August 1963 | Volume 14, Issue 5
DARTMOUTH COLLEGE V. WOODWARD
This year—1815—they came together in an atmosphere that was unusually tense, despite the return of both spring and peace. State politics were beginning to be stirred by a campus quarrel brought over from the village of Hanover. Before long, this quarrel was lo attract attention far beyond the boundaries of New Hampshire and would leave its mark indelibly upon the Constitution of the United States.
The trouble arose from the sinister scheming of a few men—if a certain anonymous pamphlet going the rounds in Concord that June was to be believed. This pamphlet made more exciting reading than was suggested by the wordy title: “Sketches of the History of Dartmouth College … with a Particular Account of Some Late Remarkable Proceedings of the Board of Trustees from the Year 1779 to the Year 1815.” From the pamphlet’s eighty-eight pages, pedantically yet vigorously written, it appeared that the wicked trustees of the college were interfering with the work of its virtuous president. Worse, they were misapplying college funds. Worse still, they were plotting somehow to extend their tyranny to the entire state.
The anonymous author of the “Sketches” was present in Concord among the legislators and lobbyists. Over sixty but still very erect, he walked with slow and measured steps and with exaggerated dignity. He wore old-fashioned clothing—a dun-colored coat, knee breeches with buckles, white stockings, and a threecornered beaver hat. From time to time he lifted his hat and bowed and smiled. He could be gracious enough, in his way, but he was not here for a social visit. The writer of the pamphlet was none other than its hero, John Wheelock, president of Dartmouth. He was here to launch a fight to the finish against his rebellious trustees.
Wheelock expected to need legal as well as legislative aid. To help him in court he counted on the services of a young man of growing reputation, a thirty-three-year-old congressman and lawyer named Daniel Webster, now living in Portsmouth. Wheelock had sounded him out, and Webster had promised to be in Concord. Wheelock kept an eye out for his prospective attorney.
He would know him when he saw him. The older people of Dartmouth and Hanover could recall Webster from the day of his arrival, back in 1797, to enroll as a student at the college. He was dressed in homespun which his mother had made and dyed: he had ridden through a hard rain, and the color had run. As he dismounted at the Hanover Inn, the bystanders had smiled at his streaked and mottled appearance. They had also wondered at his swarthy complexion. Surely this boy must be an Indian. Evidently Wheelock —after a lapse of several years during which the college enrolled none of the aborigines for whom it presumably had been founded—had finally brought one in!
To Webster, as to the townspeople and to other students, Wheelock himself was a figure no less memorable. Often enough they had observed him as he made his way, slowly, stiffly, across the college green. The boys would snicker and repeat their stock joke: Wheelock’s profile, with that tremendous nose, they said, made a perfect quadrant.
In the chapel, when he officiated, they found additional cause for amusement. He possessed no training as a minister, and he prayed in unconventional ways. One day, after having attended a chemistry experiment, he fervently addressed the ceiling: “We thank ihee, O Lord, for the oxygen gas; we thank thee, O Lord, for the hydrogen gas: we thank thee, O Lord, for the nitrogen gas and for all the gases.” (He spoke in a sanctimonious falsetto, which young Webster had learned to mimic perfectly.)
Wheelock taught history and theology to the seniors. In the classroom he would ask, textbook in hand, what the author said on stich and such a page. If a curious boy raised questions of his own, Wheelock would shut him up with sarcasm. In his office, students invariably discovered him with a tome he had been poring over; he was the most indefatigable reader that Webster ever saw. Covetous of his time, Wheelock would dispose of a student’s business as quickly as possible, then inquire: “Will you sit longer, or will you go now?” It is not recorded that any boy ever sat longer.
This caricature of a college president had inherited his job. His father, Eleazar Wheelock, was Dartmouth’s founder and first president. Ky the terms of (he original charter granted by King George III in 1769, Eleazar could name his own successor, who was to hold office “until such appointment” should be “disapproved by the trustees.” He named his son John.
When Eleaxar died, the trustees hesitated to approve John’s appointment. John was only twenty-five, a devil-may-care army officer. Though a Dartmouth graduate, he hardly seemed to qualify as a Dartmouth president. Hut the trustees could not very well pick and choose. They lacked the wherewithal to provide a salary, and the younger Wheelock, like the elder, was willing io serve (at least for the time being) without pay.
At the time he took over, in 1779, John Wheelock must have had a deep I’eeling of inadequacy and insecurity. He was scarcely older or more distinguished than the college boys themselves. Desperately anxious to command the respect that his new office required, he went loo far. He introduced rules compelling the students to remove their hats in his presence and to remain standing until he told them to sit. He took to reading, or at least to looking at, printed pages at all hours of the day and night, so as to give the appearance of diligent scholarship. And he put on a still formality of speech and manner.
Wheelock came to act as if he owned the college— and the village too. Well, he did own them, practically. From his father he had inherited, along with his job, a sizable estate. Through marriage to a well-to-do woman he had acquired additional property. By lending money at steep rates, and foreclosing without mercy, he got still more. He could, and did, contribute much to (he material support of the college.
Dartmouth continued to be pretty much a one man show for nearly thirty years, until 1809. Then, alter the passing, one by one, of older trustees who deferred to Wheelock, the board acquired a majority of newer members who chose to defy him. These men were disgusted by, among other things, the president’s pertinacity in quarrelling with the parishioners of the Hanover church, who resisted his efforts to impose an unwanted minister upon them. Hy vetoing his nominations to the college faculty, the newer trustees soon had a majority of the professors and tutors on their side.
After several years of forced retreat, Wheelock took the offensive. At the board meeting in Xovember, iHi/i, he made a proposal which he thought would put his opponents in a dilemma. A part of his back salary, amounting to about SH,(X)o with interest, had never been paid. He now offered this sum as a gift to endow two professorships—but only on the condition that he be allowed to appoint the two professors. In case the trustees should reject his offer, he would have to demand immediate payment of the $8,000.
His opponents were infuriated. Their first impulse was to demand his resignation. Still, with the college owing him so much money, they hesitated to do that. Perhaps, by humiliating him, they could obtain his resignation without coming out and demanding it. Accordingly, they passed a resolution that, “to relieve the President of some portion of the burdens” weighing heavily upon him, he hereby “be excused from hearing the recitations ol the Senior (Mass in the theology course. I his was considerately worded, yel well calculated to sting the Whcclock pride. The day before, he had met the seniors, as usual, to query then: on sudi matters as the freedom ol the will: the day alter, he was absent, and another man was in his place.
Humiliated though he was, Whcclock had no intention ol resigning. He prepared to strike back, put down the trustees, and regain control ol the college, and when spring came he was ready. He thought of suing the trustees—hence his approach to Lawyer Webster. Whether he sued or not, Whcelock was determined to appeal to the sovereign people and to their representatives in the legislature. So he wrote his “Sketches of the History of Dartmouth College,’ got the pamphlets printed, and sent bundles ol them to Isaac Hill, editor of the Concord New Hampshire Patriot , with instructions (in an unsigned letter) to see that each member of the legislature received a copy. Then, in plenty of time for the 1815 session, Wheelock set out for Concord.
A majority of the legislators, though a very small majority, belonged to the federalist party, and so did Governor [ohn T. Gilman. The Federalists sponsored theocracy and aristocracy, if one was to believe their rivals, the |cllcrsonian Republicans—that is, the Democrats. These men itched to overthrow the Federalist rule and, along with it, the arrangement by which public taxes helped support the Congregational church.
The Democrats had a shrill but effective journalist in the youthful hunchback Isaac Hill (who in years to come was to put his talent lor invective at the service of Andrew Jackson). With Hill and the Patriot in the forefront, the Democrats took tip the cause of Wheelock. In it they saw, or pretended to sec, the cause of religious and political liberty. \ow, Wheelock was in fact no libertarian of any kind. He was a good Calvinist and a conservative Federalist. With Hill and the rest ol his new-lounci lriends he really had nothing in common—except to the extent that they were willing to help him recover his authority at Dartmouth.
When the legislature met, Wheelock got at least a part of what he had come for. He had stolen a march on the trustees: they were not prepared to launch organized opposition to him. Before a sympathetic committee, with no one to refute him, Wheelock stated his case, charging the trustees with misusing college funds, overpaying professors, infringing on the president’s prerogatives, and conspiring to subvert popular liberties. He asked the legislature to look into Dartmouth s altairs. The legislature agreed, meanwhile endorsing neither Wheelock nor his opponents.
While in Concord, Wheclock also succeeded in finding Webster, who said he would be happy to provide professional assistance.
Several weeks later, at home in Hanover, Wheelock received notice that the investigating committee of the legislature would meet in Hanover on August 16. He could not be sure what tack the committee might take. Promptly he wrote to Webster, enclosing twenty dollars and requesting him to come at once. Wheelock waited, with growing impatience. By August 16 Webster had not appeared and had not answered. So Wheelock faced the committee without him. The committee only tried to patch up a truce. Failing in that, the members withdrew and composed a report—which turned out to be more critical of Wheelock than of his foes.
About a week after the committee hearing, the board of trustees held its annual meeting in Hanover. Incensed by Wheelock’s maneuverings, the eight majority members—“the Octagon”—were in no mood to temporize. They voted to remove Wheelock immediately from his positions as president, professor, and trustee. Then they named as the new president the Reverend Francis Brown, thirty-one years old, of Yarmouth, Maine.
Having regained the initiative, the men of the Octagon pressed on to confirm and justify what they had done, publishing a “Reply” to Wheelock’s “Sketches” and collecting affidavits to show that he had been incompetent as Dartmouth’s head. None of the eight was more active than William W. Thompson of Concord. Thompson, a United States senator, was a friend of Representative Webster; during congressional terms the two roomed in the same Washington house.
Before Wheelock could recover from the trustees’ blow, he received another shock when he saw what Trustee Thompson had written to one of the Dartmouth professors, in a letter that must have been opened and copied by a Wheelock ally in the Hanover JX)St office. “I have had a long conversation with Mr. D. W.,” the letter said, “by which it appears that a strong desire prevails that the ‘Reply,’ with the ‘Committee’s Report,’ should effectually put down a certain man.” From this and other sentences, Wheelock could not mistake the unhappy fact. Instead of helping him, Mr. D. W. obviously was taking a big part in the strategy talks of the opposing camp.
A friend of Wheelock’s wrote to Webster to protest. Back came the reply that Webster had heard from Wheelock too late to go to Hanover and aid him at the legislative committee’s hearing. Anyhow, Webster now said, “I regard that as no professional call.” Coldly, if disingenuously, he explained: “On the subject of the dispute between the president and the trustees, I am as little informed as any reading individual in society; and I have not the least inclination to espouse either side, except in proceedings in which my services may be professional.” Webster’s meaning in this bit of doubletalk and his motivation in changing sides in the battle are as obscure today as they must have been to Wheelock himself.
Throughout the ensuing autumn and winter the New Hampshire newspapers argued the Dartmouth question back and forth. The Democrats made Wheelock a martyr and Dartmouth a leading issue in the slate elections of March, 1816. In that year, the voters chose a Democratic governor, William Plumer, and a predominantly Democratic legislature. The trustees and their friends, including Webster, expected a strong counterattack from the Wheelock forces, now strategically placed. It was not long in coming.
This was the year without a summer. In June, 1816, while the legislature was meeting, snow fell in Concord, the ground fro/e, and the young corn was killed. For generations afterward, i8i(i was remembered as “eighteen hundred and froze to death.” Addressing the legislators in the chill statehouse, Governor Plumer condemned the Dartmouth charter as one that “emanated from royalty” and contained, as was to be expected, “principles congenial to monarchy.” It had no reason for existence in a republic like the United States.
Proud of his message, Plumer sent a copy to his party’s founder and patron saint, then in retirement at Monticello. “It is replete with sound principles, and truly republican,” Thomas Jefferson replied. “The idea that institutions established for the use of the Nation cannot be touched nor modified, even to make them answer their end … may, perhaps, be a salutary provision against the abuses of a monarch, but it is most absurd against the Nation itself.”
The Democrats in Concord were as much impressed as Jefferson. In response to the Governor’s message, they passed new legislation that changed the name of Dartmouth College to “Dartmouth University,” increased the number of trustees from twelve to twentyone, and provided for a board of overseers with a veto over the decisions of the trustees. The law gave the governor and his council the power to appoint the additional trustees and the overseers. In effect, it transformed Dartmouth from a private college to a state university.
Governor Plumer called the enlarged board of trustees, the University board, together at Hanover, in August. It was still cold, and morning after morning there was frost on the ground. The Hanover reception for the new Plumer trustees was as chilly as the weather. Somehow no one could find the key to the library room where the board customarily met, and when the meeting was called to order in a college office, none of the eight anti-Wheelock trustees was there. Without the required two thirds of the membership present, the Plumer men could do nothing.
The men of the Octagon could not do much, either. They had lost the college charter, seal, records, and account books.
These were in the hands of the treasurer of the board, and he was an old crony of Wheelock’s named William H. Woodward. He was, of course, on the side of the new University.
With this deadlock the first phase of the public controversy, the strictly political one, came to an end. The second, the legal and constitutional (as well as political) phase, was to begin after a lull of several months.
In February, 1817, Governor Plumer renewed his attack. He called a second meeting of the University board, this time in Concord, not in Hanover. No longer could the anti-Wheelock trustees frustrate the proceedings by staying away. The legislature had reduced the quorum requirement, so that the nine new Plumer appointees, plus the four original pro-Wheelock members, would suffice. At this Concord meeting the University board removed President Brown, two professors, and three of the Octagon trustees. The board then restored Wheelock to the presidency and named his son-in-law, William Allen, to a professorship.
To Wheelock, who had remained in Hanover, all this was gratifying, though it had come a little late. He now lay in bed, propped up on pillows, coughing his life away. He took some consolation, however, from writing his last will and testament. In it he bequeathed property worth $20,000 to Dartmouth University and made it clear that the bequest would be void if, in place of the University, the old College should ever be restored. Too weak to perform the duties of his office, he let his son-in-law serve as acting president.
That same February the College trustees, refusing to accept the new state of affairs, took the advice of Webster and other friends and resorted to a lawsuit. They undertook an action in trover, i.e. , an action based upon the common-law principle (the opposite of “finders keepers”) that one who finds goods must return them to the owner on demand. In this case the trustees called upon their deserting treasurer, William H. Woodward, to return to them the charter, seal, records, and account books, and to pay $50,000 damages besides. Woodward himself was judge of the Court of Common Pleas of Grafton County, before which the action was brought, and so the case was transferred directly to the New Hampshire Superior Court at Exeter.
While the College trustees were trying to recover the items that Woodward had “found,” they lost another big one: the Dartmouth plant itself. The spring term of the College—or was it the University? —was scheduled to begin on March 3. A few days ahead of time three “superintendents of buildings,” representing the University, called upon President Brown of the College and asked for a set of keys. He refused to give them up. So the University men enlisted a mason and a carpenter and went the rounds of Dartmouth Hall, the chapel, and the rest of the buildings, forcing the doors and installing new locks.
“There were several boys with them, and among others,” the waggish Dartmouth Gazette reported, “some or all of the aborigines who are in this place for the purpose of acquiring civilized habits.”
When the term opened, the University had the buildings, but the College had all but one of the students. These stalwarts met in borrowed rooms in the village. They were summoned to classes by a cow horn: the University forces commanded the belfry.
The term passed quietly enough. When Wheelock finally died, in April, he was duly mourned by a large crowd, including many of his old opponents, at the funeral in the meetinghouse. But the controversy did not die with him; he was merely replaced by his sonin-law as University president. When, in July, President James Monroe arrived in Hanover on the way from Boston, where even the Federalists had hailed him for bringing an “Era of Good Feelings,” he was awarded two honorary degrees, one from the College and another from the University.
At the beginning of the fall term, in September, 1817, the College numbered ninety-five students, the University fourteen. The campus continued calm until November, when news came that the state Superior Court had decided in favor of Woodward and against the College trustees. Only one student now shifted from the College to the University, but the University students, though few, dared to attempt a coup.
Earlier the University had taken over the College library, containing approximately 4,000 volumes. The College boys had managed, however, to hold on to the quarters of the two literary societies, the Social Friends and the United Fraternity, on the second floor of Dartmouth Hall. Together, these societies owned as many books as the library, and newer and better ones.
On the night of November 11, after bedtime, a band of University students and villagers, along with University Professor Nathaniel H. Carter, sneaked into Dartmouth Hall. At the entrance to the room of the Social Friends, they bunched togetner and crasnecf into the door. They could not move it. So one of them took an axe to the door and cut a hole big enough to crawl through.
The noise awakened some of the College boys. They arrived in time to arm themselves with sticks of firewood from the hallway and to trap the enemy inside the Social Friends’ room. “It appears to me we are in a cursed poor scrape,” the village shoemaker, one of those inside, was heard to say. “I had rather be in a nest of hornets than among the college boys when they get mad and roused up.” Shoemakers evidently weighed their words carefully in those days.
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. They had violated an accepted legal principle: only the courts, not the legislature, could take away a vested right.
- 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. 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.”
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.