
 
 result of suit, 353. 
 
 last days of his administration, 386. 
 
 son-in-law and confidant of Dr. John Wheelock, 353. 
 ALLEN V. COLLEGE, 
 
 cause of action, 3, 4. 
 
 entered at Plymouth, 3, 4. 
 
 old trustees consider advisability of contesting the Wheelock claim; 
 correspondence in relation to, 298-301. 
 
 judgment in, 205, 301. 
 
 execution issues, 301. 
 
 payment delayed, 301. 
 
 when adjusted, 301. 
 ARGUMENTS, 
 
 at Haverhill, 148. 
 
 of Marsh, 155-166. 
 
 of Parsons, 168-176. 
 
 of counsel at Exeter, 174-185, 434. 
 
 at Washington, 200, 201, 207, 208, 229, 232, 237, 295-297, 422. 
 
 (445)
 
 446 INDEX. 
 
 AKGUMENTS — Continued. 
 
 Judge Parker's views in relation to, 250, 251. 
 
 Judge Story to Mason in relation to, 246. 
 (See Rearguments.) 
 AUSTIN, JAMES, 
 
 his view of terms "obligation," "contract," "conveyance," 225, 226. 
 
 BANK, 
 
 United States ; incorporation of ; capital of, 356. 
 
 cases, 356, 357. 
 BARTLETT, ICHABOD, 
 
 sketch of, 154. 
 
 states position of Mason and Smith, 182. 
 
 argument at Exeter, 182-186. 
 
 objects to special verdict framed by Judge Smith, 193. 
 
 frames one himself, 193-199. 
 
 counsel for old trustees reject it, 193, 199. 
 
 fails to sign or indorse the verdict framed by Smith and agreed to by 
 Sullivan, 195. 
 BELL, SAMUEL, 
 
 sketch of, 149. 
 
 judge of the Superior Court of New Hampshire and trustee of Dart- 
 mouth College, 149. 
 
 unites with Chief Justice Richardson in opinions, 119-121, 148-151. 
 
 hears part of Holmes's speech at Washington, 282, 233. 
 
 BOWDOIN COLLEGE, 
 
 estublishnient of ; charter; grants to, 361. 
 
 Dr. Allen made president of, 351, 352. 
 
 legislative acts in relation to, 352. 
 
 case of Allen v. McKeen, 352-355. 
 BRACTON, 
 
 his views as to meaning of term " obligation," 227. 
 BROWN, FRANCIS, 
 
 succeeds Wheelock ; sketch of, 101. 
 
 charges against, 134. 
 
 defends position of old trustees in a public address, 136, 137. 
 
 in Boston " and elsewhere," 293, 294. 
 
 and at the Albany conferences, 264-271. 
 CHARLES RIVER BRIDGE CASE, 
 
 history of it ; opinions by Story, 367-369. 
 
 decision is right for the same reason that opinion in CJollege case is 
 wrong, 370. 
 CHARTER, 
 
 attempt to obtain a charter for an academy or college by Congrega- 
 tionalists; Wheelock makes no application for a; board of trust 
 opposed to, for school, 27. 
 
 drafted by Wheelock, 34. ■
 
 INDEX. 447 
 
 CHAETER— Continued. 
 
 amended by Judge Parker, 34, 35. 
 
 changes in draft of, explained ; Wheelock's draft of, still in existence, 
 35, 36. 
 
 negotiations in relation to, 27-36. 
 
 jurisdiction of, restricted to college, 39, 41. 
 
 college ; when issued and recorded, 52. 
 
 granted, not by king, but by Gov. John Wentwortb, 58. 
 
 royal commission gives him no power to make such grant, 53. 
 
 prohibits religious discriminations, 66. 
 
 oath required by, of trustees and others, 106, 110, 432. 
 
 defects in, alleged cause of difficulties, 107. 
 
 act amending, passed, 109. 
 
 college, and laws of Great Britain ; was it a contract, 398. 
 
 representations in preamble to, presented to Gov. Wentworth, 414-416. 
 
 was it a contract in a constitutional sense, 471-473. 
 (See Moor's Indian Chabity-School ; Dartmouth College; Conti- 
 
 YNENTL Congress.) 
 CIRCUIT COURT, 
 
 for District of New Hampshire, held at Portsmouth and Exeter, May 1 
 and October 1, respectively, 3. 
 
 suits in, instituted by direction of Webster ; his reasons, to whom con- 
 fided, 4, 5. 
 
 causes transferred from ; outside pressure, 201. 
 
 cases in, disposed of, 205. 
 
 perplexities of plaintiff in instituting suits in, 277, 278 
 
 new facts in causes before, 348-350. 
 
 hearing on causes in, 350. 
 
 opinion of Story in cases before, 360. 
 CLINTON, DE WITT. (See Charles Gliddeit Haines.) 
 
 COLLEGE CAUSES (five civil causes), 
 
 Trustees v. Woodward, trespass on the case, 1. 
 
 first four brought to test validity of acts of June 27, and December 18 
 and 26, 1816, 1. 
 
 Allen V. College, assumpsit, 3, 298-301. 
 
 Hatch V. Lang, ejectment, 3. 
 
 Marsh v. Allen, ejectment, 3. 
 
 Pierce v. Gilbert, ejectment, 3. 
 
 criminal prosecutions fruitless, 3. 
 
 what, transferred to Washington, 201. 
 
 technically ended, 205. 
 
 judgment in Allen v. Wheelock, 205, 301. 
 
 many papers in, destroyed, 249. 
 
 abstract of defendant's documents, 286-290. 
 
 new facts in, 348-350. 
 (See Trustees v. Woodward ; Supreme Court op The United States.) 
 COLLEGE CONTROVERSIES, 
 
 war of the newspapers and pamphleteers, 85, 86.
 
 4l8 
 
 INDEX. 
 
 COLLEGE CONTROVERSIES — Continued. 
 
 the "sketches," their authorship, and review of by Dr. Parish; Judge 
 Niles replies through the newspapers, 85. 
 
 reply to sketches by Dewey, Wheelock, and Gilbert; vindication of 
 conduct of trustees by Marsh ; reply to vindication by Freeman ; an- 
 swer to vindication by Dunham, 86. 
 
 become a political issue, 102. 
 
 contest in the Legislature, 107-109. 
 
 between old trustees and the State, 125. 
 
 full history cannot be written, 249, 250. 
 
 CONGREGATIONALISTS, 
 
 majority of the people of New Hampshire, 66. 
 the "standing order," 70. 
 
 CONSTITUTION, 
 
 of New York ; provisions in, 254, 255. 
 
 of New Hampshire ; tenure of provision in, 337. 
 
 of some of the States require judges to give opinions on certain occa- 
 sions, 338. 
 
 modified by dictum, 367. 
 
 theory of, of Great Britain, Russia, United States ; view of Gouverneur 
 Morris, 371. 
 
 rule of interpretation, 371, 372. 
 
 provision in, for amendment, 372. 
 
 Federal, what Marshall made it, 374. 
 
 ratification of, 378-381. 
 
 CONSTITUTIONAL CONVENTION, 
 
 of 1787, 213, 214. 
 
 proceedings of, 214-217. 
 
 discussions in, 379-381. 
 CONTINENTAL CONGRESS, 
 
 Dr. E. Wheelock claims that the royal charter was ratified and con- 
 firmed by, 62-64. 
 CORPORATIONS, 
 
 legislative authority over, 325-327. 
 
 public and private, 355, 362, 433, 455. 
 
 college and university, 362-367. 
 COUNCIL OP REVISION OF NEW YORK, 
 
 action of; Kent's opinions, — their nominal basis, 254, 269, 270. 
 
 established by old Constitution of New York, 268. 
 COUNSEL, 
 
 who were at Exeter, 151-154. 
 
 for defendant overmatched, 187. 
 
 at Washington ; their personal relations and qualifications, 199-202, 207, 
 229-247. 
 COURTS OF LAW, 
 
 power to set aside unconstitutional acts, 224, 390-392.
 
 INDEX. 449 
 
 DANE, NATHAN, 
 
 sketch of; ordinance of north-west territory framed by, 213. 
 contract clause in ordinance of, 213, 214. 
 
 clause in ordinance of; foundation of obligation clause in Constitution 
 of United States, 213. 
 
 DAKTMOUTH COLLEGE, 
 
 changes proposed in charter of, and bj' whom, 10-15. 
 
 location of, 1, 87, 38. 
 
 substitution of word "college" for "academy," suggested by Whee- 
 
 lock, 29. 
 why named for Dartmouth, 36, 37. 
 
 charter of, gives all the powers and privileges of a university, 38, 60-63. 
 object of, 106. 
 
 act of June 27, 1816, to enlarge corporation of, 118. 
 address of faculty and officers of, after their removal, 137-140. 
 purpose of incorporation of, 439, 440. 
 
 (See Charter; Foundation; University.) 
 
 DEED OF TRUST, 
 
 Eleazar Wheelock to board of trust in England, 48-52. 
 
 DEWEY, BENONI, 
 
 (See College Controversies.) 
 
 DRESDEN, 
 
 college district three miles square, so named ; president of college had 
 
 jurisdiction over, 65. 
 Gov. Wentworth advises that the college should have the government 
 of the town where it stands, according to the English custom, 87. 
 
 DUVALL, GABRIEL, 
 
 dissents from opinion of Marshall in college causes, 203, 302, 308. 
 offers Story the position of naval officer at Salem, 333. 
 
 EMIMET, THOMAS ADDIS, 
 
 case of; Chancellor Kent's course in reference to, 255, 250. 
 
 EPISCOPALIANS, 
 
 numerous near sea-coast ; governor and majority of office-holders were, 
 
 66. 
 Prof. Hale's case, 107. 
 
 ESTOPPELS, 
 
 doctrine of legal and equitable, 406-408. 
 
 PAllRAR'S REPORT, 
 
 arguments of counsel at Exeter and Washington contained in, 174, 207, 
 
 208, 285-298. 
 publication of, pushed forward by Webster, 205. 
 Mason's idea as to what it should contain, 285, 286. 
 publication of, and correspondence in relation to, 290-296. 
 Wheaton follows Farrar, 298. 
 
 20
 
 450 INDEX. 
 
 FARRAK, TIMOTHY, 
 
 sketch of, 84. 
 
 (See Religious Phase, etc. ; Gilman, John T. ; Trtjstebs.) 
 FEDERAIilST, 
 
 indebted for, to Hamilton, 379. 
 
 FLETCHER v. PECK, 
 
 second opinion in, 322. 
 history of, 400, 401, 
 points apparently decided in, 402. 
 discussion of, 402-405, 409. 
 judgment in, rests on what, 403. 
 
 FOUNDATION, 
 
 theory of, 358-362. 
 
 of Bowdoin, 358, 361, 
 
 of Dartmouth, 359, 361. 
 
 position taken by Hopkinson in his brief in relation to, 359, 360. 
 
 of Dartmouth College, discussion of, 419-421. 
 
 FREEMAN, PEYTON R. 
 
 (See College Controversies.) 
 
 GILBERT, BENJAMIISr J. 
 
 (See College Controversies.) 
 
 GELMAN, GOV. JOHN TAYLOR, 
 
 fast friend of "VYheelock, 92. 
 
 leading Federalists purpose to force him to retire, and put the elder 
 
 Farrar in his place, 92. 
 protests against the removal of Wheelock, 100. 
 
 GRANGER CASES, 
 
 importance of reasoning in ; counsel in, 335. 
 
 ground relied on, 437, 439. 
 
 dissenting opinions in, 437-439. 
 
 comparison between college and warehouses, 441. 
 
 opinion of court in, 441, 442. 
 
 effect of doctrine established bj^ decision in, 442. 
 
 GRANTS, 
 
 substitute for Landaff grant ; grant of nine hundred dollars, 8, 26. 
 
 grant of township six miles square, 8, 9. 
 
 by Gov. B. Wentworth; by Gov. Dunmore, 20, 21. 
 
 Gov. J. Wentworth forfeits Landaff; promises to regrant it to school, 
 25, 26. 
 
 by Legislature of Vermont to Moor's Charity-School, and to the col- 
 lege, 44. 
 
 Landaff to college, 53-55. 
 
 to college and to Wheelock, 56-60. 
 
 Wheelock memorializes Vermont Legislature for, to university, 62, 63.
 
 INDEX. 451 
 
 HAINES, CHARLES GLIDDEN, 
 
 argument of, in Ogden v. launders, 206, 218, 219, 267. 
 history of Emmet's case, by, 255. 
 reference to Livingston, 257. 
 sketch of, 266-268. 
 
 HALIFAX, LORD, 
 
 approves of design for royal charter for charity-school ; advises incorpo- 
 ration by Connecticut Assembly ; promises ratification by the home 
 office, 22. 
 
 HAMILTON, ALEXANDER, 
 
 owe to, the Federalist, 379. 
 views of, 379-381. 
 influence over Marshall, 381. 
 pitted against Jefferson, 381, 382. 
 opposed to Adams, 382-384. 
 death of, 394. 
 
 HANOVER, 
 
 settlement at, and vicinity by Wheelock and his Connecticut friends, 65. 
 
 HATCH V. LANG, 
 
 writ; special verdict; taken to United States Supreme Court, 3, 281- 
 
 285. 
 argument in, by Austin, 251. 
 decision of, by Judge Story, 276. 
 
 HAVERHILL, 
 
 half shire town of Grafton County, 1. 
 
 Trustees v. Woodward entered at, in Common Pleas, February 25, 
 
 1817, 2. 
 entered at, on appeal in the Superior Court, May 20, 1817, 2. 
 (See Arguments; Dartmouth College.) 
 
 HOLMES, JOHN, 
 
 sketch of, 228-231. 
 
 his mathematics, 230, 231. 
 
 argument at Washington, 232, 233. 
 
 argument of, written out and reported, 295. 
 
 HOPKINSON, JOSEPH, 
 
 sketch of, 236. 
 
 argument of, as given in Farrar's Report, prepared by Webster, 295. 
 discusses question of foundation of Dartmouth College, 359, 360. 
 brief of, 295, 359, 360. 
 
 BIPEACHMENT, 
 
 where taken from by the fathers ; views of Jefferson in relation to, 372. 
 farce of, 374. 
 
 INVESTIGATIONS, 
 
 committee of, appointed by Gov. Gilmaii ; hearing fixed without knowl- 
 edge of Wheelock ; Wheelock applies to Webster ; Webster fails to 
 appear, 88, 89.
 
 452 INDEX. 
 
 INVESTIGATIONS — Continued. 
 
 committee of, report; report of committee of, laid before Legislature 
 by Gov. Plumer, 194. 
 
 (See Memorial.) 
 
 JAY, JOHN, 
 
 views of, 346. 
 
 JEFFERSON, THOMAS, 
 
 opinion of, as to inviolability of charters, 107. 
 
 opposed to Hamilton, 381. 
 
 antipathy between, and Marshall, 384. 
 
 -JOHNSON, WILLIAM, 
 
 sketch of, 307-309. 
 
 dissatisfied with Marshall's practice, 311. , 
 dissents in Fletcher v. Peck, 312. 
 
 instincts of, correct ; discusses obligation clause, 312-315. 
 concurs in judgment in College cases, 409. 
 
 dissenting opinion in Fletcher v Peck decisive against the plaintiff in 
 Trustees v. "Woodward, 249. 
 
 KENT, JA:VIES, 
 
 commends opinion of Puchardson and concurs in conclusion, 192, 250. 
 influence of, with Johnson, Clinton, and Livingston ; ngi-ees to write 
 
 Johnson's opinion, 253, 256. 
 receives Webster's argument, etc., from Marsh, 253. 
 political views, 254. 
 partiality of, 255. 
 action of, in Emmet's case, 255. 
 changes his opinion because of alleged new view of facts from Webster's 
 
 argument in College causes, 263, 264. 
 shrinks from consequences of doctrine of Supreme Court in Sturges v. 
 
 Crowninshield, 807. 
 
 (See Albany Conferences.) 
 
 LAWYERS, 
 
 eight in New Hampshire, 1768 ; not consulted by Wheelock, 34. 
 
 LEGAL-TENDER CASES, 
 question in, 430, 431. 
 decisions in, and Marshall's doctrine, 430-432. 
 
 LEGISLATIVE AUTHORITY, 
 
 how limited, 444. 
 
 LEGISLATIVE INTERFERENCE, 
 
 policy of, 7, 8. 
 
 plan of John Wheelock and Olcott; right of, reserved by the State in 
 
 substitute for LandatT grant and grant of 1807, 8. 
 threats of, 9. 
 
 kind of, proposed by trustees in memorial, 9, 10. 
 plan of Olcott and others for, 10-12. 
 Webster opposes, 11-13. 
 color of right of, 15.
 
 INDEX. 403 
 
 LEGISLATIVE INTERFERENCE — Cow!!inMerf. 
 
 Webster's argument in Merrill v. Sherburne, 16. 
 in the pig case, 390-392. 
 
 LETTERS, 
 
 Adams to Farrar, 69, 70. 
 
 Board of Trust to Wheelock, 40, 43. 
 
 Brown to Farrar, 125, 145, 148, 281, 291, 295. 
 
 Smith, 293. 
 
 Webster, 264, 268, 271, 272. 
 Daggett to Mason, 233. 
 Dartmouth to Wheelock, 290. 
 Farrar to Brown, 278. 
 
 Smith, 283. 
 
 Webster, 285. 
 Gilman to Wheelock, 288. 
 Holmes to Farrar, 295. 
 Hopkinson to Brown, 304. 
 Marsh, 274. 
 Webster, 233. 
 Jefferson to Johnson, 311, 384. 
 Plumer, 107. 
 Ritchie, 311. 
 Rush, 319. 
 Johnson to Jefferson, 308. 
 Kent to Farrar, 243. 
 Marsh, 262. 
 Story, 370. 
 Washington, 256. 
 Livingston to Story, 305. 
 Marsh to Farrar, 277, 279, 298, 301. 
 Marshall to Story, 396. 
 Mason to Marsh, 94. 
 
 Plumer, 1, 23, 284. 
 
 Smith, 194, 195. 
 
 Storj^ 293. 
 Morris to Hills, 380. 
 
 Ogden, 380, 381. 
 
 Pickering, 380. 
 
 Walsh, 380. 
 Olcott to Smith, 127. 
 
 Webster, 11, 12. 
 Parker, L, to Webster, 250. 
 Parker, W., to Wheelock, 35. 
 Plumer to Mason, 123. 
 Prescott to Story, 305. 
 Putnam to Farrar, 290. 
 Smith to Brown, 129, 292, 350. 
 
 Farrar, 282.
 
 454 INDEX. 
 
 LETTERS — Continued. 
 
 Smith to Olcott, 128. 
 
 Phelps, 23, 24. 
 Story to Bacon, 400. 
 Duvall, 333. 
 Farrar, 298. 
 Fay, 308, 317. 
 Martiueau, 400. 
 Mason, 246, 368, 369. 
 McLean, 400. 
 Story, W. W., 343. 
 Wheaton, 242, 245, 347. 
 Thompson to Adams, 89, 384. 
 
 Farrar, 110, 126, 295. 
 Olcott, 300. 
 Smith, 193. 
 Webster to Brown, 5, 6, 231, 236, 241, 270, 303, 349. 
 Dunham, 91. 
 
 Farrar, 243, 244, 295-297, 302. 
 Chancellor Kent, 153. 
 Moody Kent, 93. 
 Mason, 6, 7, 209-211, 232, 236, 236, 238, 240, 243, 246, 303, 
 
 304, 348, 349, 394. 
 Olcott, 12, 13. 
 Porter, 330. 
 
 Smith, 5, 209, 210, 233, 235, 236, 238, 245, 303. 
 Story, 192. 
 Webster, E., 11, 302. 
 Wentworth to Wheelock, 29, 37. 
 Wheaton to Farrar, 296. 
 Wheelock to Dartmouth, 36, 37. 
 Phelps, 58, 59. 
 Langdon, 27. 
 Smith, 22. 
 Webster, 88. 
 
 Wentworth, 28, 29, 33, 290. 
 Wirt to Carr, 234, 235, 241. 
 
 Gilmer, 247. 
 Wolcott to Ames, 335. 
 
 LIBRARIES, 
 
 Mason advises suit for, 3 
 difficulties in relation to, 291, 292. 
 
 LIVINGSTON, 
 
 sketch of, 456, 457. 
 
 opinion of, in Adams -v. Storey, 257-263. 
 
 discusses obligation clause, 258. 
 
 and insolvency laws, 259. 
 
 views in Sturges v. Crowninshield same as in Aaams v. Storey, 262.
 
 iisDKX. 455 
 
 LIVINGSTON — Continued. 
 
 Story's influence over. 304, 305. 
 
 refuses to give his opinion in Ti-ustees v. Woodward to the reporter for 
 publication, 296. 
 MAKBUEY V. MADISON, 
 
 points in issue, 388. 
 
 histor}' and statement of case, 386-388. 
 
 Marshall's opinion, 388, 389. 
 
 extra-judicial character of Marshall's opinion in, 392. 
 
 real issue in, 393, 394. 
 MAESH, CHAELES, 
 
 sketch of, 83. 
 
 argument of, 155-166. 
 
 conference with Parker, 252. 
 
 (See College Controvehsies ; Letters; Trustees.) 
 MAESH ALL, JOHN, 
 
 shuts off reargument in Trustees v. Woodward, 203, 246. 
 
 overthrows doctrine of charitable uses, 203. 
 
 his theory of government, 20fi, 207. 
 
 in the Virginia Convention, denies power to sue a State, 225, 374. 
 
 sustains doctrine in Sturges v. Crowninshield, 307. 
 
 practice of entering up judgments and delivering opinions, 310, 311. 
 
 opinion in Trustees v. Woodward and Sturges v. Crowninshield, on obli- 
 gation clause, the same, 315, 316. 
 
 argument of, in Fletcher v. Peck, in relation to grants, 370. 
 
 doctrine of, as affecting amendments, 372-374. 
 
 sketch of, 374-378. 
 
 hates Jefferson, 384 
 
 appointment of, as cnief justice, 384, 385. 
 
 dissatisfaction on account of his appointment, 385, 386. 
 
 changes his meridian to that of Jay, 386, 394. 
 
 what Marshall did, and did not, decide in Marbury v. Madison, 388, 389. 
 
 changes practice in the Supreme Court, 393. 
 
 his views and Lord Mansfield's, 393. 
 
 left the leader of his party, 394. 
 
 influence of Story, Pinkney, and Webster with, 394. 
 
 reasons of, for construing obligation,clause to apply to conveyances and 
 grants, 409, 410. 
 
 assumes charter to be a contract, 412, 413. 
 
 opportunities of, for knowing facts in relation to charter, 412. 
 
 substitutes "application" for "representation," 413-415. 
 
 his statement of the case and the facts, 419-421. 
 
 argument of, avoids real question, 423, 424. 
 
 view of, in Owings v. Speed, 427-429. 
 (See Letters; Trustees v. Woodward; Supreme Couht of the United 
 
 States.) 
 MAESH V. ALLEN, 
 
 writ ; verdict ; taken to United States Supreme Court, 3.
 
 456 INDEX. 
 
 MASON, JEREMIAH, 
 
 advises against removal of Wlieelock; his reasons therefor, 94-97. 
 named for chief justice, but declines, 123. 
 
 made sero:eant-at-law, 151, 152. - 
 
 points and argument at Exeter, 176, 177, 207. "■ 
 
 course advised by, in relation to causes in Circuit Court, 278, 279. 
 (See Letters.) 
 McFAKLAND. 
 
 (See Remonstrance; Trustees.) 
 MEMORIAL, 
 
 of Thompson, Paine, and McFarland to Legislatureof New Hampshire; 
 
 proposes plan for amendment of charter, 9, 10. 
 of Dr. John Wheelock to New Hampshire Legislature, 87, 88. 
 charges against trustees, 87. 
 prayer of, granted, and committee of investigation appointed by Gov. 
 
 Gilman, 88. 
 of Eleazar Wheelock to the Vermont Legislature, 60, 63. 
 MOOR'S INDIAN CHARITY-SCHOOL, 
 
 founded by Joshua Moor ; steps taken by Wheelock to obtain a royal 
 
 charter, 21. 
 Wheelock applies to Legislature of Connecticut for charter for, 22, 23. 
 subscriptions for, 23, 29. 
 Wheelock sends Occom to England and Scotland to solicit funds for ; 
 
 about twelve thousand dollars raised for, by Occom, 23, 415-417. 
 English funds placed in hands of London trustees ; funds for, granted 
 
 by New Hampshire, Connecticut, and Massachusetts, 23. 
 power to grant charter for, discussed; question of location ; Wentworth 
 
 agrees to give LandafFto, if located in New Hampshire, 25. 
 location of, fixed ; controversies in relation to location of, 26. 
 Wheelock gathers funds for, 29. 
 
 draft of charter for incorporation of academy; "college" may be sub- 
 stituted for academy, 29. 
 subscriptions for ; when and how payable ; government of, 39, 40. 
 funds collected for, kept separate, 45. 
 incorporated by New Hampshire Legislature, 45-47. 
 donations for, secured by John Wheelock, 47. 
 a preparatory school ; when it ceased to exist as a distinct institution ; 
 
 president controls funds; scanty fund still exists, and Indians have 
 
 the benefit of it, 47. 
 charter for, framed months before Wheelock suggested the creation of 
 
 college or university, 419. 
 
 (See Grants; Continental Congress.) 
 
 MORRIS, GOUVERNEUR, 
 
 discusses obligation question in Constitution of 1787, 214, 215. 
 favors a strong central government, 220. 
 argument in case of Bank of North America, 223-22-5. 
 wrote the Constitution, :180.
 
 INDEX. 457 
 
 NEW HAMPSHIKE, 
 
 province of; created when ; claim of Massachusetts to a portion of, 20. 
 
 NEW HAMPSHIKE KEPORTS, 
 
 earlier volumes of, how made up, 150. 
 
 NELES, NATHANIEL, 
 
 student of Dr. Bellamy, 68. 
 
 inherits Bellamy's views; becomes trustee, 81. 
 
 sketch of, 82. 
 
 (See College Controversies; Trustees.) 
 
 OBLIGATION CLAUSE, 
 
 did not establish doctrine of State suicide, 19. 
 not alluded to by Parsons in his argument, 174. 
 construction given to, if wrong, should be brought in review, 206. 
 history of, apparently unknown to Supreme Court, 206. 
 ' art. 1, sect. 10, of the Constitution contains, 213. 
 
 debates in relation to, in Constitutional Convention, 214-218. 
 
 Judge Wilson its probable author, 217, 220-223. 
 
 Wilson and Morris had special reasons for knowing raeaHing of, 223. 
 
 Judge Wilson, University of Pennsylvania and College of Philadelphia, 
 
 225. 
 meaning of, 227, 397. 
 
 view of meaning of words of, taken by Supreme Court, 227. 
 discussed by Livingston in Adams v. Storey, 260-262. 
 and Sturges v. Crowninshield, 305-307. 
 
 true construction of, must be determined on principle at last, 311, 312. 
 discussion of, 312-316, 326, 327, 403-410. 
 distinction between "obligation" and "contract," 312. 
 object of, as interpreted by Marshall, Webster, and Story, 345. 
 constitutional provision, 397. 
 logical consequences of decisions upon, 397. 
 and Fletcher v. Peck, 403. 
 and the doctrine of estoppel, 406-410. 
 applies to executory contracts, 409, 424. 
 American doctrine, 425. 
 
 why it should apply to executory contracts, 425. 
 probable view of the framers of the Constitution, 425, 426. 
 effect of Marshall's canon of interpretation, 427. 
 Marshall's opinion and the power of Parliament, 427, 428. 
 re-swing of the legal pendulum after extraordinary construction first 
 given to,- 144. 
 
 OCCOM, SAMSON, 
 
 a Mohegan Indian ; enters Wheelock's family ; scholarship ; becomes a 
 preacher of distinction, 21. 
 
 (See Moor's Indian Cuarity-School.) 
 OLCOTT, MILLS, 
 sketch of, 84. 
 appointed treasurer by old board, 117.
 
 458 INDEX. 
 
 OVEKSEEKS, 
 
 board of, created, 109. 
 
 names of, for university, 111. 
 
 members of board of, appointed; meeting of, at Hanover; meeting fails 
 
 for want of a quorum, 112. 
 action taken by, 114, 115. 
 vacancies in board of, filled, 124, 141. 
 
 PAINE, ELUAH, 
 
 sketch of, 82, 83. 
 
 (See Remonstrance ; Trustees.) 
 PAEKER, WILLIAM, 
 
 sole legal adviser of Gov. Wentworth, 34. 
 sketch of, 35. 
 
 PARSONS, THEOPHILUS, 
 
 sketch of, 167, 168. 
 
 argument of, 168-174. 
 
 does not allude to obligation clause, 174. 
 
 (See Parsons View.) 
 
 PARSONS VIEW, 
 
 the, 108, 168-174. 
 
 part of trustees, with Webster and Mason, rely on, 154. 
 considered charter unalterable by Legislature, 174. 
 PARTIES, 
 
 Federal and Republican ; difference between, 378. 
 
 PHILLIPS V. BURY, 
 
 history of, 363-367. 
 
 opinion of Holt, 364, 365. 
 
 in the House of Lords, 365. 
 
 argument of Stillingfleet, 365-367. 
 
 question in issue in, 366. 
 
 dictum of Holt in, relied on by Story, 367. 
 
 PIERCE V. GILBERT, 
 
 writ ; university vouched in ; verdict ; taken to United States Supreme 
 Court, 3. 
 PINKNEY, WILLIAM, 
 
 brought into the college causes, 202, 241. 
 
 gives notice of motion for reargument ; closeted with Dr. Perkins, 202. 
 
 the chief justice shuts off reargument by, 203. 
 
 meets Webster in Bullard v. Bell, 204. 
 
 Wirt and, on bad terms, 245, 246. 
 
 sketch of, 246-248. 
 
 machinery in motion that was to render efforts of, in colleges causes 
 
 unavailing, 249. 
 estimate of, by IMarshall, 394. 
 
 (See College Causes ; Trustees v. Woodward.) 
 
 PLYMOUTH, 
 
 half shire town of Grafton Countv, 1. 
 
 I
 
 INDEX. 459 
 
 PLYMOUTH — Continued. 
 
 Allen V. College entered at ; questions raised at, in Allen v. College, on 
 one point, same as in Trustees v. Woodward; judgment for Allen, 4. 
 
 PLUMER, WILLIAM, 
 
 governor in 1812; again nominated ; Webster's opinion of; tolerant in 
 
 religion, 76. 
 "Plumer's Constitution," 76, 77. 
 services of, to those who refused to pay taxes to support churches to 
 
 which they did not belong, 77, 78. 
 reprimanded by Judges Farrar and Wingate, and defies them, 77. 
 message of June, 1816, 77, 78, 105-107. 
 
 policy of, in appointment of officers for Dartmouth University, 79. 
 approves act for taxation of clergy, 79. 
 nominated for governor, 102. 
 sketch of, 103. 
 
 message of December 5, 1816, 121, 122. 
 liberality of, in appointments, 122-124. 
 message of November 20, 1816, 125. 
 
 POMEROY'S THEORY, 
 
 keystone of the arch on which he builds, stricken out by Marshall's 
 opinion, 396. 
 
 POTHEER, 
 
 defines the term "obligation," 222, 223. 
 
 PRESBYTERIANS. 
 
 most numerous in valleys of Merrimack and Connecticut ; Wheelock in 
 his later years a; Wheelock gathered churches of that order about 
 him ; Wheelock's reasons for preferring Presbyterian form of church 
 government, 66, 67. 
 
 PRESIDENTIAL CONTEST, 
 of 1801, 382-384. 
 
 PROTEST, 
 
 of minority against passage of legislative acts, 109. 
 of Gov. Gilman and Judge Jacob against the removal of Dr. John 
 Wheelock, 100. 
 
 PUBLIC USE, 
 
 doctrine of, relied on by Waite in Granger cases, 437. 
 applies to elevators and colleges, 440-442. 
 theory of regulation, 442, 443. 
 
 REARGUMENT, 
 
 Pinkney prepares for, 202, 203. 
 
 counsel for college and court aware of it, 202, 241, 245. 
 
 Pinkney 's grounds for, 243. 
 
 summarily shut ofi", 203, 244. 
 
 views of counsel for old trustees, 244.
 
 460 INDEX. 
 
 KELIGIOUS PHASE OF THE CONTROVERSY. 
 
 church difficulties at Hanover; charges of Rachel Murch; trial of 
 Samuel Haze ; Haze convicted by the sessions, 67. 
 
 Haze appeals to Grafton Presbytery, 67, 68. 
 
 found guilty, but not censurable ; Wheelock, the trustees, and college 
 church become involved in the controversy ; questions of church gov- 
 ernment and discipline, 68. 
 
 difference in opinion between Wheelock, Shurtlelf, and others in rela- 
 tion to church government ; troubles arose in form from this differ- 
 ence, 69, 70, 82. 
 
 views of Judge Crosby and Prof. Adams, 69, 70. 
 
 clergy exempted from taxation, 70-80. 
 
 people compelled to support church to which they did not belong, 72-75. 
 
 constitutional provisions putting all sects on same level nullified, 73-75. 
 
 subtle distinctions between different denominations drawn in the trial 
 of church causes, 74. 
 
 charge of Judge Wingate that Universalists and Calvinists are same 
 sect or persuasion; Wingate's views shared by Judge Farrar, one of 
 the trustees, 75. 
 
 people compelled to pay tithes or be ruined by litigation, 75. 
 
 attempt to prohibit any one from holding an office in Dartmouth Uni- 
 versity except Protestants, 78. 
 
 freedom of religious opinion given by the act in amendment to the 
 charter, 78. 
 
 (See William Plumer.) 
 
 REMONSTRANCE, 
 
 of Thompson, Paine, and McFarland, of June 19 and 24, 1816, 9, 10, 87, 
 88, 107-109. 
 
 RICHARDSON, WILLIAM M., 
 
 appointed chief justice of the Superior Court of New Hampshire, 123. 
 sketch of, 148, 149. 
 
 opinion of, in Trustees v. Woodward, 187-192. 
 
 opinion of, extensively circulated; Webster's view of opinion of, 192. 
 Kent reads opinion of, and concurs in conclusions reached by, 192. 
 , assailed for taking a position since affirmed by the Supreme Court oi 
 the United States, 192, 193. 
 
 SMITH, JEREMIAH, 
 
 made serjeant-at-law, 151, 152. 
 sketch of, 152, 153. 
 argument at Exeter, 178. 
 Webster's estimate of, 153. 
 
 (See Letters ; Trustees v. Woodward.) 
 
 SOVEREIGNTY, 
 
 power of taxation, one of the attributes of, 18, 19. 
 attributes of, cannot be alienated, 19. 
 of State, 373, 374, 396.
 
 INDEX. 461 
 
 SPECIAL VERDICTS, 
 
 difficulties in agreeing upon, 193. 
 agreement for, 194. 
 stipulations sent up with, 195. 
 drawn by Bartlett, 196-199. 
 objection by Smith to Bartlett's, 199. 
 finally drawn by Smith, 199. 
 what, revised by Judge Smith, 282, 283. 
 views of Mason, 283-285. 
 
 (See Trustees v. "Woodward.) 
 STANDING ORDER, 
 
 legislative discrimination in favor of, 75. 
 
 (See CONGREGATIONALISTS ; RELIGIOUS PhASE, ETC.) 
 
 STORY, JOSEPH, 
 
 changes his judicial base ; feeling of university people, 239, 240. 
 
 Hopkinson's view of Story's course, 274, 275. 
 
 changes his political base, 308. 809 
 
 sketch of, 328-335, 
 
 labors of, 329, 330. 
 
 text-books, 330. 
 
 practice, 330-332. 
 
 feels the force of Federal aristocracy ; father of, 331. 
 
 political views, 331-333. 
 
 in Massachusetts Legislature, 334-336. 
 
 appointment of, as justice of the Supreme Court of the United States, 
 
 335. 
 relations with Gov. Plumer, 336, 337. 
 
 gives Plumer his views, and the anti-Federalists act on them, 336-338. 
 opinion of, on "requisition" question — holds to the view he gave 
 
 Plumer, 338, 339. 
 struggle with Judge Parker, 339-343. 
 rebuked by Catron, 343, 344. 
 doctrine of, overruled, 344. 
 scatters his opinions on every hand, 344. 
 draws his inspiration from Jay, 346. 
 national ideas of, 346-348. 
 comments of his son on his opinion in Martin v. Hunter's Lessee, 347, 
 
 348. 
 constitutional studies of, 348. 
 reads opinion in causes before Circuit Court, 350. 
 views of, in College causes, where found, 351. 
 effect of his decision, 351. 
 
 doctrine and opinion of, in Allen v. McKeen, 353-355, 358 
 view that filling an office is a contract, overruled, 354. 
 states main question, 355. 
 
 theory of public and private corporations, 355-358. 
 novel disposition of history by, 356. 
 distinctions and definitions of, in relation to corporations not warranted, 
 
 357, 358.
 
 462 INDEX. 
 
 STORY, JOSEPH — Continued. 
 
 industry of; authorities relied on by, in College cases, 362. 
 
 wi-ites opinion in Charles Kiver Bridge case five years before it was 
 
 decided, 368. 
 object of, 369. 
 
 is alarmed by decisions of Supreme Court, and contemplates resigning, 
 399, 400. 
 (See Letters ; William Plumer ; John Marshall ; Trustees v. Wood- 
 ward.) 
 
 SUBSCRIPTIONS, 
 
 for carrying on controversy raised by Webster, 199 
 
 (See Moor's Indian Charity-School.) 
 
 SULLIVAN, GEORGE, 
 
 made barrister-at-law, 152. 
 
 sketch of, 153, 154. 
 
 argument at Exeter, 179-182. 
 SUPREME COURT OF THE UNITED STATES, 
 
 attainments of the present judges; lacks unity of old bench, 17. 
 
 drifting back into the doubt and uncertainty of the earlier years of its 
 existence; a bivouac for politicans in early days; the country has 
 outgrown the, and the inevitable result ; defects in its organization, 18. 
 
 Trustees v. Woodward carried to, 193. 
 
 argument before, 200. 
 
 judges of, unable to agree, 200. 
 
 human, like other tribunals, 206. 
 
 position of judges of, in Trustees v. Woodward, 249. 
 
 framers of the Constitution did not intend that the construction of that 
 instrument should be made by ; controlled by a manufactured public 
 sentiment, 252. 
 
 practice of delivering opinions in, before and after Marshall's appoint- 
 ment to the bench, 309, 310. 
 
 primitive, 310. 
 
 opinions of, on constitutional questions, 358. 
 
 fruitless experiment of imposing restraints upon, by constitutional 
 amendments, 374. 
 
 decision of, reversed by a resort to arms, 374. 
 
 business of, 385, 386. 
 
 doctrine of Marshall and his court modified by, 399. 
 
 progress of, 443, 444. 
 
 "in the end," must be governed by true principles, 444. 
 
 (See Trustees v. Woodward; Obligation Clause.) 
 
 TAXATION, 
 
 legislation in relation to, 70, 72, 79, 80. 
 decisions of court, 71, 73, 74, 77. 
 of State, 373, 374. 
 
 (See Religious Phase, etc.) 
 
 THOMPSON, THOMAS W., 
 
 sketch of, 83, 84.
 
 INDEX. 463 
 
 THOMPSON, THOMAS W. — Cojitinued. 
 
 comment on course of, 90. 
 
 (See Letters; Kemonstrance ; Trustees.) 
 THURMAN BILL, 
 
 constitutionality of, aflSrmed, 443. 
 
 TRUSTEES. 
 
 feeling of majority towards John Wheelock, 10. 
 
 mode of choosing proposed and rejected, 13. 
 
 plan of choosing adopted, 14, 15. 
 
 logical consequences of plan adopted by, 15. 
 
 London opposed to incorporation, 27. 
 
 provincial ofncers suggested for college, 30, 34, 36. 
 
 first meeting of, 39. 
 
 resolution of, in relation to funds, 45. 
 
 names of, 81. 
 
 determination of, to put down "family dynasty," 69, 70, 85. 
 
 remonstrance of, to Wheelock's memorial ; their views of charges, 87, 88. 
 
 increased to twenty-one by Legislature, 110. 
 
 names of, 111. 
 
 new, appointed; meeting of, at Hanover, 112. 
 
 action taken by respective boards, 113, 114. 
 
 proceedings of old board, IIG, 117. 
 
 application by governor and council to the court in relation to filling 
 
 vacancies in board of, 119. 
 memorial of 1804, of old, 124. 
 appointment of, 124, 141. 
 Wheeler comes to rescue of old, 125. 
 quandary of the old board, 125-132. 
 meeting of new board at Concord, 132. 
 charges against old board, 132-134. 
 reply of old board, 134-136. 
 old, fail to appear and are removed, 136. 
 old board take possession of college buildings, 205. 
 old board of, despondent, 250. 
 old board desire to rely on decision in State court to defeat Allen, 298- 
 
 301. 
 
 (See John Wheelock.) 
 
 TRUSTEES V. WOODWARD, 
 
 writ; declaration; mandate, 1. 
 
 attachment ; formal plea ; entry of appeal ; amendment ; cause, how sub- 
 mitted ; where and by whom reported, 2. 
 practical result of final judgment in; effect of decision, 16. 
 question for American people, 17. 
 must be brought in review, 17. 
 pleadings, 142, 143. 
 argument at Haverhill, 143. 
 agreement of counsel in, 141, 145, 186.
 
 464 INDEX. 
 
 TKUSTEES V. WOODWAKD — Continued. 
 continued to September term, 1817, 146. 
 docket entries, 150, 151. 
 arguments at Exeter, 174, 176. 
 references of counsel in, 186. 
 continued for advisement, 187. 
 opinion by tlie State court, 187-192. 
 taken to United States Supreme Court, 193. 
 special verdict in, 193, 196-199. 
 writ of error in, drawn by Smith, 199. 
 continued, 200. 
 
 decision of Supreme Court in, 203. 
 
 Webster moves for judgment nunc pro tunc ; motion granted, 204. 
 arguments at Washington, 207, 208, 238, 285, 298. 
 circumstances which affected decision, 264. 
 "N. Y. and N. E." gained, 271, 272. 
 judges who sat in, 802, 803. 
 judgment in, 302-304. 
 Marshall delivers opinion in, 302. 
 position of other judges, 303. 
 "point on the surfiice, " 395. 
 
 opinion of Marshall, 411, 413-415, 419-421, 423, 424, 426-428. 
 question before the court, 428-430. 
 
 decision in, compared with opinions in Granger cases, 439. 
 (See College Controversies; Webster; Counsel.) 
 
 UNIVERSITY, 
 
 protest against legislative act in relation to, by minority, 47, 109. 
 institution regarded as a, by Wheelock, trustees, and Dr. Belknap, 
 
 60-63. 
 trustees and overseers appointed, 112, 
 
 meeting of trustees and overseers, and action taken by them, 112-115. 
 powers of a, in mother-country, under a charter, 433-435. 
 (See Dartmouth College ; Memorial.) 
 
 WASHINGTON, BUSHROD, 
 
 Jefferson's favorable opinion of, 319. 
 
 sketch of, 317-319. 
 
 opinion of, in Trustees v. Woodward, 319, 322. 
 
 opinion of, in Golden v. Prince, 320-322. 
 WEBSTER, DANIEL, 
 
 his gifts, skill, knowledge of men and the court at Washington; posi- 
 tion he supposed Marshall v/ould take, 4. 
 
 his plan for getting the questions properly before the Supreme Court at 
 Washington, 5-7. 
 
 accepts retainer from Wheelock, but fails to act, 86-89, 
 
 reasons therefor, 91, 92, 94. 
 
 professional relations with Wheelock ended, and another clause, by con- 
 struction, added to the Constitution of the United States, 94.
 
 INDEX. 465 
 
 WEBSTER, DANIEL — Continued. 
 
 plans of, for college at Concord to delay legislative action, 103, 104. 
 
 made barrister-at-law, 152. 
 
 at Exeter, 153. 
 
 argument and peroration at Exeter, 186. 
 
 main point relied on by, not before court at time of argument in 
 
 Trustees v. "Woodward, 201. 
 devises means to get cases from Circuit Court to Washington ; furnishes 
 
 brief to Story, 201. 
 three-fourths of argument of, at Washington on questions not before the 
 
 court, 207. 
 his argument at Washington, 208. 
 source of argument, 209-212. 
 
 advised of Pinkney's connection with College causes, 233. 
 Webster, 236, 237. 
 
 portion of argument of, omitted in Earrar's Report, 237. 
 familiar with inner workings of court, 240. 
 his reasons for pressing causes in Circuit Court, 241. 
 (See John Wheelock ; Investigation; Letters; Pinkney.) 
 WENTWORTH, JOHN, 
 
 Dartmouth's chief benefactor ; institution should have borne his name ; 
 
 his name for institution proposed by Wheelock, 36. 
 intended to put college on same footing as universities in England, 
 
 37, 60. 
 Episcopal views of, 66. 
 
 (See Grants.) 
 WHEELER, JOHN B., 
 
 offers one thousand dollars with which to test rights of old trustees, 125. 
 
 WHEELOCK, ELEAZAR, 
 
 graduated at Yale ; settled at Lebanon, Connecticut ; salary ; power and 
 
 zeal ; opens a school, 21. 
 narratives of, 21, 22, 38, 39, 60. 
 
 death; will; bequest to Moor's Indian Charity-School; bequest to col- 
 lege, 44. 
 differences between, and Dr. Bellamy, 69, 81. 
 position of, in relation to funds, 416-419. 
 (Bee Moor's Indian Charity-School ; Dartmouth College ; Memorial ; 
 
 Letters.) 
 WHEELOCK, JOHN, 
 
 student at Yale ; familiar with troubles of President Clap, 8. 
 succeeds his father as president of the college ; holds his office for thirty- 
 six years ; devotion to college ; intended to make it virtually his heir ; 
 some of his ciiaracteristics, 65. 
 treatment by the Federalists and "standing order," 76. 
 inherits his father's views, 81. 
 
 supported by majority of trustees till 1809 ; no friend of his elected to 
 board after that, 84, 85. 
 
 30
 
 466 INDEX. 
 
 WHjSELOCK, JOHN — Continued. 
 
 proposes to institute legal proceedings against trustees ; applies, through 
 a friend, to Webster for professional assistance ; Webster promises it ; 
 consults him personally, 86. 
 
 retains and pays him, 86-89. 
 
 removal of, 97-101. 
 
 reasons of removal assigned by trustees, 97-100. 
 
 protest of Judge Jacob and Gov. Gilman against removal, 100. 
 
 reinstated, 136. 
 
 death of; gives forty thousand dollars to university, 141. 
 (See Letters ; Presbyterians ; Trustees ; College Controversies. 
 WHIPPLE'S TOLERATION ACT, 
 
 the result of, the seven years' war with the standing order, 75, 79. 
 
 amendment proposed by Whipple, 80. 
 WILSON, JAMES, 
 
 knew meaning of obligation clause, 206, 214-217. 
 
 probable author of it, 217. 
 
 sketch of, 220. 
 
 extract from lectures on "General Principles of Law and Obligation," 
 and "Corporations," 220-222. 
 
 defines a "State," 222. 
 
 argued case of Bank of North America, 223, 224. 
 
 made professor of law, 225. 
 WIRT, WILLIAM, 
 
 sketch of, 234-236. 
 
 on bad terms with Pinkney, 245, 246. 
 
 (See Letters.) 
 WOODBURY, LEVL 
 
 sketch of, 149, 150. 
 WOODWARD, WILLIAM H., 
 
 removal of, 114, 116. 
 
 appointed secretary and treasurer by new board, 114. 
 
 demand made upon, for charter, etc., 116, 117. 
 
 grounds of refusal to give them up, 117, 118. 
 
 death of, 258.
 
 TABLE OF GASES. 
 
 Adams v. Storey, 
 
 
 257 
 
 Allen V. College, 
 
 
 3.298 
 
 Allen, Marsh v., 3, 
 
 282, 
 
 283, 284 
 
 Allen V. McKeen, 350, 
 
 354, 
 
 357, 3G2, 
 39-3 
 
 Andover, Spaulding v.. 
 
 
 326 
 
 Anonymous, 
 
 
 74, 73 
 
 Babcock, Crease v., 
 
 
 430 
 
 Bagg's Case, 
 
 
 159, 1G6 
 
 Bank of North America 
 
 
 228 
 
 Bank, Osborn v., 
 
 
 356, 373 
 
 Bank v. Sharp, 
 
 
 437 
 
 Baptist Association v. Hart's 
 
 Ex- 
 
 ecutors, 
 
 
 203, 412 
 
 Bean, Kelley v., 
 
 
 71 
 
 Bevans, United States v. 
 
 > 
 
 348 
 
 Biddle, Green v., 
 
 
 314 
 
 Bingbampton Bridge Case, 
 
 436 
 
 Blackbird Creek Co., Wilson v., 
 
 
 
 388, 339 
 
 Boston Beer Co. v. Massachusetts, 
 
 
 
 443, 444 
 
 Briscoe v. Bank, 
 
 357, 
 
 372, 399 
 
 Brown v. Bank, 
 
 
 185 
 
 Brown v. Maryland, 
 
 
 411 
 
 Bullard v. Bell, 
 
 204 
 
 240, 394 
 
 Bury, Phillips v., 160, 
 
 178, 
 
 183, 317, 
 
 324, 325, 
 
 362 
 
 363, 366 
 
 Butler V. Pennsylvania, 
 
 
 354 
 
 Canter, Insurance Co. v., 403 
 
 Charles Kiver Bridge v. "Warren 
 Bridge, 246, 255, 316, 322, 324, 367, 
 368, 369, 398, 399, 405, 405, 436, 444 
 Charleston, Murray v., 313, 443 
 
 Chisholm v. Georgia, 225, 346, 348, 372 
 Christy, ex parte, 342, 344, 392 
 
 Cohens v. Virginia, 372, 389, 394 
 
 Colchester v. Seaber, 166 
 
 Cole, Horn v., 406 
 
 College, Allen v., 3, 298 
 
 Company v. Debolt, 305 
 
 Cook V. Moffatt, 308 
 
 Craig V. Missouri, 372, 433 
 
 Crease v. Babcock, 430 
 
 Crowninshield, Sturges v., 203, 217, 
 227, 240, 305, 306, 307, 314, 315, 316, 
 320, 326, 396, 401, 409 
 
 Davidson v. New Orleans, 
 Debolt, Company v., 
 
 Earl Ferrers, Eex v., 
 Edwards v. Kerzey, 
 Emerson, Kittredge v., 
 Emmet's Case, 
 
 193 
 303 
 
 393 
 
 206, 443 
 342 
 255 
 
 Farrington v. Tennessee, 443 
 
 Fletcher v. Peck, 131, 166, 180, 192, 
 
 249, 312, 319, 322, 325, 370, 399, 400, 
 
 401, 403, 404, 406, 409, 421, 422, 424, 
 
 425, 427, 429, 436, 444 
 
 Foster, ex parte, 341, 342, 343, 444 
 
 French, Kidder v., 71 
 
 Georgia, Chisholm v., 225, 
 
 Gibbons v. Ogden, 386, 396, 
 Gilbert, Pierce v., 3, 282, 
 Gilman v. Philadelphia, 
 Golden V. Prince, 
 Granger Cases, 435, 436, 438, 
 
 Green v. Biddle, 
 Griswold, Hepburn v., 
 Guestier, Hudson v.. 
 
 346, 348, 
 372 
 
 399, 411 
 
 283, 284 
 399 
 320 
 
 439, 443, 
 444 
 314 
 40O 
 GIO 
 
 (4.07)
 
 4G8 
 
 TABLE OF CASES. 
 
 Haile, Mason v., 306 
 
 Hart's Executors, Baptist Associ- 
 
 ation v., 
 
 203 
 
 412 
 
 Hatch V. Lang, 
 
 3, 282, 
 
 283 
 
 Hepburn v. Griswold, 
 
 
 430 
 
 Hicks V. Hotchkiss, 
 
 
 307 
 
 Horn V. Cole, 
 
 
 406 
 
 Hudson V. Guostier, 
 
 
 310 
 
 Hunter's Lessee, Martin v. 
 
 > 
 
 347 
 
 Illinois, Munn v. 
 
 438, 
 
 439 
 
 Insurance Co. v. Canter, 
 
 
 403 
 
 
 206, 
 
 443 
 
 71 
 
 
 166, 
 
 182 
 342 
 
 340, 
 
 341, 
 
 342 
 425 
 
 3, 
 
 282, 
 
 283 
 166 
 430 
 166 
 
 Jackson v. Steamboat Magnolia, 366 
 Jenness, Peck v., 444 
 
 Keliey v. Bean, 
 Kerze}-, Edwards v., 
 Kidder v. Frencb, 
 King V. Pasmore, 
 Kittredge v. Emerson, 
 Kittredge v. Warren, 
 
 Lane Countj' r. Oregon, 
 Lang, Hatch v., 
 Larwoad, Rex v., 
 Legal-Tender Cases, 
 Lutterell's Case, 
 
 Marbury v. iMadison, 207, 308, 386, 
 389, 392, 393 
 Marsh v. Allen, 3, 282, 283, 284 
 
 Martin v. Hunter's Lessee, 347 
 
 Martin v. Mott, 339, 341 
 
 Maryland, Brown v., 411 
 
 Massachusetts, Boston Beer Co. v., 
 
 443, 444 
 Massachusetts, Rhode Island v., 306 
 Mason v. Haile, 306 
 
 Matthewson, Satterlee v., 319 
 
 Mayor v. Miln, 399 
 
 McCulloch V. Maryland, 358, 411 
 
 McKeen, Allen v., 350, 354, 357, 362, 
 
 396 
 Merrill v. Sherburne, 16 
 
 Milton V. Spateman, 166 
 
 Missouri, Craig v., 372, 433 
 
 Moffatt, Cook v., 306 
 
 Moore v. Poole, 71 
 
 Moore v. Robbins, 313 
 
 Munn V. Illinois, 438, 439 
 
 Murray v. Charleston, 313, 443 
 
 New Jersey v. Wilson, 166 
 
 New Jersey v. Yard, 443, 444 
 
 New Orleans, Davidson v., 193 
 
 North America, Bank of, 223 
 
 Ogden, Gibbons v., 386, 396, 399, 411 
 Ogden V. Saunders, 203, 218, 257, 266, 
 267, 306, 307, 314, 316, 326, 345, 395, 
 396, 399, 411, 422, 424, 431, 444 
 Oregon, Lane County v., 425 
 
 Osborn v. Bank, 356, 373 
 
 O wings V. Speed, 427, 429 
 
 Pasmore, King v., 166, 182 
 
 Pawlet, Society v., 404 
 
 Peck V. Jenness, 344 
 
 Peck, Fletcher v., 131, 166, 180, 192, 
 
 249, 312, 322, 325, 370, 399, 400, 401, 
 
 403, 404, 406, 409, 421, 422, 424, 425, 
 
 427, 429, 436, 444 
 
 Pennsylvania, Butler v., 354 
 
 Philadelphia, Gilman v., 399 
 
 Phillips V. Bury, 160, 178, 183, 317, 
 
 324, 325, 362, 363, 386 
 
 Pierce v. Gilbert, 3, 282, 283, 284 
 
 "Pig Case," 391 
 
 Poole, Moore v., 71 
 
 Prince, Golden v., 320 
 
 Rex V. Earl Ferrers, 393 
 
 Rex V. Larwoad, 166 
 
 Rex V. Richardson, 166 
 
 Rhode Island v. Massachusetts, 306 
 
 Robbins, Moore v., 313 
 
 Robbins v. Shaw, 306 
 
 Satterlee v. Matthewson, 319 
 
 Saunders, Ogden v., 206, 218, 257, 266, 
 267, 306, 307, 314, 316, 326, 345, 395, 
 396, 399, 411, 422, 424, 431, 444 
 Scott V. Sandford, 374 
 
 Seaber, Colchester v., 166 
 
 Sharp, Bank v., 437
 
 TABLE OF CASES. 
 
 4()9 
 
 Shaw, Robbins v., 306 
 
 Sherburne, Merrill v., 16 
 
 Society v. Pawlet, 404 
 
 South Ottawa Bond Case, 444 
 
 Spateman, Milton v., 166 
 
 Rpaulding v. Andover, 326 
 
 Speed, Owings v., 427, 429 
 
 Steamboat Magnolia, Jackson v., 356 
 Stone V. Wisconsin, 489 
 
 Storey, Adams v., 257 
 
 Sturges u. Crowninshield, 203,217, 
 227, 240, 305, 306, 307, 314, 315, 316, 
 320, 326, 396, 401, 409 
 Sutton's Hospital, 359 
 
 Tennessee, Farrington v., 443 
 
 Terrett v. Taylor, 186, 325, 395, 404 
 
 Texas v. White, 425 
 
 Trustees v. Woodward, 1, 16, 125, 127, 
 
 145, 151, 187, 193, 200, 201, 206, 216, 
 
 217, 227, 228, 229, 233, 238, 244, 249, 
 
 250, 284, 292, 298, 302, 305, 326, 848, 
 
 350, 353, 354, 355, 356, 358, 369, 395, 
 
 398, 399, 404, 409, 411, 413, 422, 423, 
 
 427, 429, 433, 435, 436, 437, 439, 440, 
 
 442, 443, 444 
 
 United States v. Bevans, 
 Virginia, Cohens v. 
 
 348 
 372, 389, 394 
 
 Walker v. Whitehead, 397 
 
 Warren Bridge, Charles River 
 Bridge v., 246, 255, 316, 322, 324, 
 367, 368, 369, 396, 399, 405, 406, 436, 
 
 444 
 Warren, Kittredge v., 340, 341, 342 
 White, Texas v., 425 
 
 Wilson V. Blackbird Creek Co., 
 
 386, 399 
 
 Wilson, New Jersey v., 166 
 
 Wisconsin, Stone v., 439 
 
 Woodward, Trustees v.,1, 16, 125, 127, 
 
 145, 151, 187, 193, 200, 201, 206, 216, 
 
 217, 227, 223, 229, 233, 238, 244, 249, 
 
 250, 284, 292, 298, 302, 305, 326, 348, 
 
 350, 358, 354, 355, 356, 358, 369, 395, 
 
 398, 399, 404, 409, 411, 413, 422, 423, 
 
 427, 429, 433, 435, 436, 437, 439, 440, 
 
 442, 443, 444 
 
 Yard, New Jersey v., 443, 444 
 
 Zacharie, Boyle v., 306
 
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