Backstage at Dartmouth College

WALKER LEWIS

For most of us, mention of the Dartmouth College case brings to mind Daniel Webster's emotional peroration, and especially the line: "It is, Sir, a small college, yet there are those who love it."

The popular folklore is that Webster's eloquence swept the Justices off their feet and saved the day for his alma mater. Pretty as is the story, the truth is otherwise. Webster's peroration had no more than a passing effect on the Court. It was like the strawberry embosomed in whipped cream at the center of a shortcake. It added immeasurably to the lusciousness of the image, but it had nothing to do with the cookery.

The result was the product of hard work, skillful maneuvering and persistent pressure, some of which probably would be considered unethical by present-day standards. In addition, without realizing it at the time, Webster had the good fortune to offer Chief Justice Marshall an opportunity that he coveted. Indeed, Webster had misjudged his own case and thought he might lose on the very point that brought victory.

Dartmouth College had its origin in Moor's Indian Charity School in Lebanon, Connecticut, organized and conducted by the Rev. Eleazar Wheelock. One of his pupils, a Mohegan Indian named Samson Occum, developed into such an excellent scholar and preacher that Wheelock sent him to England on a fund-raising expedition. It was a shrewd move. Britishers donated some eleven thousand pounds sterling, which was turned over to the Earl of Dartmouth as President of the Board of Trade and Foreign Plantations. The Earl's personal contribution was fifty pounds, a bargain price for immortalization. Not even John Harvard did so well; his glorification as a college progenitor cost 375 pounds and a 400-volume library.

On December 13, 1768, John Wentworth, Royal Governor of New Hampshire, granted a charter to Dartmouth College. This vested corporate power in a self-perpetuating board of twelve trustees, and named Wheelock as president with the right of designating his successor by will. In addition, the Province of New Hampshire donated 25,247 acres of land. Later, according to John M. Shirley's history of the case, the state gave further land to the College, including an eight square mile township in 1789 and a six square mile township in 1807. Vermont also made a substantial gift.

In 1807 Eleazar died, appointing his son John Wheelock in his place. The son was a difficult person, and friction developed with the trustees. The differences were primarily personal, but by 1815 they had intensified into a feud. In that year Wheelock published an anonymous attack against the trustees, which he circulated among the Republican members of the New Hampshire legislature. This converted the dispute into a political issue. The trustees thereupon dismissed Wheelock, as was their right under the charter. In his place they appointed the Rev. Francis Brown.

Next year the Republicans swept the state, electing the Governor and gaining control of the legislature. They then amended the Dartmouth charter so as to increase the number of trustees from twelve to twenty-one and to superimpose a board of overseers with veto power. They also changed the name to "Dartmouth University." The Governor was empowered to fill vacancies, and his selections converted Dartmouth into a Republican-dominated state institution.

Eight of the old trustees, who came to be known collectively as the "Octagon," resolved to fight.1 On February 8, 1817, they brought suit to recover the corporate seal and other property from William H. Woodward, the former secretary and treasurer, who had sided with Wheelock.2

As Woodward was chief judge of the local court, the case was taken directly to the Superior Court of New Hampshire, then the state's highest. It too had just been reorganized, and all three of its judges were now Republicans: William Merchant Richardson, Samuel Bell, and Levi Woodbury. They were men of ability, and the last was later a Justice of the U.S. Supreme Court. But party lines were sharply drawn, and Republican doctrine strongly supported the right of the legislature to exercise control. On July 21, 1816, Thomas Jefferson had written Governor Plumer to express his approval of the take-over, saying:

"The idea that institutions established for the use of the nation cannot be touched or modified . . . . is most absurd. . . . Yet our lawyers and priests generally inculate this doctrine, and suppose . . . that the earth belongs to the dead and not the living."3

The College retained able and zealous counsel: Jeremiah Smith, who until the 1816 reorganization had been Chief Judge of the New Hampshire court; Jeremiah Mason, one of the outstanding lawyers of his day; and Daniel Webster. In their suit against Woodward they relied principally upon the New Hampshire Constitution, which prohibited the taking of property except pursuant to "the law of the land." This necessarily meant, they said, that vested rights could not arbitrarily be destroyed, and that the charter rights of the trustees could not be taken away except by a judicial proceeding based upon adequate justification. To give themselves a ground for possible appeal to the U.S. Supreme Court, they also claimed that the legislative action violated the Contract Clause of the U.S. Constitution.

On November 6, 1817, the New Hampshire court brushed these points aside. In a powerful opinion Chief Judge Richardson held that "A corporation, all of whose franchises are exercised for publick purposes, is a publick corporation." This definition necessarily made Dartmouth "publick," as it was chartered expressly to provide public education. In addition, he pointed out that the trustees possessed no private interest in the property of the institution:

"If its property were destroyed, the loss would be exclusively publick.... The office of trustee of Dartmouth College is a publick trust, as much as the office of governor, or of a judge of this court."4

It necessarily followed, added Richardson, that the Contract Clause of the federal Constitution could have no application. This was intended to protect private rights, not to limit the power of States to control their own civil institutions; otherwise, divorce laws would be void.

The College appealed to the U.S. Supreme Court, by writ of error. But even Webster was impressed by Richardson's opinion, and the University authorities were confident that it could not be overturned. Governor Plumer, himself a lawyer, said: "The College can have no rational grounds to hope for success in the National Court."5

The New Hampshire court's opinion had been based upon the pleadings. To obtain finality, a determination of facts was required, and counsel for each side drafted proposed "special verdicts" for this purpose. That of Ichabod Bartlett, youngest and ablest of the University's attorneys, included a statement that

" . . . the greater part of said moneys and lands received and acquired by said corporation 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."6

Jeremiah Smith objected to this and George Sullivan, senior counsel for the University, agreed to delete it. Apparently, he did not think the point worth fighting over; and, as he was Attorney General of New Hampshire, his view prevailed. Consequently, the record that went to the U.S. Supreme Court said nothing about the substantial gifts with which New Hampshire had endowed the College. So far as the record showed, Dartmouth had been financed by British donations of money and local gifts of land designed to attract it to the vicinity of Hanover.

Damaging as this appears in hindsight, it is easy to understand the thinking behind it. In holding that the College was a public institution, the New Hampshire court had adopted the test of function. The College had been formed to provide public education, therefore it was a public corporation. And so confident were counsel for the University that they had the case won, that they did not concern themselves with the possibility that the Supreme Court might adopt a different test. This, of course, is precisely what happened. Chief Justice Marshall held that the determinative factor was not function but the funds and the intention of the donors. And on the basis of the record he was able to say: "The funds of the College consisted entirely of private donations."7

Overconfidence led the University into another error. It recoiled from the expense of sending to Washington the attorneys who had handled the case in New Hampshire; especially as the College was not sending its senior counsel, Judge Smith and Jeremiah Mason. Instead, the University retained William Wirt and John Holmes, who had the advantage of already being there.

Wirt was a first-rate lawyer, but had recently become U.S. Attorney General (see "The Many-Sided Attorney General" in (Yearbook 1976-ADD LINK), and was so overwhelmed by the backlog of pressing matters that he had no time to prepare adequately for the argument. He came into Court knowing only what appeared on the surface, relying upon oratory to compensate for lack of depth. Holmes, a Massachusetts Congressman, was not even an experienced advocate. According to Claude M. Fuess, he was "a good `stump speaker,' but lacked dignity and poise."8 Before the Supreme Court he was lost. On March 14, 1818, Webster wrote Judge Smith:

"Holmes did not make much of a figure. I had a malicious joy in seeing Bell [one of the N. H. judges] 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."9

Webster, then in his mid-thirties, agreed to go to Washington to argue the case if the College would pay him $1,000 to cover expenses. Out of this he was to retain cocounsel. He selected Joseph Hopkinson, then a Congressman from Philadelphia, and a leading lawyer of great erudition and urbanity. He had been one of those to defend Justice Chase against impeachment, which lost him no love in the eyes of the Court. He had also demonstrated his versatility by writing the vastly popular war song, "Hail Columbia," stimulated by XYZ Mission, of which Marshall had been a member.

Webster and Hopkinson went into the case as underdogs. Webster himself believed their case weak. Their strongest arguments had been under the New Hampshire Constitution. The Contract Clause point had been added primarily as kind of makeweight, to afford a possibility of appeal in the event of an adverse state decision. Now because of the way in which the case had reached the Supreme Court, it was the only point they were entitled to argue.

Under the Federal Judiciary Act, appeals from a state court were limited to issues arising under the Constitution, laws, or treaties of the United States. This excluded matters of state law, and in the present instance left only the Contract Clause. On the other hand, if the case had come from a subordinate federal court, acting under its diversity of citizenship jurisdiction, the appeal would have brought with it the issues that were before the lower court, including the points under the state Constitution.

On December 8, 1817, Webster wrote Judge Smith:

"It is our misfortune that our case goes to Washington on a single point. I wish we had it in such shape as to raise all the other objections, as well as the repugnancy of these acts to the Constitution of the United States. I have been thinking whether it would not be advisable to bring suit, if we can get such parties as will give jurisdiction in the circuit court of New Hampshire. I have thought of this more, from hearing the sundry sayings of a great personage.l0

"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 an ejectment for it. Or suppose the trustees of Dartmouth College should bring ejectment in Vermont 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."11

Webster's recommendation was adopted. Three separate ejectment proceedings were instituted in the U.S. Circuit Court for New Hampshire (Justice Story's circuit) on the basis of diversity of citizenship. They were so contrived as to raise all the issues, but were much too late to become part of the proceeding pending in the Supreme Court. In those days the judicial system was capable of great expedition. The New Hampshire decision had been handed down on November 6, 1817; the record in the appeal was sent off to Washington on Christmas Day; and the case was argued before the Supreme Court on March 10-12, 1818.

For the time being, Webster had to make do with what he had. He did so with extraordinary power and consummate skill. So adroitly did he weave the state points into his Contract Clause argument that neither opposing counsel nor any of the justices raised an objection.

So far as we know, Webster was not aware that he was venturing into an area of intense interest to Chief Justice Marshall. In his Life of Washington, Marshall had laid great stress on the sanctity of contract rights. He regarded their protection as essential to the protection of private property, and he saw the Contract Clause as the best available means of preventing State intrusion. Eight years earlier, in Fletcher v. Peck,12 he had stretched the Clause to cover a state land grant, holding it to be a contract. Justice Johnson had objected, and it was Marshall's strategy to move forward by stages, all the while working for a consensus. Hindsight makes it clear that he was determined to expand the coverage of the Clause and was biding his time for an appropriate opportunity. The Dartmouth College case must have brought a gleam to his eye. (See accompanying column, "An Earlier College Charter Case.") {ADD LINK}

Before the Due Process Clause of the Fourteenth Amendment, which in practical effect has superseded the Contract Clause, the Constitution afforded contract rights no other specific protection against state action. As a matter of judicial policy, Marshall strove to enlarge that protection. Professor Benjamin F. Wright, in his 1938 treatise on The Contract Clause, puts it this way:

"By employing a far broader conception of contract than had been prevalent in 1787, and by combining this conception with the principles of eighteenth century natural law, Marshall was able to make the Contract Clause a mighty instrument for the protection of the rights of private property·"13

The arguments of counsel ended March 12, 1818. The next day Marshall announced that the Court had conferred; that there were different opinions, and some of the judges had not formed opinions; consequently that the case must be continued until the next term. In a letter of March 14, conveying this news to Judge Smith, Webster said,

"I have no accurate knowledge of the manner in which the judges are divided. The Chief and Washington, I have no doubt are with us. Duval and Todd perhaps against us; the other three holding up. I cannot doubt that Story will be with us in the end, and I think we have much more than an even chance for some of the others. I think we shall finally succeed."14

Notwithstanding this ray of optimism, Webster urged expedition in getting the federal circuit court cases to the Supreme Court. On March 22 he wrote Jeremiah Mason:

"I believe it is fully expected that a case, raising the question in amplest form, will be presented at the circuit court. I have given some reason to expect this, and, unless for good cause, should be mortified if it were not so."15

Although the letter mentions no names, it is obvious that Webster had canvassed the situation with Justice Story, who would be the one to preside over the circuit court. Later correspondence confirms this. On April 23 Webster, in Boston, wrote to Mason in Portsmouth, New Hampshire:

"Judge Story has been recently in town. I have no doubt he will incline to send up the new cause in the most convenient manner, without giving any opinion, and probably without an argument. . . ."16

On April 28 he wrote Mason from Ipswich:

"I saw Judge Story as I came along. He is evidently expecting a case which shall present all the questions. . . . Judge Story goes down in the stagecoach on Friday morning."17

It is apparent that by now Webster knew how Story felt and that he could count on his support. On September 9 Webster wrote him:

"I send you five copies of our argument. If you send one of them to each of such of the judges as you think proper, you will of course do it in the manner least likely to lead to a feeling that any indecorum has been commited by the plaintiffs. The truth is that the New Hampshire opinion is able, ingenious, and plausible. It has been widely circulated, and something was necessary to exhibit the other side of the question."18

Activity had blossomed elsewhere even before the Supreme Court arguments.19 The Rev. Francis Brown, president of the College, had written to other presidents to emphasize their potential stake in the litigation. The other institutions did not, as hoped, contribute to the expenses, but they sent observers to the arguments in Washington.Webster's peroration was preserved for posterity, not by the Court reporter, who ignored it, but by Professor Chauncey A. Goodrich of Yale.20 They also demonstrated their solidarity of interest by arranging a "College Congress" attended by presidents or representatives of Harvard, Yale, Bowdoin, Vermont, Middlebury, Williams, and Andover Theological Seminary, as well as by the Rev. Mr. Brown.

Following the arguments in Washington, Princeton took occasion to award honorary degrees to its two alumni on the Supreme Court, Justices Johnson and Livingston. Harvard followed suit, with degrees to the same two Justices, and in addition added Story to its Board of Overseers. Justice Johnson was led to remark that "diploma had become as cheap as dog meat."21

Nor were these the only ploys. Chancellor James Kent of New York, generally considered the most prestigious of the state judges, had taken a trip north that summer and had visited Hanover, New Hampshire. There he was entertained by the officers of the University and shown a copy of Judge Richardson's opinion. Word got round that he had expressed admiration. Charles Marsh, a trustee of the College, quickly saw to it that Kent was also exposed to Webster's brief. Isaac Parker, who was not only Chief Judge of the Massachusetts Supreme Judicial Court but also Royall Professor of Law at Harvard, gave additional assistance in seeing that the brief reached appropriate spots of sensitivity.

Later, President Brown called upon Chancellor Kent in Albany. It was a fruitful visit. Kent expressed himself converted, and confided that Justice Johnson had requested a written expression of his views. Kent gladly complied, and in addition is said to have discussed the case with Justice Livingston, who had served with him on the New York court before going to the Supreme Court.

But there was a new cloud on the horizon. The University authorities, realizing that they had been badly served before the Supreme Court, retained William Pinkney of Baltimore to pull their chestnuts out of the fire. Marshall and Story both considered Pinkney the best appellate lawyer ever to appear before them. He was at the height of his powers and the acknowledged leader of the Supreme Court bar. He spent an entire week going over the case with Dr. Cyrus Perkins, secretary of the University, and proposed not only to seek a reargument but also to insert into the record facts demonstrating the substantial extent to which the Province and state of New Hampshire had endowed the College.

The Court opened its new term on February 2, 1819. For the first time since being honored by the wartime attentions of the British, it was back in its old room beneath the Senate Chamber, palatial quarters after shifting about among cramped rooms and taverns. As the Justices donned their robes and moved to their mahogany desks on the raised dais, Pinkney stationed himself where he could best command attention and was poised to present his motion for reargument. But, according to Shirley's history of the litigation:

"The instant the judges had taken their seats, the Chief Justice turned his `blind ear' towards Pinkney and shut off his motion by announcing that the judges had formed opinions during the vacation, and immediately commenced reading his, which was in manuscript. . . on eighteen folio pages."22

"Blind ear" or no, there can be little doubt that Marshall knew precisely what he was doing. Although he had polled the other Justices on their conclusions, he had not shown them the opinion that he was now delivering "for the Court." Indeed, he later revised it to meet suggestions. Without a compelling reason, Marshall would not have brushed aside the customary procedure of clearing majority opinions in advance of delivery. But none of the Justices objected, and Pinkney was in no position to do so. The only Justice to dissent was Duvall, who wrote no opinion and offered no criticism. Todd was absent.

How did Marshall know what Pinkney had in mind? Presumably from Story, who got it from Webster. Marshall and Story had been corresponding about the case. Both had drafted opinions in advance of the Court term, but had not had an opportunity to show them to each other. Plainly, Marshall had grasped the opportunity to make a desired point. In Fletcher v. Peck he had raised the bulwark of the Contract Clause a notch higher by extending it to cover grants of land. Here he broadened it to include a college charter.

Marshall's Dartmouth College opinion cited no legal precedents, not even Fletcher v. Peck. Instead, he proceeded as he liked to do in constitutional cases, as if the problem were one of logic. He adopted premises which he said were incontrovertible, and then reasoned from them to the conclusions he wished to prove.

He first demolished the New Hampshire court's conclusion that an institution dedicated to public education was necessarily subject to public management. The true test, he said, was not the function of the institution but the source of its funds and the intentions of the donors. He then turned to the effect of incorporation. Did this of itself make the institution public? Admittedly, the corporation owed its existence to a legislative act, but did this give the legislature control? Marshall's answer was a resounding "No." In the process he delivered himself of a definition that has become one of his most frequently quoted statements:

"A corporation," he said, "is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it. . . . By these means a perpetual succession of individuals are capable of acting for the promotion of the particular object, like one immortal being."23

Then, returning to the point at hand, Marshall went on to say:

"A corporation is no more a State instrument than a natural person exercising the same powers would be. . . . It is probable that no man ever was, and that no man ever wil1 be, the founder of a college, believing at the time that an act of incorporation constitutes no security for the institution; believing that it is immediately to be deemed a public institution, whose funds are to be governed and applied, not by the will of the donor, but by the will of the legislature. All such gifts are made in the pleasing, perhaps delusive, hope that the charity will flow forever in the channel which the givers have marked out for it. . . . ."24

Marshall's was the only opinion read in open court. Johnson concurred in a separate opinion, as did Story. The latter's, twenty thousand words long, extended the protection of the Contract Clause to business corporations as well as charitable corporations. He pointed out, however, that the legislature could always reserve the right to amend, and cited examples where it had done so. In later practice, this was to become the almost universal rule.

Washington also wrote a concurring opinion, in part to take issue with Story's extension of the decision to types of corporations not actually before the Court, and in part to discuss in detail the proposition that a corporate charter was a contract, something that Marshall had merely treated as incontrovertible. Livingston stated the he agreed with the others.

The three federal circuit cases that Webster had been at such pains to initiate and to rush on their way to the Supreme Court now became Frankensteins. Pinkney, blocked out of the main play, seized upon these pending appeals as a means of gaining a rehearing and of showing how heavily the public authorities had contributed to the College. But he was too late. Webster successfully opposed any enlargement of the stipulated facts in the Supreme Court. Instead, it remanded the cases to the circuit court for further proceedings.

This did not, of course, end the matter. The University now sought to get the additional facts into the proceedings before Justice Story in the circuit court. Governor Plumer was optimistic. On April 8, 1819, he wrote: "I am confident the fact of the State's being the principal donor can be proved so as to remove the doubts of even an unwilling judge."25 But Pinkney did not participate further, and the others representing the University seemed to have lost their fire. Instead of jumping in with both feet, they asked for five months to assemble further facts. Story was predictably unreceptive. He gave them a month. Then he held that what they produced was insufficient to vary the rulings.

Thus ended one of the greatest lawyers' battles in our history. But to allay concern at the weight that professional skill and persistence exerted in the scales of justice, an additional fact may be comforting. According to knowledgeable observers, the battle already had been won. Mounting criticism and expense had brought shudders to both Governor and legislature. And so many of the College students had refused to transfer allegiance to the University that it never became more than a shell. In all likelihood, it would have collapsed even had the Court's decision been otherwise.

Endnotes

General note: The background facts are admirably detailed and documented in Francis S. Stites, Private Interest and Public Gain: The Dartmouth College Case, 1819 (Univ. of Mass. Press, 1972). For a contemporary feeling of the case and of the antagonisms that enveloped it, the best source is still John M. Shirley, The Dartmouth College Causes and the Supreme Court of the U.S. (St. Louis, 1879), which initially appeared in installments in The Southern Law Review, Vols. 1-III (St. Louis, 1875-77). This exhibits strong bias against Marshall and the Court and was sharply criticized by Senator Beveridge in his Life of John Marshall (Boston, 1919), IV, 258 n2, also by John Phillip Reid, Chief Justice: The Judicial World of Charles Doe (Harv. Univ. Press, 1967), 186-87; and by Stites, 165. Nevertheless, we are indebted to Shirley for interesting facts and documentary materials that might otherwise have escaped notice. Shirley (1831-1887) was State Reporter for the N. H. Supreme Court, a post traditionally held by highly qualified lawyers; he was also a Vice President of the N. H. Historical Society.

1 The "Octagon" included Thomas W. Thompson, under whom Webster had studied law and with whom he was on terms of intimacy.

2 Woodward is said to have been a nephew of Wheelock. Stites, 29.

3 Writings of Thomas Jefferson, H. A. Worthington, ed. (N. Y., 1853-55), VII, 18-19.

4 N.H. 111, at 119 (1817).

5 Plumer Papers, Lib. Cong.; quoted in Maurice G. Baxter, Daniel Webster & The Supreme Court (Univ. of Mass. Press, 1966), 78.

6 Shirley, op. cit., 106.

7 Dartmouth College v. Woodward, 4 Wheat. 518, at 632 (1819).

8 Claude M. Fuess, Daniel Webster (Boston, 1930),I, 225 n3.

9 Writings and Speeches of Daniel Webster (Boston, 1903), XVII, 276.

10 Justice Joseph Story.

11 Webster, XVII, 267-68.

12 6 Cranch 87 (1810).

13 Benjamin F. Wright, The Contract Clause and the Constitution (Harv. Univ. Press, 1938), 26, 28.

14 Webster, XVII, 276.

15 Ibid., 278.

16 Ibid., 280.

17 Ibid., 282.

18 Ibid., 287.

19 For such activities, see: Gerald T. Dunne, Justice Story (N.Y., 1970), 170-76, 180-83; Baxter, 89-98; and Stites, 69-73.

20 Many years later Goodrich made this available to Rufus Choate, who featured it in his July 27, 1853 "Eulogy to Webster" at Dartmouth.

21 Donald Morgan, Justice William Johnson (Univ. of S. C. Press, 1954), 143.

22 Shirley, op. cit., 203.

23 4 Wheat. 518, at 636 (1819).

24 Ibid., 647.

25 Plumer Papers, N. H. State Library; quoted in Baxter, 33 New England Q. (1960), 28; also in Dunne, 180.

Copyright 1976, Supreme Court Historical Society