A POSTSCRIPT

Another Early College Charter Case

A singular coincidence in the professional life of John Marshall places his famous opinion in the Dartmouth College case in juxtaposition to a similar case nearly thirty years earlier. In 1790, Marshall stood in the shoes of Daniel Webster, speaking on behalf of "a small College" of whom it could also be said that "there are those who love her." Bracken v. Board of Visitors of the College of William and Mary differed in some material points from Dartmouth College, but essentially both cases turned upon the proposition that a charter grant, like a contract, is not to be unilaterally altered. As lawyer and judge, Marshall insisted upon this proposition; in the William and Mary case he sought to absolve the governing body by contending that its unilateral action did not fall in the forbidden zone, while in the Dartmouth case he ruled that the unilateral action did so fall.

Singularly, too, the earlier case brought into contact the cross-purposes of those chronic adversaries, Marshall and Thomas Jefferson. The litigation grew out of an initiative that Jefferson describes in his Autobiography:

"Being elected . . . one of the Visitors of Wm. & Mary college, a self-electing body, I effected, during my residence in Williamsburg that year, a change in the organization of that institution . . . substituting a professorship of Law & Police [for the chair of theology]."

This 1779 reorganization of the college curriculum had been brewing throughout the pre-Revolutionary period, as the agitators sought to rid the institution of its loyalist faculty. Following independence, Jefferson was zealous to convert the college into a training ground for civil servants and citizens better equipped to participate in a democracy. Several of the original chairs of learning, representing the traditional European style of curriculum, were eliminated in favor of "modern" subjects.

One of the positions stipulated in the original charter of King William and Queen Mary in 1693 had been that of master the "grammar school." The Rev. John Bracken, occupant of the chair in 1779, apparently was disposed to let events take their own course, and it was not until eight years later, in l787, that he was persuaded to challenge the governing board's power to eliminate his position. Late in that year he sought a petition in the local district court for mandamus to compel the college's Board of Visitors to restore him to his "place and office of grammar master and professor of humanity." (There is some suggestion that as a clergyman, Bracken was chosen by the Anglican party to test the legality of the disestablishmentarianism of the Jeffersonians.)

In any event, all parties recognized the importance of the issue now joined for litigation. The case was transferred from the district court to the Virginia general court of appeals, and the college retained as its counsel one of the leading members of the bar--John Marshall. There is no evidence that, in 1819, Chief Justice Marshall considered that anything he had argued in 1790 provided precedent for the Dartmouth College case. The earlier state case had turned upon common law interpretation of charter/contract powers, while the later case turned upon the constitutional matter of the inviolability of contract provisions. Moreover, Marshall in the earlier case was defending the power of the institution's governing body to make changes "provided they did not depart from the great outlines marked in the charter," while Webster in the later case was arguing that the New Hampshire authorities had done just that.

But a fundamental similarity exists between the two college charter cases in John Marshall's professional career. As William and Mary's counsel, he declared: "It is an established principle, that all annexed foundations follow, and are governed by the rules of the old foundation to which they are annexed." As Chief Justice, Marshall said in the Dartmouth case: "The character of civil institutions does not grow out of their incorporation, but out of the manner in which they are formed, and the objects for which they are created." The William and Mary Board of Visitors succeeded to the British Crown, as a party to the charter/contract. The legislature of New Hampshire succeeded to a peer of the realm as a party to the charter/contract. In neither case could one of the parties to the charter/contract "depart from the great outlines."

Marshall won, in 1790. Webster won, in 1819. As for the Rev. Dr. Bracken, he also won, after a fashion. In 1812, after the furor of 1779 and 1790 had passed, he became for two years president of the College of William and Mary.

Copyright 1976, Supreme Court Historical Society