USA > New Hampshire > History of New Hampshire, Volume III > Part 4
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The convention met at Hartford, December 15, 1814. Massachusetts, Connecticut and Rhode Island sent accredited delegates. New Hampshire was represented by two informal delegates, Benjamin West from Cheshire county, and Mills Olcott from Grafton. Later in the convention William Hall,
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Jr., appeared as the sole representative of Vermont. The leading men in the convention were George Cabot, Nathan Dane, William Prescott and Harrison G. Otis of Massa- chusetts, and Chauncey Goodrich and Roger M. Sherman of Connecticut. They deliberated for about twenty days, and an agent of the United States government was in Hartford to spy out what was being done, but the convention sat with closed doors, and nobody ever learned just what was said. A journal of the proceedings was published not long after their adjournment, in which there appears nothing more than was freely talked in State legislatures and public newspapers. The convention never was blamed for what it published, but for the supposed treasonable purpose that called them together. The nation needed their support rather than their criticism. They deprecated disunion and urged ways of preventing it, but they should not have considered its possibility, especially in the time of war, when the President needed help from all the States. The responsibility of holding such a convention rests with Massachusetts, and various defenses have been set up for it, but the battle of New Orleans and the speedy end of the war rendered a second proposed meeting unnecessary and brought the members of the Hartford convention into public odium.
The convention reaffirmed the position taken already by the New England States and New York, that the President of the United States had no power to order the militia of any State to service beyond their respective State boundaries. It recom- mended that each State should prepare to defend itself and to assist neighboring States on request of the governor thereof. Seven amendments of the Constitution were proposed: I. Rep- resentation and taxation according to free population. 2. No new State to be admitted into the Union without the concur- rence of two-thirds of both Houses. 3. No embargo for more than sixty days. 4. No non-intercourse act except by two- thirds of both Houses. 5. No declaration of war without a similar vote. 6. No naturalized person to be a member of the Senate or House of Representatives of the United States, nor to hold any civil office under the authority of the United States. 7. No second term of office for the President of the United States, nor shall the President be elected from the same State two terms in succession. Surely there is nothing revolutionary
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in such suggestions, nothing to indicate disloyalty to the Amer- ican Union. The seventh proposed amendment must have been aimed at the restriction of the power of Virginia. She was furnishing too many presidents to suit Massachusetts.
A glance at the two men in this convention from New Hampshire is enough to assure us that they had no other purpose in view than the welfare of the country. Benjamin West was a native of Rochester, Massachusetts, and after study- ing at Nassau and graduating at Harvard in 1768, he studied for the ministry but found that he had no taste for that calling. Then he studied law and practised in Charlstown all his life, excepting a short stay in South Carolina in the early years of the revolution. He was of a retiring, quiet disposition averse to holding public office, though often urged so to do. As a pleader at the bar he was acknowledged to stand at the head. In private character as a Christian gentleman and citizen his life was a model of excellence. He was chosen delegate to Hartford by a caucus of twenty towns of Cheshire county. Some warned him of danger in going, but he replied that he was getting old and he might save the neck of some younger man. He was a Federalist and opposed to the war and sought some way to end it. He died in Charlestown, in 1817, highly respected and valued for his character, aid in public education and legal preeminence.
Mills Olcott, son of Gov. Peter Olcott of Vermont, grad- uated at Dartmouth in 1790, having been fitted for college at the age of twelve. He studied law with Benjamin West and settled in Hanover, where he spent his life. He was for several years treasurer of Dartmouth College and longer one of its trustees. He became prominent as a lawyer and useful citizen, enjoying the confidence of his fellow citizens in a high degree. He died at Hanover in 1845, aged seventy-one years. One of his daughters married Rufus Choate. The suspicion can not be entertained by any candid mind, that such men as Benjamin West and Mills Olcott, -- and the rest of the Hartford conven- tion were like them,-were hatching secession and saying treasonable things in the secrecy of that meeting. They simply voiced the discontent and the policy of the Federalists of New England. Some hoped and others feared that they would say something radical and extreme.
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The treaty of Ghent was concluded December 24, 1814, two weeks before the needless battle of New Orleans. The treaty left unnoticed the main causes of the war, leaving some disputed questions to the settlement of time and sobered minds. The United States had expended in the war over a hundred million dollars and sacrificed thirty thousand lives, besides great destruction of property and commerce. The whole claim of New Hampshire against the United States for expenses incurred during the war was $64,552.20, of which $12,261.85 were rejected as inadmissible.3 The export trade had fallen to about one- twentieth of its former amount. "Some 1400 American vessels, with over 20,000 seamen had been captured by British cruisers." On the other hand, 2,416 British vessels had been captured by us, including fifty-six warships. The legislature of New Hamp- shire raised the question, "What has been gained?" There was no answer. We could have gained vastly more without the war, by patient and courteous diplomacy. We had no hatred for England and Canada; they had no hatred for us. We have lived peaceably ever since, with no need of a navy on the Great Lakes. The war and the Hartford Convention put an end to the Federalist party. The military leaders, like Harrison and Jackson, came to the front as nominees of a political party. War boosts to eminence some men that otherwise would remain unknown. Is that a reason for gingoism?
3 House Journal for 1820, p. 358.
Chapter III THE DARTMOUTH COLLEGE CASE
Chapter III THE DARTMOUTH COLLEGE CASE.
Importance of the Case-Its Origin-Division in the Church-The Case
Mixed with Politics-Dartmouth University versus Dartmouth College -Legalized Effort to Steal the College-Two Years of Peaceable Op- position on the College Campus-President Brown-Death of President John Wheelock-Suit for the Recovery of College Property-The Col- lege Cast in the Suit at Exeter-Appeal to the Supreme Court of the United States-Ground of the Appeal-Impairment of the Obligation of a Contract-Famous Speech of Webster-The Decision and Its Far- reaching Results.
SO 0 many restatements of this famous case have been put into print that nothing new can be added in the narration of the historic facts. By omitting much that might weary and try the patience of the reader perhaps attention may be arrested and held. The case forms an important part of the history of New Hampshire because of its bearings upon the rights of all literary institutions and because of the far-reaching decision concerning a constitutional principle. The prominent part that was taken in this case by Daniel Webster adds special interest to every native of the Granite State.
The case had its origin in the unyielding obstinacy of Presi- dent John Wheelock and in an irreligious quarrel between opposing factions in religion. The theory of Wheelock was that Dartmouth College was practically his private inheritance and that therefore his wishes must be respected and obeyed. His father had made the institution and devised it to him, naming him as his successor in the presidency. His immediate relatives made up the faculty. Two of the trustees were his brothers- in-law. The number of students during his administration had grown remarkably. Dartmouth ranked with Yale in reputation. It was the pride of New Hampshire.
There was a division in "The Church of Christ at Dart- mouth College," whose edifice, reared in 1795, belonged not to the college but to residents of Hanover who had built it. These
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sought rental from the college, and the trustees voted that "each member of the college shall pay one dollar' on the second Wednesday in March for preaching and the use of seats in the meeting house for the ensuing year." This raised a storm of protest. It was hard enough to be obliged to go to church, and to pay for listetning to Professor Smith was thought by the students to be unendurable. Opposition was such that the trustees revoked the order. Then the president and all the students, with Professor Smith, seceded and held their religious service in the college chapel. A compromise was made in 1798 and all went back to the church. Soon there was another wrangle as to who should do the preaching. This time the people of the town seceded and organized "The Congregation in the Vicinity of Dartmouth College" and called Professor Shurtleff to be their minister. The same meeting house was used by both factions, but the brethren did not dwell together in unity. It could not be said of them as it was of the early Christian Church, "Behold how these Christians love one another." Wheelock sought to oust Shurtleff; the trustees, now become more inclined to Congregationalism than to Pres- byterianism, thought it better to oust Wheelock. They warned him indirectly and curbed his powers. The controversy got into the public newspapers and was heralded all over the State and in Boston. Wheelock and his friends published pamphlets, assailing the trustees in the vitriolic manner of the times. The dispute became political, the Federalists siding with the trustees and the Democrats with President Wheelock. Dartmouth Col- lege became the leading issue in the next State election, and members of the legislature were chosen as being favorable or unfavorable to the college president.
In 1815 Wheelock applied to the legislature for help, alleg- ing that the trustees were scheming in aid of a party or sect and so undermining "the political independence of the people." He asked for a committee of investigation and his request was granted. The committee went to Hanover, and Daniel Webster was expected by Wheelock to be present in his aid, but the advocate failed to appear, as the result of a misunderstanding, and soon it was found that Mr. Webster was ranked on the side of the trustees. The outcome of the dispute with the trustees was that President Wheelock was summarily deposed
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from office and the Rev. Francis Brown of Yarmouth, Maine, who had graduated from the college in 1805, was elected in his stead.
At the next State election, the Democrats won and Gov- ernor Plumer was in the executive chair. The legislature and governor were partisans of Wheelock and were in favor of a State University. Daniel Webster is said to have favored at first such a university, to be located at Concord, as a settlement of the Dartmouth controversy. The legislature of 1816 thought it easier to take over Dartmouth College and convert it entirely to the purposes of the State, and some even now think that if they had succeeded, it would have been better for Dartmouth. That institution, however, and its alumni are well satisfied with its record. A bill was passed, changing the name of the college to Dartmouth University. The number of the trustees was increased from twelve to twenty-one. The board of overseers was made up of twenty-five, including ex officio the governor and council, the president of the senate and speaker of the house, and the governor and lieutenant-governor of Vermont. These boards after long delay in efforts to get together a quorum and after legislative acts to assist them organized the University, with John Wheelock as President and departments of liberal arts, theology, law and medicine, on paper. The legislature enacted that any person who should assume to perform the duties of president or professor in the college, except as the legislature authorized them, should forfeit for each offense five hundred dollars.
The trustees of the college refused to take part in the meetings of the trustees of the university, and this was what prevented a quorum. Only Judge Woodward, the secretary and treasurer of the college, and brother-in-law to President Wheelock, went over to the new board, carrying the seal of the college, the records and the college property. This effort to transfer the property became the foundation for the subsequent suit at law.
The college faculty kept right on with their work, in spite of the threatened penalties of the law, and they were not dis- turbed. The students remained with the college. A very few students, mainly from Hanover, enrolled with the university. The former were called "hoi polloi"; the latter were "the few yet
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brave." They answered to the ringing of the same bell. They passed each other on the college campus for two years with only smiles and jests. Civil war began only when the university men tried to take away the books that belonged to the college library. Then axes and clubs were brandished, but the few university students succumbed to the overwhelming numbers of the college, and the books remained with the college. In this fracas some of the professors took part. Both parties were waiting for the courts to decide who had lawful possession of the college and its appurtenances.
Nothwithstanding an invitation to President Brown to become the head of Hamilton College at nearly double the salary he had at Dartmouth, he decided to remain and do battle for the college. In this fight he had the aid of Professors Shurt- leff and Adams. With them increasingly were the sympathies of the people, and the ministers and churches were strongly on the side of the college. To them it seemed to be an effort of a Democratic legislature to seize and control an institution that had been founded by private beneficence and assisted but feebly by the State. State Universities were then a new conception. Almost all the colleges of the country had been founded by religious people for the furtherance of the aims of the church. To this day "godless" State Universities are decried by some denominational zealots. A day of prayer was appointed for the college, that its enemies might not overthrow it.
On the fourth of April, 1817, President John Wheelock, died, after having given to the University property valued at twenty thousand dollars, and other property was given in his will, conditionally. His son-in-law, Rev. William Allen, suc- ceeded him as president, who later became president of Bowdoin College. Dartmouth University at its opening March 5, 1817, had one student in attendence, while the college had one hundred and thirty students besides those in the Medical School.
The trustees of the college brought suit against Judge Woodward for the recovery of the college seal and other prop- erty. The trial began at Haverhill in May, 1817 and the champions of the college were Jeremiah Smith and Jeremiah Mason, two of the ablest lawyers in New Hampshire. On the other side were employed George Sullivan and Ichabod Bartlett, both versed in the law and eloquent pleaders. The case was
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continued in September at Exeter. Meanwhile the State and college were honored by a visit from President Monroe and at the commencement thirty-nine were graduated from the col- lege, eight from the university and eleven from the medical school.
The closing argument at Exeter was made by Daniel Webster, and many ministers and lawyers were present to hear the pleadings. Each one of the five lawyers employed spoke for two hours or more. Mr. Webster closed with an eloquent appeal to the emotions, which drew tears from his own and other eyes, and the same appeal, in an elaborated form, was the peroration of his great argument later at Washington.
A competent critic has made an able analysis of Mr. Mason's brief in this case.1 He argued that "the acts of the legislature were not obligatory, I, because they were not within the general scope of legislative power; 2, because they violated certain provisions of the Constitution of New Hampshire; 3, because they violated the Constitution of the United States," by impairing the obligation of a contract made in the original charter of the college. The counsel for the college all relied upon the strength of the first argument. They urged that the college was founded by private persons, who had given money for particular ends and that the charter was given to perpetuate those ends. Mason declared that the State had no more right to take the property of Dartmouth College and give it to another corporation than it had to take his house from him without paying for it and give it to another man. Little was said about impairing the obligation of contracts, although on this point alone appeal was made to the United States supreme court. Its paramount importance was overlooked by all the lawyers at first. It had been suggested by President John Wheelock a few years before. Mr. Lodge says that "this doctrine of im- pairing the obligation of contracts, which produced a decision in its effects more far-reaching and of more general interest than perhaps any other ever made in this country, was im- ported into the case at the suggestion of laymen, was little esteemed by counsel, and was comparatively neglected in every argument."
1 Daniel Webster, by Henry Cabot Lodge, p. 78.
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The decision of the court was reserved for the next term, which was held at Plymouth. Webster expected Plumer's court to sustain Plumer's opinion and wishes, and it did. The State had a right to control institutions it had chartered and aided, and the management of colleges and universities must suit changing political parties. Everybody expected an appeal from such a decision, for it had been the common talk through- out the State that the case would go to the supreme court of the United States. Here the case was entrusted to Mr. Webster and Mr. Joseph Hopkinson of Philadelphia, author of Hail Columbia. Mason and Smith dropped out. The opposing coun- sel were John Holmes, afterward senator from Maine, and William Wirt, attorney general of the United States. Neither of these was a match for even Hopkinson, and Webster met no arguments that had not been advanced in the lower court. All the legal points had been well considered in the previous argu- ments of Smith and Mason, and Webster himself acknowledged that all he did was to arrange and restate their arguments. He introduced much irrelevant matter and shrewdly and indirectly appealed to political prejudices, hinting that the "Jacobins" were attacking a Federalist institution. The case was won by Webster not so much by use of law and reason as by eloquence and pathos. It was his emotional oratory that swayed the judges.
Mr. Webster occupied five hours in the delivery of his argument, yet the printed report could easily have been deliv- ered in two hours. The latter is a condensation of the legal argument, dry and destitute of emotion. The political sugges- tions, the fervid emotions, the eloquent appeals, the overwhelm- ing peroration have been left out of the law abstracts that report the great speech. We owe much to a letter of Professor Chauncey A. Goodrich, of Yale College, to Rufus Choate. Professor Goodrich went to Washington for the very purpose of hearing Mr. Webster. His letter is as follows:
Mr. Webster entered upon his argument in the calm tone of easy and dignified conversation. His matter was so completely at his command that he scarcely looked at his brief, but went on for more than four hours with a statement so luminous and a chain of reasoning so easy to be understood, and yet approaching so nearly to absolute demonstration, that he seemed to carry with him every man of his audience, without the slightest effort of uneasiness on either side. It was hardly eloquence, in the strict sense of the
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term; it was pure reason. Now and then for a sentence or two his eye flashed and his voice swelled into a bolder note, as he uttered some em- phatic thought, but he instantly fell back into the tone of earnest conversa- tion, which ran throughout the great body of his speech. A single circum- stance will show the clearness and absorbing power of his argument. I observed Judge Story sit, pen in hand, as if to take notes. Hour after hour I saw him fixed in the same attitude; but I could not discover that he made a single note. The argument ended, Mr. Webster stood for some moments silent before the court, while every eye was fixed intently upon him. At length, addressing Chief Justice Marshall, he said,-
"This, sir, is my case. It is the case, not merely of that humble institu- tion, it is the case of every college in our land. It is more, it is the case of every eleemosynary institution throughout our country, of all those great charities founded by the piety of our ancestors to alleviate human misery, and scatter blessings along the pathway of human life. 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 legislatures 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? 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 our country. You may put it out; but if you do, 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 the land. It is, sir, as I have said, a small college, and yet there are those that love it-"
Here the feelings which he had thus far succeeded in keeping down, broke forth. His lips quivered; his firm cheeks trembled with emotion; his eyes were filled with tears; his voice choked, and he seemed struggling to the utmost, simply to gain the mastery over himself which might save him from an unmanly burst of feeling. I will not attempt to give you the few broken words of tenderness in which he went on to speak of his attachment to the College. The whole seemed to be mingled with the recollections of father, mother, brother, and all the privations through which he had made his way into life. Every one saw that it was wholly unpremeditated,- a pressure on his heart which sought relief in words and tears.
The court-room during these two or three minutes presented an extraordinary spectacle. Chief Justice Marshall, with his tall, gaunt figure bent over as if to catch the slightest whisper, the deep furrows of his cheek expanded with emotion, and eyes suffused with tears; Mr. Justice Washing- ton at his side with his small and emaciated frame, and countenance more like marble than I ever saw on any other human being, leaning forward with an eager, troubled look; and the remainder of the court at the two extremi- ties, pressing, as it were, towards a single point, while the audience below were wrapping themselves round in closer folds beneath the bench to catch each look, and every movement of the speaker's face. There was not one among the strong-minded men of that assembly who could think it
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unmanly to weep, when he saw standing before him the man who had made such an argument melted into the tenderness of a child.
Mr. Webster, having recovered his composure and fixed his keen eye upon the Chief Justice, said, in that deep tone with which he sometimes thrilled the heart of an audience,-
"Sir, I know not how others may feel" (glancing at the opponents of the College before him, some of whom were its graduates), "but, for myself, when I see my alma mater surrounded, like Caesar in the senate house, by those who are reiterating stab upon stab, I would not, for this right hand, have her turn to me and say, Et tu quoque, mi fili-And thou too, my son."
He sat down; there was a deathlike stillness throughout the room for some moments; every one seemed to be slowly recovering himself and coming gradually back to his ordinary range of thought and feeling.2
Professor Goodrich was mistaken in supposing this perora- tion to be wholly unpremeditated. It was an expansion and modification of what he had said at Exeter. It was carefully thought out, and probably its words were to a large extent held in memory for this occasion. One can be as emotional at his study-table as before a great audience. It is the theme, the thought, that awakens emotion, as when Hawthorne read with tears some portions of his Scarlet Letter to his wife, where both knew he was speaking of imaginary persons. An emo- tional nature thus expresses itself almost irresistibly, and the irrepressible gets home to the hearts of others, whether one is dealing with fiction or with facts, whether one uses sound or sophistical arguments. Emotion is no criterion of truth. It is, however, a powerful part of oratory, having sometimes hypnotic influence.
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