USA > New Hampshire > The history of New Hampshire, from its discovery, in 1614, to the passage of the Toleration act, in 1819 > Part 27
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the trustees, excite a spirit of attention in the offi- CHAP. cers and students of the college, and give to the XII. legislature such information as would enable them to act with greater propriety upon whatever may relate to that institution.
" The college was formed for the public good ; not for the emolument of its trustees ; and the right to amend and improve acts of incorporation of this nature has been exercised by all gov- ernments, both monarchial and republican. Sir Thomas Gresham established a fund to support lecturers in Gresham college, in London, upon the express condition that the lecturers should be unmarried men, and upon their being married, their interest in the fund should absolutely cease; but the British parliament, in the year 1768, passed a law removing the college to another place, and explicitly enacted that if the lecturers were mar- ried, or should marry, they should receive their fees and stipend out of the fund, any restriction or limitation in the will of the said Gresham to the contrary notwithstanding. In this country, a number of the states have passed laws that made material changes in the charters of their colleges ; and in this state, acts of incorporation, of a similar nature, have frequently been amended and changed by the legislature. "By the several acts incorpo- rating towns their limits were established ; but whenever the legislature judged that the public good required a town to be made into two, they have made the division, and in some instances against the remonstrance of a majority of its in- habitants. In the charter of Dartmouth college it is expressly provided that the president, trus-
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CHAP. tees, professors, tutors, and other officers, shall XII. take the oath of allegiance to the British king ; but if the laws of the United States, as well as those of New Hampshire, abolished by implica- tion that part of the charter, much more might they have done it directly and by express words. These facts show the authority of the legislature to interfere upon the subject ; and I trust you will make such further provisions as will render this important institution more useful to mankind."
These views of Governor Plummer met the ap- probation of a majority of both senate and house. Accordingly, on the twenty-seventh of June, 1816, a law was passed assuming to the state of New Hampshire complete jurisdiction over the college, and changing its name to Dartmouth university.
To this law the trustees refused to submit.
Jour- nal of the Senate, Nov. session, 1816, p. 12.
In obedience to the law the governor summoned the trustees and overseers of Dartmouth university to meet at Hanover on the twenty-sixth of Au- gust, 1816. But a quorum did not obey, nor did they answer the governor's request. Two days after, they declared that the law of the state, to amend the charter and enlarge the corporation of Dartmouth college, was, in point of precedent and principle, dangerous to the best interests of society ; that it subjected the college to the arbi- trary will and pleasure of the legislature ; that it contained palpable violations of their rights ; was unconstitutional ; and that they would not recog- nise or act under its authority.
Jour- nal of the Senate, Nov. session, 1816, p. 13.
At the opening of the November session their proceedings were laid before the legislature, and upon them Governor Plummer thus remarked :--
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" It is an important question, and merits your CHAP serious consideration, whether a law, passed. and approved by all the constituted authorities of the state, shall be carried into effect ; or whether a few individuals, not vested with any judicial au- thority, shall be permitted to declare your statutes dangerous and arbitrary, unconstitutional and void. Whether a minority of the trustees of a literary institution, formed for the education of your chil- dren, shall be encouraged to inculcate the doctrine of resistance to the law, and their example toler- ated in disseminating principles of insubordination and rebellion against government.
" Believing you cannot doubt the course proper to be adopted on this occasion, permit me to re- commend the passage of a bill to amend the law respecting Dartmouth university. Give authority to some person to call a new meeting of the trus- tees and overseers ; reduce the number necessary to form a quorum in each board ; authorize those who may hereafter meet to adjourn from time to time till a quorum shall assemble; give each of the boards the same authority to transact busi- ness at their first, as they have at their annual meet- ings ; and, to remove all doubts, give power to the executive to fill up vacancies that have or hereafter may happen in the board of trustees ; and such other provisions as will enable the boards to carry the law into effect and render the institution use- ful to the public."
During the year, two of the original board of trustees, together with the nine who had received their appointments from the executive of the state, constituting a majority of the whole number, as-
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CHAP. sembled at Hanover. They reappointed John XII. Wheelock to the presidency, and elected William H. Woodward, Esq., treasurer of the university. Thus Dr. Wheelock was finally restored to the presidency of the Dartmouth university, to the great joy of the friends of science and liberal principles. Thus did the veteran president, after years of persecution, springing from the intoler- ance of a religious sect, return again to his post in the field of literature. His friends hailed his return as "a triumph of liberty and justice over intolerance and oppression." To the use of the university the trustees committed the use of all the college buildings ; and entrusted the records, books of account, and other property of the institution to the treasurer they had appointed. In the mean- time, three fourths of the old board of trustees, claiming the exclusive and absolute control of the college property under their charter, and declaring the law to be an invasion of their constitutional rights, refused to accept of its provisions. Under their direction, the officers of the old college, re- taining a large majority of the students, continued their usual course of instruction, in apartments procured for the purpose.
Thus we had two conflicting institutions in the same town, a university and a college, each claim- ing the control of the same property and each coming in active competition with the other.
The old trustees and professors busied them- selves in writing volumes of abuse against the state government and Governor Plummer. Pre- vious to the March election of 1817, they pub- lished the most inflammatory and treasonable
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appeals to the people, with the hope of influ- CHAP. encing the popular vote. The natural effect of XII. this was to give the republicans a great gain, especially in the vicinity of Hanover.
When the committee, appointed by the legisla- ture to take possession of the buildings and appa- ratus of the university, applied to President Brown, he refused to surrender the keys, and the commit- tee were obliged to break open the buildings. Brown and the professors then withdrew to other buildings, taking with them such of the students as chose to follow them, and then organized classes and continued to instruct them during the existence of the university.
The trustees of the university, early in Febru- ary, 1817, assembled at Concord and preferred charges against President Brown and Professors Shurtleff and Adams; the substance of which was, a refusal to yield obedience to the late act of the legislature ; and cited them to appear before them on the twenty-second of February, to show cause Feb.22. 1817. why they should not be removed. On the twenti- eth of February, they sent to the board an answer, refusing to comply with the citation, but couched in courteous terms, and setting forth their resolve to appeal to the highest judicial tribunals. On the twenty-eighth of February, they published an address to the public, in the same tone, declaring the votes of the university trustees, removing them from office, as wholly unauthorized and destitute of any legal effect ; and affirming that they were still, as they had uniformly claimed to be, officers of Dartmouth college, under the charter of 1769-
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CHAP. and that they had resolved to assert their corpo- XII.
rate rights. They frankly stated that they had taken into consideration the act of June, and had voted "not to accept its provisions." They re- fused to take the oath of allegiance to the United States and to the state of New Hampshire. Their charter required them to take an oath of allegiance to the British crown ; but this they had omitted to do since the American revolution.
They disclaimed any intention to offer forcible resistance to the laws, but intimated plainly in their address that their rights of conscience had been invaded, and oppression practised upon them to such an extreme degree as to greatly endanger or defeat the great ends of civil government-that in the act of June the legislative branch of govern- ment had transcended its legitimate power, and had assumed to perform certain acts which the constitution had assigned to the province of the judicial branch. This address and answer was signed by Francis Brown, Ebenezer Adams, and Roswell Shurtleff. The people read it and were greatly exasperated. It seemed to them that the professors-entrenched behind a British charter, and actuated by a preference for monarchy- were impudently defying the constituted author- ities of the state, and trampling upon the consti- tution and the laws. Denunciation was showered upon the professors from all quarters. The pa- pers of the day attacked them with violence, and denounced them as an "Orthodox junto," &c. The professors in return poured forth volleys of epithets upon the state government and upon Gov-
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ernor Plummer ; stigmatizing them as " agrari- CHAP. ans," " infidels," "democrats," "French jaco- XII. bins," "villains," and "sans-cullotes."
The papers in the interest of the college de- scribed the committee sent by the legislature to take possession of the college, as a gang of unprin- cipled villains, who had risen up in defiance of law and had wantonly broken open and taken posses- sion of the college buildings.
The papers of the people promptly returned the attack ; and compared the charter professors to the infuriated bigots of popery in the dark ages- as "a set of abominable intolerants," "aspiring not only to the sole direction of our literature, but to the management of our government "-as " the gangrened persecutors of President Wheel- ock," "like the Jews who had sworn not to eat until they had killed Paul "-as " hunting up evi- dence against Wheelock," and having the expense "clubbed against them," and when they had failed of procuring evidence, "hurling him from his station, without the sanction of the usual cere- mony." Such was the tone of public discussion. The popular voice was loud against the profes- sors ; and they, in their turn, poured forth, if pos- sible, louder execrations and more bitter vials of wrath upon the people.
In the heat of the contest, in April 1817, Presi- dent Wheelock died, at the age of sixty-three, la- mented even by his persecutors :- a ripe scholar- a liberal Christian-an ornament to literature-an unrivalled instructer-a good man-vigorous in intellect-assiduous in toil. The most industrious of his pupils, in the vigor of youth and inspired by
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CHAP. emulation, vainly strove to outwatch the midnight XII. lamp of their instructer. All admitted that his virtues demanded a durable monument.
Meanwhile the contest continued. The leading members of the legislature, who advocated the state authority and approved of the course pur- sued by the legislature, were denounced by the college papers as " vipers," "slanderers," and " executioners." The professors having failed to affect the people, next sought to intimidate the superior court by proclaiming that the act of the legislature could be regarded in no other light than as a war against religion; and if the judges should sustain it, "the execrations of this age and posterity awaited them." In this movement the professors were equally unsuccessful.
The old board of trustees brought an action of trover against the treasurer of the university, for the recovery of " books of record, charter, com- mon seal and books of account," which they alleged to be their property. The defendant set up as a defence, the laws of 1816, and his appoint- ment ; by virtue of which laws and appointment he claimed a legal right to hold the property in con- troversy in his possession. The general question was, whether the acts referred to were binding on the plaintiffs without their assent.
When the case came on for final adjudication in the superior court of New Hampshire, the Hon- orable Jeremiah Mason, as counsel for the plain- tiffs, maintained that these acts were not binding. 1. Because they were not within the scope of the legislative power. 2. Because they violated cer- tain provisions of the constitution of New Hamp-
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shire. 3. Because they violated the constitution CHAP. of the United States. XII.
In June, the case was argued in Grafton coun- 1817. June. ty, by Smith and Mason for the college, and by Sullivan and Bartlett for the people; but was continued for a further hearing in Rockingham county in the following September. It was finally Sept. decided in the superior court of the state, at Ply- mouth, in Grafton county, on the sixth of No vember. Chief Justice Richardson gave the opin- Nov. 6. ion of the court, drawn up in that lucid and cogent style for which he was distinguished, and which made the opinion celebrated for its elegance as well as for its learning, and for its harmony with the popular opinion.
In delivering his opinion, Chief Justice Rich- ardson commenced by adverting to the distinction between public and private corporations ; the lat- ter constituted for the immediate benefit of indi- viduals-the former for the advantage of the whole community. Dartmouth college, in the language of its charter, was established "to encourage the laudable and charitable design of spreading Chris- tian knowledge among the savages of our Ameri- can wilderness, and also that the best means of education be established in the province of New Hampshire for the benefit of said province." The trustees had no greater interests in these objects than any other individuals in the community. They had no interest in the institution which they could sell or transfer. Should all its property be lost, there would be no private loss to them. The franchises of the college were exercised for the public benefit ; and for the public benefit its char-
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CHAP. ter was granted. It must be regarded, therefore, XII.
as a public corporation.
" In order to determine the question submitted to us," said he, " it seems necessary, in the first place, to ascertain the nature of corporations .- A corporation aggregate is a collection of many individuals united into one body under a special name, having perpetual succession under an arti- ficial form, and vested by the policy of the law with the capacity of acting in several respects as an individual, and having collectively certain fac- ulties, which the individuals have not. A cor- poration considered as a faculty, is an artificial, invisible body, existing only in contemplation of law : and can neither employ its franchises nor hold its property, for its own benefit. In another view, a corporation may be considered as a body of individuals having collectively particular facul- ties and capacities, which they can employ for their own benefit, or for the benefit of others, according to the purposes for which their particular faculties and capacities were bestowed. In either view it is apparent that all beneficial interests both in the franchises and the property of corporations, must be considered as vested in natural persons, either in the people at large, or in individuals ; and that with respect to this interest, corporations may be divided into public and private.
"Private corporations are those which are cre- ated for the immediate benefit and advantage of individuals, and their franchises may be consid- ered as privileges conferred on a number of indi- viduals, to be exercised and enjoyed by them in the form of a corporation. These privileges may
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CHAP. .XII.
be given to the corporators for their own benefit, or for the benefit of other individuals. In either case the corporation must be viewed in relation to the franchises as a trustee, and each of those, who are beneficially interested in them, as a cestui que trust. The property of this kind of corporations, and the profits arising from the employment of their property and the exercise of their franchises, in fact belongs to individuals. To this class be- long all the companies incorporated in this state, for the purpose of making canals, turnpike roads and bridges ; also banking, insurance and manu- facturing companies, and many others. Both the franchises and the property of these corporations exist collectively in all the individuals of whom they are composed ; not however as natural per- sons, but as a body politic, while the beneficial in- terest in both is vested severally in the several mem- bers, according to their respective shares. This interest of each individual is a part of his property. It may be sold and transferred, may, in many cases, be seized and sold upon a fieri facias, and is assets in the hands of his administrator. This is by no means a new view of this subject. The supreme court of Massachusetts, in the case of Gray vs. the Portland Bank,* most evidently viewed corpo- rations of this kind in the same light. In the case of the Bank of the United States vs. Devaux, t the supreme court of the United States decided, that in determining a question of jurisdiction de- pending upon the citizenship of the parties, and a corporation being a party, they could look to the citizenship of the individual corporators as of the
* 3 Mass. Rep. 379.
+ 5 Cranch, 61.
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CHAP. real litigants. The rejection of a corporator as a XII. witness, in cases where the corporation is a party, on the ground of private interest, is a matter of familiar practice in all our courts.
"Public corporations are those which are cre- ated for public purposes, and whose property is devoted to the objects for which they are created. The corporators have no private beneficial inter- est, either in their franchises or their property. The only private right which individuals can have in them, is the right of being, and of acting as members. Every other right and interest attached to them can only be enjoyed by individuals like the common privileges of free citizens, and the common interest, which all have in the property belonging to the state. Counties, towns, parishes, &c., considered as corporations, clearly fall within this description. A corporation, all of whose fran- chises are exercised for public purposes, is a pub- lic corporation. Thus if the legislature should incorporate a number of individuals, for the pur- pose of making a canal, and should reserve all the profits arising from it to the state, though all the funds might be given to the corporation by indi- viduals, it would in fact be a public corporation. So if the state should purchase all the shares in one of our banking companies, it would immedi- ately become a public corporation. Because in both cases all the property and franchises of the corporation would in fact be public property. A gift to a corporation created for public purposes is in reality a gift to the public. On the other hand, if the legislature should incorporate a bank- ing company for the benefit of the corporators,
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and should give the corporation all the necessary CHAP. funds, it would be a private corporation. Because XII. a gift to such a corporation would be only a gift to the corporators. So, should the state purchase a part of the shares in one of our banks, it would still remain a private corporation so far as individ- uals retained a private interest in it. Thus it seems, that whether a corporation is to be con- sidered as public or private, depends upon the objects for which its franchises are to be exer- cised ; and that as a corporation possesses fran- chises and property only to enable it to answer the purposes of its creation-a gift to a corporation is in truth a gift to those who are interested in those purposes.
"Whether an incorporated college, founded and endowed by an individual, who had reserved to himself a control over its affairs as a private visi- tor, must be viewed as a public or as a private corporation, it is not necessary now to decide, be- cause it does not appear that Dartmouth college was subject to any private visitation whatever.
"Upon looking into the charter of Dartmouth college we find that the king ' being willing to encourage the laudable and charitable design of spreading Christian knowledge among the savages of our American wilderness, and also that the best means of education be established in the prov- ince of New Hampshire, for the benefit of said province,' ordained that there should be a col- lege created in said province by the name of Dart- mouth college, ' for the education and instruction of youth of the Indian tribes, in this land, in read- ing, writing and all parts of learning, which should
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CHAP. appear necessary and expedient for civilizing and XII. christianizing children of Pagans, as well as in all liberal arts and sciences, and also of English youth and any others ;" and that there should be in the said Dartmouth college, from thenceforth and forever, a body politic, consisting of trustees of Dartmouth college. He then 'made, ordained, constituted and appointed' twelve individuals to be trustees of the college, and declared that they and their successors, should forever thereafter be a body corporate, by the name of the trustees of Dartmouth college; and that said corporation should be ' able, and in law capable for the use of said college, to have, get, acquire, purchase, receive, hold, possess and enjoy tenements, here- ditaments, jurisdictions and franchises, for them- selves and their successors, in fee simple or other- wise ;'-and 'to receive and dispose of any lands, goods, chattels and other things, of what nature soever, for the use aforesaid ; and also to have, accept and receive any rents, profits, annuities, gifts, legacies, donations or bequests of any kind whatsoever, for the use aforesaid.' Such are the objects, and such the nature of this corporation, appearing upon the face of the charter. It was created for the purpose of holding and managing property for the use of the college; and the col- lege was founded for the purpose of 'spreading the knowledge of the great Redeemer' among the savages, and of furnishing 'the best means of education' to the province of New Hampshire. These great purposes are surely, if anything can be, matters of public concern. Who has any pri- vate interest either in the objects or the property
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of this institution ? The trustees themselves have CHAP. no greater interest in the spreading of Christian XII. ~ knowledge among the Indians, and in providing the best means of education, than any other indi- viduals in the community. Nor have they any private interest in the property of this institution,- nothing that can be sold or transferred, that can descend to their heirs, or can be assets in the hands of their administrators. If all the property of the institution were destroyed, the loss would be exclusively public, and no private loss to them. So entirely free are they from any private inter- est in this respect, that they are competent wit- nesses in causes where the corporation is a party, and the property of the corporation in contest. There is in Peake's cases at Nisi Prius, 154, an authority direct to this point. It is the case of Weller against the governors of the Foundling Hospital, and was assumpsit for work and labor. Most of the witnesses called on behalf of the de- fendants, were governors and members of the cor- poration. Lord Kenyon was of opinion that they were nevertheless good witnesses, because they were mere trustees of a public charity, and had not the least personal interest. The office of trustee of Dartmouth college is, in fact, a public trust, as much so as the office of governor, or of judge of this court ; and for any breach of trust, the state has an unquestionable right, through its courts of jus- tice to call them to an account. The trustees have the same interest in the corporate property, which the governor has in the property of the state, and which we have in the fines we impose upon the criminals convicted before this court.
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