“It Is … A Small College … Yet, There Are Those Who Love It”

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Finally the University forces capitulated. In token of their abject surrender, they were made to file out beneath the crossed clubs of the College boys, lined up in two rows. From this indignity, Professor Carter was excused. He was shaking with fright and was complaining that he had lost his cane; besides, he had once given the Social Friends $15 for books, which he now wanted back. Two College boys led him home.

Saving the society’s books did not save the College. Its trustees could appeal from the Superior Court of New Hampshire to the Supreme Court of the United States, but if they did so, the prospects were most uncertain. Writing contemptuously of “Brown & Co.,” Governor Plumer said: “I think they can have no rational grounds to hope for success in the National Court.”

The College trustees needed money to resume legal action. As they pointed out in a circular soliciting contributions, the annual income from the Dartmouth endowments amounted to barely more than $1,500— only about half the endowment income of Phillips Exeter Academy. Even this $1,500 was not available to the College, since Treasurer Woodward controlled the funds. The College managed to keep going only because loyal parents continued to pay tuition fees and generous alumni and friends rallied with gifts.

Daniel Webster, Dartmouth ’01, was not moved to contribute. But if an appeal should be carried to the Supreme Court, he was expected, for a fee, to represent the College. Joseph Hopkinson—famous as a Philadelphia lawyer and even more famous as the author of “Hail, Columbia!”—was being mentioned as a suitable associate. On November 15, Webster, now living in Boston, wrote to President Brown to inquire about the College’s plans. “I am aware that there must be great difficulty in obtaining funds on this occasion,” he said. “I think that I would undertake, for a thousand dollars, to go to Washington and argue the case, and get Mr. Hopkinson’s assistance also. I doubt whether I could do it for a much less sum.” A thousand-dollar gift to the College made it possible for the trustees to hire Webster and Hopkinson.

Already Webster was thoroughly familiar with the case. He had followed it from the beginning, and he had joined with Jeremiah Mason and Jeremiah Smith to present the College’s argument before the New Hampshire court at Exeter. Their brief contended that the legislators, in reorganizing the College as a University, had gone beyond their rightful powers in these three respects:

  1. 1. They had violated an accepted legal principle: only the courts, not the legislature, could take away a vested right.
  2. 2. They had violated the constitution of New Hampshire, which provided that no person should be deprived of his property except by the “law of the land,” meaning the common law, not a legislative act.
  3. 3. They had violated the Constitution of the United States, which provided that no state should pass any law “impairing the obligation of contracts.”

Only on the third of these contentions, as Webster knew, could the case properly be reargued before the Supreme Court, and he thought the point weak and unconvincing. To hedge the case, and to bring in the whole range of arguments, he persuaded the College trustees to lease Dartmouth properties to Vermont residents and then arrange for the lessees to sue. These suits, involving citizens of two states, would go directly to the federal courts.

Before any of these synthetic cases reached the Supreme Court, however, the original case of the Trustees of Dartmouth College v. Woodward was taken up, on appeal. Webster opened for the trustees on the morning of March 10, 1818. The Court still sat in a rented house, for the Capitol, left burned and blackened by the British invaders of Washington during the War of 1812, had not yet been restored.

Among those in the audience were representatives of other colleges, which might lose their independence if Dartmouth lost hers. One of these was Chauncey A. Goodrich, professor of oratory at Yale, who recorded Webster’s performance for posterity.

For more than four hours, on past noon, Webster spoke in a calm and conversational tone, as if dealing with propositions everyone knew and accepted. For more than three of the hours he dealt in irrelevancies, cleverly bringing in all the arguments that had been used before the New Hampshire court. He also hinted strongly, for the benefit of Chief Justice Marshall, the arch-Federalist, that the College was a victim of political machinations by the Democrats.

Webster took plenty of time, however, to elaborate upon the one point that remained relevant. What, he asked, was the full meaning of the clause in the United States Constitution prohibiting the states from “impairing the obligation of contracts?” The Supreme Court itself, he answered, had decided in the case of Fletcher v. Peck , involving land grants by the state of Georgia, that “a grant is a contract.” The Dartmouth charter, he went on, “is embraced within the very terms of that decision,” for “a grant of corporate powers and privileges is as much a contract as a grant of land.”