CHAPTER V

THE DARTMOUTH COLLEGE CASE Such a contract, in relation to a publick institution would be absurd and contrary to the principles of all governments. (Chief Justice William M. Richardson.) It would seem as if the state legislatures have an invincible hostility to the sacredness of charters. (Marshall.) Perhaps no judicial proceedings in this country ever involved more important consequences. (_North American Review_, 1820.) It is the legitimate business of government to see that contracts are fulfilled, that charters are kept inviolate, and the foundations of human confidence not rudely or wantonly disturbed. (John Fiske.) Just before Marshall delivered his opinion in Sturges _vs._ Crowninshield, he gave to the Nation another state paper which profoundly influenced the development of the United States. It was one of the trilogy of Constitutional expositions which make historic the February term, 1819, of the Supreme Court of the United States. This pronouncement, like that in the bankruptcy case, had to do with the stability of contract. Both were avowals that State Legislatures cannot, on any pretext, overthrow agreements, whether in the form of engagements between individuals or franchises to corporations. Both were meant to check the epidemic of repudiatory legislation which for three years had been sweeping over the land and was increasing in virulence at the time when Marshall prepared them. The Dartmouth opinion was wholly written in Virginia during the summer, autumn, or winter of 1818; and it is probable that the greater part of the opinion in Sturges _vs._ Crowninshield was also prepared when the Chief Justice was at home or on his vacation. Marshall's economic and political views, formed as a young man,[615] had been strengthened by every event that had since occurred until, in his sixty-fifth year, those early ideas had become convictions so deep as to pervade his very being. The sacredness of contract, the stability of institutions, and, above all, Nationalism in government, were, to John Marshall, articles of a creed as holy as any that ever inspired a religious enthusiast. His opinion of contract had already been expressed by him not only in the sensational case of Fletcher _vs._ Peck,[616] but far more rigidly two years later, 1812, in the important case of the State of New Jersey _vs._ Wilson.[617] In 1758, the Proprietary Government of New Jersey agreed to purchase a tract of land for a band of Delaware Indians, provided that the Indians would surrender their title to all other lands claimed by them in New Jersey. The Indians agreed and the contract was embodied in an act of the Legislature, which further provided that the lands purchased for the Indians should "not hereafter be subject to any tax, any law, usage or custom to the contrary thereof, in any wise notwithstanding."[618] The contract was then executed, the State purchasing lands for the Indians and the latter relinquishing the lands claimed by them. After forty years the Indians, wishing to join other Delawares in New York, asked the State of New Jersey to authorize the sale of their lands. This was done by an act of the Legislature, and the lands were sold. Soon after this, another act was passed which repealed that part of the Act of 1758 exempting the lands from taxation. Accordingly the lands were assessed and payment of the tax demanded. The purchasers resisted and, the Supreme Court of New Jersey having held valid the repealing act, took the case to the Supreme Court of the United States. In a brief opinion, in which it is worthy of particular note that the Supreme Court was unanimous, Marshall says that the Constitution protects "contracts to which a state is a party, as well as ... contracts between individuals.... The proceedings [of 1758] between the then colony ... and the Indians ... is certainly a contract clothed in forms of unusual solemnity." The exemption of the lands from taxation, "though for the benefit of the Indians, is annexed, by the terms which create it, to the land itself, not to their persons." This element of the contract was valuable to the Indians, since, "in the event of a sale, on which alone the question could become material, the value [of the lands] would be enhanced" by the exemption. New Jersey "might have insisted on a surrender of this privilege as the sole condition on which a sale of the property should be allowed"; but this had not been done and the land was sold "with the assent of the state, with all its privileges and immunities. The purchaser succeeds, with the assent of the state, to all the rights of the Indians. He stands, with respect to this land, in their place, and claims the benefit of their contract. This contract is certainly impaired by a law which would annul this essential part of it."[619] After his opinions in Fletcher _vs._ Peck and in New Jersey _vs._ Wilson, nobody could have expected from John Marshall any other action than the one he took in the Dartmouth College case.[620] The origins of the Dartmouth controversy are tangled and obscure. When on December 23, 1765, a little ocean-going craft, of which a New England John Marshall[621] was skipper, set sail from Boston Harbor for England with Nathaniel Whitaker and Samson Occom on board,[622] a succession of curious events began which, two generations afterward, terminated in one of the most influential decisions ever rendered by a court. Whitaker was a preacher and a disciple of George Whitefield; Occom was a young Indian, converted to Christianity by one Eleazar Wheelock, and endowed with uncommon powers of oratory. Wheelock had built up a wilderness school to which were admitted Indian youth, in whom he became increasingly interested. Occom was one product of his labors, and Wheelock sent him to England as a living, speaking illustration of what his school could do if given financial support. Whitaker went with the devout and talented Indian as the business agent.[623] Their mission was to raise funds for the prosecution of this educational and missionary work on the American frontier. They succeeded in a manner almost miraculous. Over eleven thousand pounds were soon raised,[624] and this fund was placed under the control of the Trustees, at the head of whom was the Earl of Dartmouth, one of the principal donors.[625] From this circumstance the name of this nobleman was given to Wheelock's institution. On December 13, 1769, John Wentworth, Royal Governor of the Province of New Hampshire, granted to Wheelock a charter for his school. It was, of course, in the name of the sovereign, but it is improbable that George III ever heard of it.[626] This charter sets forth the successful efforts of Wheelock, "at his own expense, on his own estate," to establish a charity school for Indian as well as white youth, in order to spread "the knowledge of the great Redeemer among their savage tribes"; the contributions to the cause; the trust, headed by Dartmouth--and all the other facts concerning Wheelock's adventure. Because of these facts the charter establishes "DARTMOUTH COLLEGE" for the education of Indians, to be governed by "one body corporate and politick, ... by the name of the TRUSTEES OF DARTMOUTH COLLEGE." These Trustees are constituted "forever hereafter ... in deed, act, and name a body corporate and politick," and are empowered to buy, receive, and hold lands, "jurisdictions, and franchises, for themselves and their successors, in fee simple, or otherwise howsoever." In short, the Trustees are authorized to do anything and everything that they may think proper. Wheelock is made President of the College, and given power to "appoint, ... by his last will" whomever he chooses to succeed himself as President of the College. The charter grants to the Trustees and to "their successors forever," or "the major part of any seven or more of them convened," the power to remove and choose a President of the College, and to fill any vacancy in the Board of Trustees occasioned by death, or "removal," or any other cause. All this is to be done if seven Trustees, or a majority of seven, are present at any meeting. Also this majority of seven of the twelve Trustees, if no more attend a meeting, are authorized to make all laws, rules, and regulations for the College. Other powers are granted, all of which the Trustees and their successors are "to have and to hold ... forever."[627] Under this charter, Dartmouth College was established and, for nearly half a century, governed and managed. Eleazar Wheelock died in 1779, when sixty-eight years of age.[628] By his will he made his son John his successor as President of the College.[629] This young man, then but twenty-five years of age, was a Colonel of the Revolutionary Army.[630] He hesitated to accept the management of the institution, but the Trustees finally prevailed upon him to do so.[631] The son was as strong-willed and energetic as the father, and gave himself vigorously to the work to which he had thus been called. Within four years troubles began to gather about the College. They came from sources as strange as human nature itself, and mingled at last into a compound of animosities, prejudices, ambitions, jealousies, as curious as any aggregation of passions ever arranged by the most extravagant novelist. It is possible here to mention but briefly only a few of the circumstances by which the famous Dartmouth quarrel may be traced. A woman, one Rachel Murch, complained to the church at Hanover, where Dartmouth College was situated, that a brother of the congregation, one Samuel Haze, had said of her, among other things, that her "character was ... as black as Hell."[632] This incident grew into a sectarian warfare that, by the most illogical and human processes, eventuated in arraigning the Congregationalists, or "established" Church, on one side and all other denominations on the other.[633] Into this religious quarrel the economic issue entered, as it always does. The property of ministers of the "standing order," or "State religion," was exempt from taxation while that of other preachers was not.[634] Another source of discord arose out of the question as to whether the College Professor of Theology should preach in the village church. Coincident with this grave problem were subsidiary ones concerning the attendance of students at village worship and the benches they were to occupy. The fates threw still another ingredient of trouble into the cauldron. This was the election in 1793, as one of the Trustees, of Nathaniel Niles, whom Jefferson, with characteristic exuberance of expression, once declared to be "the ablest man I ever knew."[635] Although a lawyer by profession, Niles had taken a course in theology when a student, his instructor being a Dr. Joseph Bellamy. Both the elder Wheelock and Bellamy had graduated from Yale and had indulged in some bitter sectarian quarrels, Bellamy as a Congregationalist and Wheelock as a Presbyterian. From tutor and parent, Niles and the younger Wheelock inherited this religious antagonism. Moreover, they were as antipathetic by nature as they were bold, uncompromising, and dominant. Niles eventually acquired superior influence over his fellow Trustees, and thereafter no friend of President Wheelock was elected to the Board.[636] An implacable feud arose. Wheelock asked the Legislature to appoint a committee to investigate the conduct of the College. This further angered the Trustees. By this time the warfare in the one college in the State had aroused the interest of the people of New Hampshire and, indeed, of all New England, and they were beginning to take sides. This process was hastened by a furious battle of pamphlets which broke out in