USA > New Hampshire > The history of New Hampshire, from its discovery, in 1614, to the passage of the Toleration act, in 1819 > Part 28
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CHAP. XII. Nor is it any private concern of theirs, whether their powers, as corporators, shall be extended or lessened, any more than it is our private concern whether the jurisdiction of this court shall be enlarged or diminished. They have no private right in the institution, except the right of office- the right of being trustees, and of acting as such. It therefore seems to us, that if such a corporation is not to be considered as a public corporation, it would be difficult to find one that could be so considered."
The acts in question could affect only public and private rights. No clause, in the constitu- tion either of the state or United States, pro- tected the public interest in the institution from legislative interference. All private rights con- nected with it, belonged to those who founded or endowed it; to the officers and students; or to the trustees. The trustees were the only parties to the action, and upon their rights alone, the court were called to decide.
Did then these acts unconstitutionally impair any private rights of the trustees ? The addition of new members to a corporation did not destroy it. It still retained the title to the common prop- erty. The old members in this instance had no personal title to be infringed upon. The new members acquired none. If new members could not be added to a corporation, no new duties could be imposed upon it, and the people must be denied the right of legislating for these institu- tions at all without their consent.
The plaintiff contended that the acts of 1816 had impaired their right to manage the affairs of
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this institution, in violation of that clause of the CHAP. bill of rights which declares that "no subject XII. shall be despoiled or deprived of his immunities or privileges, but by the judgment of his peers or the law of the land." That the right to manage the affairs of the college, was a privilege within the meaning of this clause was certain. But how a privilege could be protected from the operation of a " law of the land," by a clause in the constitu- tion declaring that it should not be taken away but by the " law of the land," was not very easily understood.
It had been urged that the charter of 1769 was a contract, the validity of which was impaired by these acts, in violation of a clause in the constitu- tion of the United States, which declares that " no state shall pass any law impairing the obli- gations of contracts." This clause was obviously intended to protect private rights of property only. It could not be construed to embrace contracts in the mere nature of civil institutions nor grants of a state to individuals for public purposes. The charter of Dartmouth college was not such a con- tract as this language of the constitution referred to.
But admitting the charter to have been such a contract-what was that contract ? Could the king have intended, when he chartered this insti- tution, to bind himself to the corporators and their successors forever, that they alone should control it, free from all legislative restraints, however strongly such restraints might be required by the public interest ? Such a contract would have been repugnant to all the principles of just govern- ment. Neither the king nor the legislature pos- sessed the power to make it.
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Having thus glanced at the points of the case, in an argument of which the above is but an imper- fect outline, in concluding, Judge Richardson used the following language :-
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" I have looked into this case with all the atten- tion of which I am capable, and with a most pain- ful anxiety to discover the true principles. upon which it ought to be decided. No man prizes more highly than I do, the literary institutions of our country, or would go farther to maintain their just rights and privileges. But I cannot bring myself to believe, that it would be consistent with sound policy, or ultimately with the true interests of literature itself, to place the great public insti- tutions, in which all the young men, destined for the liberal professions, are to be educated, within the absolute control of a few individuals, and out of the control of the sovereign power-not con- sistent with sound policy, because it is a matter of too great moment, too intimately connected with the public welfare and prosperity, to be thus intrusted in the hands of a few. The education of the rising generation is a matter of the highest public concern, and is worthy of the best atten- tion of every legislature. The immediate care of these institutions must be committed to individu- als, and the trust will be faithfully executed so long as it is recollected to be a mere public trust, and that there is a superintending power, that can and will correct every abuse of it. But make the trustees independent, and they will ultimately for- get that their office is a public trust-will at length consider these institutions as their own- will overlook the great purposes for which their
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powers were originally given, and will exercise CHAP. them only to gratify their own private views and XII. - wishes, or to promote the narrow purposes of a sect or party. It is idle to suppose that courts of law can correct every abuse of such a trust. Courts of law cannot legislate. There may be many abuses, which can be corrected by the sov- ereign power alone. Nor would such exemption from legislative control be consistent with the true interests of literature itself, because these institu- tions must stand in constant need of the aid and patronage of the legislature and the public; and without such aid and patronage, they can never flourish. Their prosperity depends entirely upon the public estimation in which they are held. It is of the highest importance that they should be fond- ly cherished by the best affections of the people ; that every citizen should feel that he has an inter- est in them, and that they constitute a part of that inestimable inheritance which he is to transmit to his posterity in the institutions of his country. But these institutions, if placed in a situation to dispute the public will, would eventually fall into the hands of men, who would be disposed to dis- pute it ; and contests would inevitably arise, in which the great interests of literature would be forgotten. Those who resisted that will would become at once the object of popular jealousy and distrust; their motives, however pure, would be called in question, and their resistance would be believed to have originated in private and in- terested views, and not in regard to the public welfare. It would avail these institutions nothing that the public will was wrong, and that their right
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CHAP. could be maintained in opposition to it, in a court XII. of law. A triumph there might be infinitely more ruinous than defeat. Whoever knows the nature of a popular government, knows that such a con- test could not be thus settled by one engagement. Such a triumph would only protract the destruc- tive contest. The last misfortune which can befal one of these institutions, is to become the subject of popular contention.
"I am aware that this power, in the hands of the legislature, may, like every other, at times be unwisely exercised ; but where can it be more securely lodged ? If those, whom the people an- nually elect to manage their public affairs, cannot be trusted, who can? The people have most emphatically enjoined it in the constitution, as a duty upon 'the legislators and magistrates, in all future periods of the government, to cherish the interests of literature and the sciences, and all seminaries and public schools.' And those inter- ests will be cherished, both by the legislature and the people, so long as there is virtue enough left to maintain the rest of our institutions. Whenever the people and their rulers shall become corrupt enough to wage war with the sciences and liberal arts, we may be assured that the time will have arrived, when all our institutions, our laws, our liberties must pass away-when all that can be dear to freemen, or that can make their country dear to them, must be lost, and when a govern- ment and institutions must be established, of a very different character from those under which it is our pride and happiness to live.
" In forming my opinion in this case, however, I
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have given no weight to any considerations of expe- CHAP. diency. I think the legislature had a clear con- XII. stitutional right to pass the laws in question. My opinion may be incorrect, and our judgment erro- neous, but it is the best opinion, which, upon the most mature consideration, I have been able to form. It is certainly, to me, a subject of much consolation, to know that if we have erred, our mistakes can be corrected, and be prevented from working any ultimate injustice. If the plaintiffs think themselves aggrieved by our decision, they can carry the cause to another tribunal, where it can be re-examined, and our judgment be reversed, or affirmed, as the law of the case may seem to that tribunal to require."
Judgment was rendered for the defendant. The case was then carried up to the supreme court of the United States, where, in 1819, judgment was pronounced in favor of the trustees, reversing the decisions of the courts below. This judgment was based upon the opinion that the college charter was a contract within the meaning of the con- stitution ; an opinion, which, had it remained un- questioned, would have given to our chartered corporations a supremacy over the laws of the land, which nothing short of revolution could ex- tinguish. Such, however, was not the result. Our federal courts have gradually adopted dif- ferent rules of construction, under which char- tered rights have sometimes yielded to the public welfare.
The decision of Chief Justice Richardson was sustained generally by public opinion in New Hampshire and throughout the United States.
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The farmers, merchants, and mechanics, adopt- ing common sense views without much reflection or research, could not perceive that when their fathers threw off the British yoke and established a republican government, there yet remained within their territory a vestige of that other government which they had rejected-the offspring of royalty- with power to perpetuate itself forever-yet pro- tected from all responsibility and control; that while every town and every citizen in his individ- ual capacity, and every other corporation, was obliged to submit to the state laws, yet that a col- lege might set those laws at defiance and stand aloof from accountability; and that the revolu- tion, which changed the relations and rights of the citizen, yet wrought no change in the rights of a college chartered before the revolution; that while the revolution swept every vestige of royalty away, yet that a college remained as a fortress of royal rights-and, while deriving its authority from the crown, might be seeking to destroy liberty, or might, in any other respect, pursue a course of ever so great wickedness and unlawfulness, without being subjected to either punishment or restraint. They thought there was a manifest difference between a corporation granted for the private advantage of its members and one in- stituted and continued in existence solely for the public good; that though, in the former case, the corporators may have vested rights, because they have an interest in the income of the corporation, yet, in the latter, as there is no such interest, so no such rights exist; that, in the one case, the mem- bers may justly seek their own emolument-in the
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other, the public welfare should be their sole CHAP. object; that the trustees of Dartmouth college, XII. therefore, could justly have no private interest in their offices, but were the mere servants of the public, to carry into effect the objects of the legis- lature and the people, in patronising that institu- tion; that public sentiment is greatly influenced, if not entirely regulated, by the liberally educat- ed; that the liberally educated imbibe their sen- timents from their instructors and the books stud- ied in the course of their education; that it is, therefore, a matter of the highest public concern that these instructors and books should teach sen- timents congenial with republican institutions ; and that the certain attainment of this object re- quires that colleges and public seminaries should - be directly or indirectly within the control of the legislature.
Whoever should consult the newspapers of the college, the Dartmouth Gazette and the Ports- mouth Oracle, and adopt their opinions, would deem the legislators and the people the most abso- lute agrarians and assassins. Whoever should consult the New Hampshire Patriot and other papers of the people, would infer that the charter professors and their abettors were little better than " Spanish inquisitors." Both sides were partially wrong. The people were not assassins, nor were the charter professors with strict justice compared to Spanish inquisitors ; but a question had arisen, of great public concern on the one side, and of private interest and ambition on the other. It was but natural that the people should be irritated by what they deemed a factious opposition to con-
4,20
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CHAP. stitutional laws, and that the college should cling XII. tenaciously to its long enjoyed interests and pow- ers. It was but natural that bitter animosity should be engendered by dispute, and that passion 1816. and prejudice should rule the hour.
The decision of the superior court of New Hampshire was finally overruled and reversed by the supreme court of the United States; and thus the laws of the state were crushed under the wheels of the general government. When it was known at Hanover that the decision of the state court had been reversed at Washington, the stu- dents of the old college riotously entered the uni- versity and seized the books by force. The pro- fessors of the university were assailed with clubs and threatened with death; and when they at- tempted to defend themselves, they were com- plained of as criminals. The students of the old college found a magistrate of the village subser- vient to their purpose; and the university profes- sors, for attempting a feeble defence against over- whelming numbers, were arrested and carried before him for trial and punishment. They were then burnt in effigy.
While such were the proceedings of the stu- dents, the people received the decision of the United States court, although they believed it to be wrong, with the utmost dignity and moderation of conduct. Indeed, it afforded a new and con- vincing proof of their patriotism and love of or- 1816. der that they submitted to a decision which they deemed to be manifestly at variance with the con- stitution and the laws, and an arbitrary encroach- ment of the general government upon the rights
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of the state. The doctrines of the court in this CHAP. case have met with a growing disapprobation in all XII. parts of the country, and are now regarded as of very doubtful authority. But it is not to be de- nied that the people acted wisely in yielding to the established tribunals of the country, and awaiting the slow operation of time to correct the errors of human judgment. It is believed by many that the day is not far distant when the Dartmouth col- lege case will be subjected to an entire revision, and the institution be placed under the control of the legislature.
During the summer of 1817, James Monroe, having been elected to the presidency by a large majority, made a tour to the northern states. He visited Portsmouth, Dover, Concord, and Han- over in this state, and here, as everywhere else, was received with distinguished tokens of respect. Both parties united, with equal zeal, in the gen- erous preparations which were everywhere made for his reception. And, indeed, a suspension of that political warfare which had so long agitated the country, commencing amid the festivities which everywhere attended the progress of the chief mag- istrate of the Union, and favored by the pacific policy of his administration, continued with little interruption to its close.
The state-house at Concord was this year erected-a neat, spacious and beautiful building of hammered granite, from the extensive quarries of the same town. Its expense was more than eighty thousand dollars, a considerable portion of which was sustained by the citizens of Con- cord. During the same year the Athenaeum was 1817.
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CHAP. established at Portsmouth; an institution which XII.
now possesses a valuable cabinet of minerals, an extensive collection of antiquities, and one of the largest and most valuable libraries in the state.
1819.
Governor Plummer having declined a re-elec- tion, the Hon. Samuel Bell was, in March, 1819, elected his successor in the chief magistracy. The Hon. William Hale, of Dover, received the votes of the federal party, which, on this occasion, made only a very feeble opposition. The seat on the bench of the superior court, which Mr. Bell had resigned to enter upon his duties of governor, was filled by the appointment of Samuel Green, Esq., of Concord.
The passage of the toleration law, in 1819, was by far the most important measure of this admin- istration. It for the first time placed all religious sects in the state upon equal ground, and made them dependent upon the free contributions of the people for their support.
From the first establishment of a few infant set- tlements in this state, the people had been dis- posed to resist the imposition of all restraints upon their religious opinions, and all unnecessary bur- thens upon their property. The first settlers were men who sought to better their condition by the use of such humble resources as our woods and waters afforded. These were soon followed by religious non-conformists, flying from the persecu- tions of the puritans. The former class thought more of their fisheries, their searchings after mines, and their trade, and the latter of secluded homes and religious liberty, than of the doubtful advan-
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tages to be derived from the exclusive establish- CHAP. ment of a particular sect. Here Quakers and XII. non-conformists were safe. Religious distinctions were unknown in public affairs. And as a natural consequence, when our little settlements were an- nexed to Massachusetts, the religious tests which the rigid rulers of that colony had established, were entirely dispensed with, so far as related to citizens of New Hampshire. They were author- ized to vote, and their deputies were allowed to sit in the general court, even when they did not claim to be members of that church, to which, in Massachusetts, all such privileges were confined.
Descending from such a stock, and representing ancestors of every possible creed, there was never any general feeling among the people averse to the religious rights of any portion of the community. From a regard, however, for religion in the aggre- gate, rather than the interests of any particular sect, the early legislators of this state had enact- ed a law, empowering the several towns to raise money, by taxation, to build churches and support a Christian ministry.
The progress of new sects, gradually springing up in the state, soon produced a great diversity of religious sentiment among its people. Over these new and feeble divisions of the religious commu- nity, a single denomination held the supremacy in nearly every town. The dissenters from this pre- vailing sect, divided among themselves, were sel- dom strong enough to support a ministry of their own. In this event, they were liable to be pur- sued with all the rigors of the law, if they failed to pay the established clergy a full share of the
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CHAP. expenses incurred in their support. Thus many
XII. of the people were compelled to pay for the erec- tion of churches they never entered, for teachings they never heard, and clerical labors which they conscientiously regarded as tending only to perpet- uate the dominion of religious errors over the pub- lic mind. A law, undoubtedly established in the first instance from pure motives and for the public benefit, had thus become converted into an engine of oppression.
Its repeal, however, met with a very decided opposition. It was declared that it would at once be destructive of religion and the public morals. Such objections have ever been raised against measures designed to extend the liberties of man- kind. But when the toleration bill had once gone into operation, equalising the privileges of the dif- ferent sects, and promoting harmony of feeling among their members, it gained additional respect for the sentiments of all religious denominations, and operated injuriously upon the interests of none. Churches have grown up under its provisions in every neighborhood, and a numerous ministry, de- pendent upon the voluntary contributions of the people, have been sustained with the most honor- able liberality. The people have given twice as much, of their own free will, as could be wrung from them under the old law, and it seems long since to have been conceded that the true inter- ests of every sect have been promoted by its repeal.
Before the passage of the toleration act, the people had borne, with astonishing patience, the support of the congregational order by law. Year
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after year had the honest Quaker, the Baptist, the Universalist, been taxed for the support of a religion in which he did not believe ; and when he refused payment, was sent to a dungeon, or ru- ined by a never-ending lawsuit. The courts were tinctured with orthodoxy, and corruption ap- peared upon the bench. The jury were secretly " culled "-dissenters were taken off, and their places supplied with those whose well known or- thodoxy afforded a guaranty that the law, right or wrong, would be enforced.
While such was the state of things at home, the people of New Hampshire had seen a revolution progressing in Connecticut, similar to that which was now beginning among themselves. Ever since the first settlement of Connecticut, the people had groaned under an oppressive system of religious intolerance. It was a complete and most odious union of church and state. None but the standing order of clergy could there obtain a legal support ; and the laws for the support of that order were such a direct violation of the right of every man to worship God according to the dictates of his own conscience, that by many they were deemed " dis- graceful to humanity." Often was the parish col- lector seen robbing the humble dwelling of honest poverty of its table, chairs and andirons, or selling at vendue the cow of the poor laborer, on which the subsistence of his family depended, in order to load with luxuries the table of an indolent priest, or clothe in purple those who partook with him of the spoils of the poor. All ministers not of the standing order were viewed as thieves and rob- bers-as wolves in sheep's clothing-who had 54
CHAP. XII.
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CHAP. XII. gained a dishonest entrance into the fold, and whom it was the duty of the standing order to drive out. In 1818, a bill was reported to the convention of that state, confirming freedom of conscience to all. Every man possessed of real independence and enlightened views, rejoiced at a revolution which sundered so monstrous a union of the church and the state in Connecticut. The cler- gy of the standing order deprecated-mourned- threatened, and exclaimed, "Alas! for that great city!" But the vast concourse of the people joined in thanksgiving for its destruction. Such was the change which the people of New Hamp- shire had witnessed in a neighboring state. They themselves were bound by a system less odious in the degree of practical evil which it inflicted, but in principle essentially the same. The act of the 13th of Anne, empowered towns to hire and settle ministers, and to pay them a stipulated salary from the town taxes. This was not directly a union of church and state; but it operated most oppressively. Each town could select a minister of a particular persuasion, and every citizen was compelled to contribute toward the support of the clergyman and to build the church, unless he could prove that he belonged to a different persua- sion and regularly attended public worship else- where on the Lord's day.
Bill of Rights, Art. 6.
The bill of rights declares, " that no person of any one particular religious sect, or denomination, shall ever be compelled to pay towards the sup- port of the teacher or teachers of another persua- sion, sect, or denomination, and that no subordi- nation of any one sect or denomination, to another,
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shall ever be established by law." Notwithstand- CHAF. ing these clear provisions, the statute of Anne XII. - continued substantially to prevail. The act of 1791 changed the form but not the nature of the oppression. It vested in the selectmen of the towns the powers (essentially) which had before been vested in the body of the citizens. The selectmen could still settle a minister and tax the people for his support. They could build a church, and search the pockets of dissenters for the funds. They could prefer whatever persuasion they pleased, and thus compel the people to bow to whatever image man might set up. How could a dissenter avoid paying the tax ? Only by prov- ing that he belonged to another sect. The proof was often difficult to obtain, sometimes impossible. When a suit was instituted against him for the tax, and he was brought into court, he was met by able counsel, employed by the selectmen, well versed in law, and ready to quibble at the slight- est lack of proof, and vex him by nice legal distinc- tions. Mr. Smith and Mr. Mason, in one case, contended that the defendant, whose defence was that he was a Baptist, could not avoid the pay- ment, because he had not proved that he had been dipped. Neither is he a Congregationalist, re- plied Mr. Sullivan and Mr. Bartlett, because he has not proved that he has been sprinkled.
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