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


At the end of his formal argument, as Professor Goodrich afterward recalled, Webster stood silent for a time. Then, addressing the Chief Justice, he said: This, sir, is my case. It is the case not merely of that humble institution; it is the case of every college in our land. … It is more. It is, in some sense, the case of every man who has property of which he may be stripped,—for the question is simply this: Shall our state legislature be allowed to take that which is not their own, to turn it from its original use, and apply it to such ends or purposes as they, in their discretion, shall see fit? …

Webster pulled out the stops and continued: Sir, you may destroy this little institution. It is weak. It is in your hands! I know it is one of the lesser lights in the literary horizon of the country. You may put it out. But if you do so, you must carry through your work. You must extinguish, one after another, all those great lights of science which, for more than a century, have thrown their radiance over our land. It is, Sir, as I have said, a small college, and yet, there are those who love it. …

Here Webster, the consummate actor, pretended to break down. His lips quivered, his voice choked, his eyes filled with tears. From this spectacle Professor Goodrich turned to observe the judges. Marshall bent his tall, gaunt figure forward as if straining to catch every word. His eyes seemed wet. Joseph Story still sat, pen in hand, as if to take notes, which he never took. The other justices, too, appeared transfixed.

But the show had to go on. Other attorneys had to be heard—the two for Woodward that afternoon and the next day, and Hopkinson for the College trustees on the third day. After Hopkinson had concluded, Marshall announced that some of the justices could not make up their minds and that the case therefore would be continued to the next term. This meant postponing the decision for a year or so.

Webster and other advocates of the College cause put the interim to good use. On the day after the postponement he guessed that, of the seven judges then on the Court, two sided with the College, two were opposed, and three were wavering. The trustees and their counsel faced the delicate task of bringing over to their side at least two of the doubtful three.

“Public sentiment has a great deal to do in affairs of this sort, and it ought to be well founded,” the chief justice of Massachusetts wrote to Webster in April, 1818. “That sentiment may even reach and affect a court; at least, if there be any members who wish to do right, but are a little afraid, it will be a great help to know that all the world expects they will do right.” The Massachusetts judge was responding to a gift from Webster—a printed copy of Webster’s argument in Washington. The judge urged that it be “extensively circulated.” It was.

Of all the various state judges, much the most influential was James Kent, the chancellor (the highest judicial officer) of New York. In July, while on a tour with his wife, Kent stopped in Hanover and in neighboring Windsor, Vermont. He visited with University but not with College officials, and in conversation he seemed to imply approval of the New Hampshire decision in favor of Woodward.

This worried the College officials, especially President Brown. They quickly sent a copy of Webster’s brief to Kent, and in September Brown went to Albany and called on him. Kent now came out unequivocally for the College. He agreed to talk with William Johnson, one of the wavering Supreme Court justices. Johnson, a dissenter in the case of Fletcher v. Peck , had held that a grant of land was not a contract, and so he found it hard to believe that a grant of corporate powers could be one. But Kent convinced him and drafted an opinion for him.

That summer, while the struggle for judicial minds was going on, the defendant in the case, William H. Woodward, quietly died in Hanover, at forty-three.

By the time the Supreme Court reconvened, in February of 1819, five of the justices favored the College, one was still opposed, and one was absent. The University officials, having hired the impressive William Pinkney of Baltimore as their new attorney, hoped to have the case reopened and reargued, but Marshall ignored Pinkney and calmly read his magisterial opinion. A grant of corporate powers, Marshall opined, was indeed a contract within the meaning of the Constitution; a state legislature had no power to void it.

Of all his opinions, this was to be one of the most often cited. As the nation’s leading magazine, the North American Review , remarked about a year afterward: “Perhaps no judicial proceedings in this country ever involved more important consequences.” The Dartmouth case enhanced the prestige of John Marshall and the Supreme Court. It extended the national power at the expense of state power. It confirmed the charter rights not only of Dartmouth College but of all private colleges. It protected and encouraged business corporations as well as non-profit corporations. And, incidentally, it brought Daniel Webster to the top of the legal profession.

Poor old John Wheelock! He could have had no idea what he was starting, back in 1815, when he took his problems into politics.