John M. (John Major) Shirley.

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UNIVERSITY

OF CALIFORNIA

LOS ANGELES



SCHOOL OF LAW
LIBRARY



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Walter a. McclUre



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THE



DARTMOUTH COLLEGE



CAUSES



AND THE



SUPREME COURT OF THE UNITED STATES.



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By JOHN M. SHIRLEY. ^^^^^



ST. LOUIS:
REVIEW PUBLISHING CO.

1895.



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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



Online LibraryJohn M. (John Major) ShirleyThe Dartmouth College causes and the Supreme Court of the United States → online text (page 1 of 39)