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Nothing suspicious was observed in their manner or conver
sation. Is it probable they would thus come unconcernedly into
the company of others, from a field of robbery, and, as they
must have supposed, of murder, before they could have ascer
tained whether the stain of blood was not on their garments ?
They remained in the place a part of the next day. The town
was alarmed ; a strict inquiry was made of all strangers, and
of the defendants among others. Nothing suspicious was dis
covered. They avoided no inquiry, nor did they leave the town
in any haste. The jury has had an opportunity of seeing the
defendants. Does their general appearance indicate that har
dihood which would enable them to act this cool, unconcerned
part ? Is it not more likely they would have fled ?



DEFENCE OF THE KENNISTONS. 461

From the time of the robbery to the arrest, five or six
weeks, the defendants were engaged in their usual occupations.
They are not found to have passed a dollar of money to any
body. They continued their ordinary habits of labor. No man
saw money about them, nor any circumstance that might lead
to a suspicion that they had money. Nothing occurred tending
in any degree to excite suspicion against them. When arrest
ed, and when all this array of evidence was brought against them,
and when they could hope in nothing but their innocence, im
munity was offered them again if they would confess. They
were pressed, and urged, and allured, by every motive which
could be set before them, to acknowledge their participation in
the offence, and to bring out their accomplices. They steadily
protested that they could confess nothing because they knew
nothing. In defiance of all the discoveries made in their house,
they have trusted to their innocence. On that, and on the can
dor and discernment of an enlightened jury, they still rely.

If the jury are satisfied that there is the highest improbability
that these persons could have had any previous knowledge of
Goodridge, or been concerned in any previous concert to rob
him ; if their conduct that evening and the next day was marked
by no circumstances of suspicion ; if from that moment until
their arrest nothing appeared against them ; if they neither
passed money, nor are found to have had money ; if the man
ner of the search of their house, and the circumstances attending
it, excite strong suspicions of unfair and fraudulent practices ;
if, in the hour of their utmost peril, no promises of safety could
draw from the defendants any confession affecting themselves
or others, it will be for the jury to say whether they can pro
nounce them guilty.



39



THE DARTMOUTH COLLEGE CASE;



THE action, The Trustees of Dartmouth College vs. William H. Wood
ward, was commenced in the Court of Common Pleas, Grafton County,
State of New Hampshire, February term, 1817. The declaration was
trover for the books of record, original charter, common seal, and
other corporate property of the College. The conversion was alleged to
have been made on the 7th day of October, 1816. The proper pleas
were filed, and by consent the cause was carried directly to the Supe
rior Court of New Hampshire, by appeal, and entered at the May
term, 1817. The general issue was pleaded by the defendant, and
joined by the plaintiffs. The facts in the case were then agreed upon
by the parties, and drawn up in the form of a special verdict, reciting
the charter of the College and the acts of the legislature of the State,
passed June and December, 1816, by w^hich the said corporation of
Dartmouth College was enlarged and improved^ and the said charter
amended.

The question made in the case was, whether those acts of the legisla
ture were valid and binding upon the corporation, without their accept
ance or assent, and not repugnant to the Constitution of the United
States. If so, the verdict found for the defendants ; otherwise, it found
for the plaintiffs.

The cause was continued to the September term of the court in
Rockingham County, where it was argued ; and at the November term
of the same year, in Grafton County, the opinion of the court was deliv
ered by Chief Justice Richardson, in favor of the validity and constitu
tionality of the acts of the legislature ; and judgment was accordingly
entered for the defendant on the special verdict.

Thereupon a writ of error was sued out by the original plaintiffs, to
remove the cause to the Supreme Court of the United States ; where it

* Argument before the Supreme Court of the United States, at Washington,
on the 10th of March, 1818.



THE DARTMOUTH COLLEGE CASE. 463

was entered at the term of the court holden at Washington on the first
Monday of February, 1818.

The cause came on for argument on the 10th day of March, 1818,
before all the judges. It was argued by Mr. Webster and Mr. Hopkin-
son for the plaintiffs in error, and by Mr. Holmes and the Attorney-Gen
eral (Wirt) for the defendant in error.

At the term of the court holden in Februaiy, 1819, the opinion of the
judges was delivered by Chief Justice Marshall, declaring the acts of the
legislature unconstitutional and invalid, and reversing the judgment of
the State court. The court, with the exception of Mr. Justice Duvall,
were unanimous.

The following was the argument of Mr. Webster for the plaintiffs in
error.

THE general question is, whether the acts of the legislature
of New Hampshire of the 27th of June, and of the 18th and 26th
of December, 1816, are valid and binding on the plaintiffs, ivith-
out their acceptance or assent.

The charter of 1769 created and established a corporation,
to consist of twelve persons, and no more; to be called the
" Trustees of Dartmouth College." The preamble to the charter
recites, that it is granted on the application and request of the
Rev. Eleazer Wheelock: That Dr. Wheelock, about the year
1754, established a charity school, at his own expense, and on
his own estate and plantation : That for several years, through
the assistance of well-disposed persons in America, granted at his
solicitation, he had clothed, maintained, and educated a number
of native Indians, and employed them afterwards as missiona
ries and schoolmasters among the savage tribes : That, his de
sign promising to be useful, he had constituted the Rev. Mr.
Whitaker to be his attorney, with power to solicit contributions,
in England, for the further extension and carrying on of his un
dertaking; and that he had requested the Earl of Dartmouth,
Baron Smith, Mr. Thornton, and other gentlemen, to receive
such sums as might be contributed, in England, towards sup
porting his school, and to be trustees thereof, for his charity ;
which these persons had agreed to do : That thereupon Dr.
Wheelock had executed to them a deed of trust, in pursuance
of such agreement between him and them, and, for divers good
reasons, had referred it to these persons to determine the place
in which the school should be finally established : And, to ena-



464 THE DARTMOUTH COLLEGE CASE.

ble them to form a proper decision on this subject, had laid be
fore them the several offers which had been made to him by the
several governments in America, in order to induce him to set
tle and establish his school within the limits of such govern
ments for their own emolument, and the increase of learning in
their respective places, as well as for the furtherance of his gen
eral original design : And inasmuch as a number of the pro
prietors of lands in New Hampshire, animated by the example
of the Governor himself and others, and in consideration that,
without any impediment to its original design, the school might
be enlarged and improved, to promote learning among the Eng
lish, and to supply ministers to the people of that Province, had
promised large tracts of land, provided the school should be es
tablished in that Province, the persons before mentioned, having
weighed the reasons in favor of the several places proposed, had
given the preference to this Province, and these offers : That Dr.
Wheelock therefore represented the necessity of a legal incor
poration, and proposed that certain gentlemen in America,
whom he had already named and appointed in his will to be
trustees of his charity after his decease, should compose the
corporation. Upon this recital, and in consideration of the laud
able original design of Dr. Wheelock, and willing that the best
means of education be established in New Hampshire, for the
benefit of the Province, the king granted the charter, by the ad
vice of his Provincial Council.

The substance of the facts thus recited is, that Dr. Wheelock
had founded a charity, on funds owned and procured by him
self; that he was at that time the sole dispenser and sole ad
ministrator, as well as the legal owner, of these funds ; that he
had made his will, devising this property in trust, to contin
ue the existence and uses of the school, and appointed trus
tees ; that, in this state of things, he had been invited to fix his
school, permanently, in New Hampshire, and to extend the de
sign of it to the education of the youth of that Province ; that
before he removed his school, or accepted this invitation, which
his friends in England had advised him to accept, he applied for
a charter, to be granted, not to whomsoever the king or govern
ment of the Province should please, but to such persons as he
named and appointed, namely, the persons whom he had already
appointed to be the future trustees of his charity by his will.



THE DARTMOUTH COLLEGE CASE. 465

The charter, or letters patent, then proceed to create such a
corporation, and to appoint twelve persons to constitute it, by
the name of the " Trustees of Dartmouth College " ; to have
perpetual existence, as such corporation, and with power to
hold and dispose of lands and goods, for the use of the college,
with all the ordinary powers of corporations. They are in their
discretion to apply the funds and property of the college to the
support of the president, tutors, ministers, and other officers of
the college, and such missionaries and schoolmasters as they
may see fit to employ among the Indians. There are to be
twelve trustees for ever, and no more ; and they are to have the
right of filling vacancies occurring in their own body. The Rev.
Mr. Wheelock is declared to be the founder of the college, and
is, by the charter, appointed first president, with power to ap
point a successor by his last will. All proper powers of gov
ernment, superintendence, and visitation are vested in the trus
tees. They are to appoint and remove all officers at their dis
cretion ; to fix their salaries, and assign their duties ; and to
make all ordinances, orders, and laws for the government of the
students. To the end that the persons who had acted as depos
itaries of the contributions in England, and who had also been
contributors themselves, might be satisfied of the good use of
their contributions, the president was annually, or when required,
to transmit to them an account of the progress of the institution
and the disbursements of its funds, so long as they should con
tinue to act in that trust. These letters patent are to be good
and effectual, in law, against the king, his heirs and successors
for ever) without further grant or confirmation ; and the trus
tees are to hold all and singular these privileges, advantages,
liberties, and immunities to them and to their successors for ever.

No funds are given to the college by this charter. A corpo
rate existence and capacity are given to the trustees, with the
privileges and immunities which have been mentioned, to ena
ble the founder and his associates the better to manage the funds
which they themselves had contributed, and such others as they
might afterwards obtain.

After the institution thus created and constituted had existed,
uninterruptedly and usefully, nearly fifty years, the legislature
of New Hampshire passed the acts in question.

The first act makes the twelve trustees under the charter, and



466 THE DARTMOUTH COLLEGE CASE.

nine other individuals, to be appointed by the Governor and
Council, a corporation, by a new name ; and to this new corpo
ration transfers all the property, rights, powers, liberties, and priv
ileges of the old corporation ; with further power to establish
new colleges and an institute, and to apply all or any part of
the funds to these purposes; subject to the power and control
of a board of twenty-five overseers, to be appointed by the
Governor and Council.

The second act makes further provisions for executing the
objects of the first, and the last act authorizes the defendant,
the treasurer of the plaintiffs, to retain and hold their property,
against their will.

If these acts are valid, the old corporation is abolished, and a
new one created. The first act does, in fact, if it can have any
effect, create a new corporation, and transfer to it all the prop
erty and franchises of the old. The two corporations are not
the same, in any thing which essentially belongs to the exist
ence of a corporation. They have different names, and differ
ent powers, rights, and duties. Their organization is wholly
different. The powers of the corporation are not vested in the
same, or similar hands. In one, the trustees are twelve, and no
more. In the other, they are twenty-one. In one, the power is
in a single board. In the other, it is divided between two
boards. Although the act professes to include the old trustees
in the new corporation, yet that was without their assent, and
against their remonstrance ; and no person can be compelled to
be a member of such a corporation against his will. It was
neither expected nor intended that they should be members of
the new corporation. The act itself treats the old corporation
as at an end, and, going on the ground that all its functions
have ceased, it provides for the first meeting and organization
of the new corporation. It expressly provides, also, that the
new corporation shall have and hold all the property of the old ;
a provision which would be quite unnecessary upon any other
ground, than that the old corporation was dissolved. But if it
could be contended that the effect of these acts was not entirely
to abolish the old corporation, yet it is manifest that they impair
and invade the rights, property, and powers of the trustees un
der the charter, as a corporation, and the legal rights, privileges,
and immunities which belong to them, as individual members
of the corporation.



THE DARTMOUTH COLLEGE CASE. 467

The twelve trustees were the sole legal owners of all the
property acquired under the charter. By the acts, others are
admitted, against their will, to be joint owners. The twelve
individuals who are trustees were possessed of all the fran
chises and immunities conferred by the charter. By the acts,
nine other trustees and twenty-five overseers are admitted,
against their will, to divide these franchises and immunities
with them.

If, either as a corporation or as individuals, they have any
legal rights, this forcible intrusion of others violates those rights,
as manifestly as an entire and complete ouster and disposses
sion. These acts alter the whole constitution of the corporation.
They affect the rights of the whole body as a corporation, and
the rights of the individuals who compose it. They revoke
corporate powers and franchises. They alienate and transfer
the property of the college to others. By the charter, the trus
tees had a right to fill vacancies in their own number. This is
now taken away. They were to consist of twelve, and, by ex
press provision, of no more. This is altered. They and their
successors, appointed by themselves, were for ever to hold the
property. The legislature has found successors for them, before
their seats are vacant. The powers and privileges which the
twelve were to exercise exclusively, are now to be exercised by
others. By one of the acts, they are subjected to heavy penal
ties if they exercise their offices, or any of those powers and
privileges granted them by charter, and which they had exer
cised for fifty years. They are to be punished for not accepting
the new grant, and taking its benefits. This, it must be con
fessed, is rather a summary mode of settling a question of con
stitutional right. Not only are new trustees forced into the
corporation, but new trusts and uses are created. The college
is turned into a university. Power is given to create new col
leges, and, to authorize any diversion of the funds which may
be agreeable to the new boards, sufficient latitude is given by
the undefined power of establishing an institute. To these
new colleges, and this institute, the funds contributed by the
founder, Dr. Wheelock, and by the original donors, the Earl of
Dartmouth and others, are to be applied, in plain and manifest
disregard of the uses to which they were given.

The president, one of the old trustees, had a right to his office,



468 THE DARTMOUTH COLLEGE CASE.

salary, and emoluments, subject to the twelve trustees alone.
His title to these is now changed, and he is made accountable
to new masters. So also all the professors and tutors. If the
legislature can at pleasure make these alterations and changes
in the rights and privileges of the plaintiffs, it may, with equal
propriety, abolish these rights and privileges altogether. The
same power which can do any part of this work can accom
plish the whole. And, indeed, the argument on which these
acts have been hitherto defended goes altogether on the ground,
that this is such a corporation as the legislature may abolish at
pleasure ; and that its members have no rights, liberties, fran
chises, property, or privileges, which the legislature may not re
voke, annul, alienate, or transfer to others, whenever it sees fit.

It will be contended by the plaintiffs, that these acts are not
valid and binding on them, without their assent,

1. Because they are against common right, and the Constitu
tion 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 decid
ed 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 those fundamental principles introduced into the
State governments for the purpose of limiting the exercise of
the legislative power, and which the Constitution of New Hamp
shire 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 Constitution 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 effect and object are 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 jus
tify the taking away of vested rights there must be a forfeiture,

* Calder et ux. v. Bull, 3 Dallas, 386.



THE DARTMOUTH COLLEGE CASE. 469

to adjudge upon and declare which is the proper province of the
judiciary. Attainder and confiscation are acts of sovereign
power, not acts of legislation. The British Parliament, among
other unlimited powers, claims that of altering and vacating
charters ; not as an act of ordinary legislation, but of uncon
trolled authority. It is theoretically omnipotent. Yet, in
modern times, it has very rarely attempted the exercise of this
power. In a celebrated instance, those who asserted this power
in Parliament vindicated its exercise only in a case in which it
could be shown, 1st. That the charter in question w^as a charter
of political power ; 2d. That there was a great and overruling
state necessity, justifying the violation of the charter; 3d. That
the charter had been abused and justly forfeited.* The bill af
fecting this charter did not pass. Its history is well known.
The act which afterwards did pass, passed with the assent of the
corporation. Even in the worst times, this power of Parliament
to repeal and rescind charters has not often been exercised. The
illegal proceedings in the reign of Charles the Second were
under color of law. Judgments of forfeiture were obtained in
the courts. Such was the case of the quo warranto against the
city of London, and the proceedings by which the charter of
Massachusetts was vacated.

The legislature of New Hampshire has no more power over
the rights of the plaintiffs than existed somewhere, in some de
partment of government, before the Revolution. The British
Parliament could not have annulled or revoked this grant as
an act of ordinary legislation. If it had done it at all, it could
only have been in virtue of that sovereign power, called om
nipotent, which does not belong to any legislature in the United
States. The legislature of New Hampshire has the same power
over this charter which belonged to the king who granted it,
and no more. By the law of England, the power to create cor
porations is a part of the royal prerogative.! By the Revolu
tion, this power may be considered as having devolved on the
legislature of the State, and it has accordingly been exercised
by the legislature. But the king cannot abolish a corporation,
or new-model it, or alter its powers, without its assent. This

* Annual Register, 1784, p. 160 ; Parl. Reg. 1783 ; Mr. Burke s Speech on
Mr. Fox s East India Bill, Burke s Works, Vol. II. p. 414, 417, 467, 468, 486..
f 1 Black. 472, 473.

VOL. V. 40



470 THE DARTMOUTH COLLEGE CASE.

is the acknowledged and well-known doctrine of the common
law. " Whatever might have been the notion in former times,"
says Lord Mansfield, " it is most certain now that the corpora
tions of the universities are lay corporations; and that the
crown cannot take away from them any rights that have been
formerly subsisting in them under old charters or prescriptive
usage." * After forfeiture duly found, the king may regrant the
franchises ; but a grant of franchises already granted, and of
which no forfeiture has been found, is void.

Corporate franchises can only be forfeited by trial and judg-
ment.f In case of a new charter or grant to an existing cor
poration, it may accept or reject it as it pleases. J It may ac
cept such part of the grant as it chooses, and reject the rest,
In the very nature of things, a charter cannot be forced upon
any body. No one can be compelled to accept a grant ; and
without acceptance the grant is necessarily void. || It cannot
be pretented that the legislature, as successor to the king in
this part of his prerogative, has any power to revoke, vacate, or
alter this charter. If, therefore, the legislature has not this
power by any specific grant contained in the constitution ; nor
as included in its ordinary legislative powers ; nor by reason of
its succession to the prerogatives of the crown in this particu
lar, on what ground would the authority to pass these acts
rest, even if there were no prohibitory clauses in the constitu
tion and the Bill of Rights ?

But there are prohibitions in the constitution and Bill of
Rights of New Hampshire, introduced for the purpose of limit
ing the legislative power and protecting the rights and prop
erty of the citizens. One prohibition is " that no person
shall be deprived of his property, immunities, or privileges, put
out of the protection of the law, or deprived of his life, lib
erty, or estate, but by judgment of his peers or the law of the
land."

In the opinion, however, which was given in the court be
low, it is denied that the trustees under the charter had any



* 3 Burr. 1656. f King v. Pasmore, 3 Term Rep. 244.

| King v. Vice-Chancellor of Cambridge, 3 Burr. 1656 ; 3 Term Rep. 240.
Lord Kenyon.



& 3^ Burr. 1661, and King v. Pasmore, ubi supra.



Ellis v, Marshall, 2 Mass. Rep. 277 ; 1 Kyd on Corporations, 65, 66.



THE DARTMOUTH COLLEGE CASE. 471

property, immunity, liberty, or privilege in this corporation,
within the meaning of this prohibition in the Bill of Rights. It
is said that it is a public corporation and public property ; that
the trustees have no greater interest in it than any other indi
viduals ; that it is not private property, which they can sell or
transmit to their heirs, and that therefore they have no interest



Online LibraryDaniel WebsterThe works of Daniel Webster (Volume 05) → online text (page 45 of 53)