"The undersigned also beg leave to remonstrate against the pa.s.sage of the bill, on the ground of inexpediency. A corporation is a creature of the law, to which certain powers, rights, and privileges are granted; and amongst others that of holding property. Destroy this creature, this body politic, and all its property immediately reverts to its former owners. This doctrine has long been recognized and established in all governments of law. Any material alteration of the corporation, without its consent, and certainly such essential alterations as the bill under consideration is intended to make, will be followed with the same effect. The funds belonging to the college, although not great, are highly important to the inst.i.tution; and a considerable proportion of them were granted by, and lie in, the State of Vermont. The undersigned most earnestly entreat the Honorable Legislature not to put the funds of the college in jeopardy; not to put at hazard substantial income, under expectations which may or may not be realized."

After alluding to lack of precedent for the proposed action, and the necessary increase of expenditures which would result from its consummation, they proceed to say: "If the provisions of this bill should take effect, we greatly fear that the concerns of the college will be drawn into the vortex of political controversy. We refer particularly to that section of the bill which gives the appointment of Trustees and Overseers to the Governor and Council. The whole history of the United States for the last twenty years teaches us a lesson which ought not to be kept out of view. Our literary inst.i.tutions. .h.i.therto have been preserved from the influence of party.

The tendency of this bill, unless we greatly mistake, is to convert the peaceful retreat of our college into a field for party warfare.

"Whilst the undersigned deem it their indispensable duty to remonstrate in the most respectful terms against the pa.s.sage of the bill referred to, they have no objection, and they have no reason to believe their fellow Trustees have any objection, to the pa.s.sage of a law connecting the government of the State with that of the college, and creating every salutary check and restraint upon the official conduct of the Trustees and their successors that can be reasonably required, and with respectful deference they would propose the following outlines of a plan for that purpose.

"The Councillors and Senators of New Hampshire together with the Speaker of the House of Representatives for the time being, shall const.i.tute a Board of Overseers of Dartmouth College, any ten of whom shall be a quorum for transacting business. The Overseers shall meet annually at the college, on the day preceding Commencement. They shall have an independent right to organize their own body, and to form their own rules; but as soon as they shall have organized themselves they shall give information thereof to the Trustees. Whenever any vote shall have been pa.s.sed by the Trustees it shall be communicated to the Overseers, and shall not have effect until it shall have the concurrence of the Overseers. Provided, nevertheless, that if at any meeting a quorum of the Overseers shall not be formed, the Trustees shall have full power to confer degrees, in the same manner as though there were no Overseers; and also to appoint Trustees or other officers (not a president or professor), and to enact such laws as the interests of the inst.i.tution shall indispensably require; but no law pa.s.sed by the Trustees shall in such case have force longer than until the next annual meeting of the Boards, unless it shall then be approved by the Overseers. Neither of the Boards shall adjourn, except from day to day, without the consent of the other. It shall be the duty of the president of the college, whenever in his opinion the interests of the inst.i.tution shall require it, or whenever requested thereto by three Trustees, or three Overseers, to call special meetings of both Boards, causing notice to be given in writing to each Trustee and Overseer, of the time and place; but no meeting of one Board shall ever be called except at the same time and place with the other. It shall be the duty of the president of the college annually, in the month of May, to transmit to his Excellency, the Governor, a full and particular account of the state of the funds, the number of students and their progress, and generally the state and condition of the college.

"If the plan above suggested should meet the approbation of the Honorable Legislature, and good men of all parties give it their sanction, we may all antic.i.p.ate, with high satisfaction, the future prosperity of the college, and its incalculable usefulness to the State; but if a union of the friends of literature and science, of all parties and sects, cannot be attained; if the triumph of one party over the other be absolutely indispensable; fearful apprehensions must fill the mind of every considerate man, every dispa.s.sionate friend of Dartmouth College.

Thos. W. Thompson, Elijah Paine, Asa M'Farland.

"June 19, 1816."

The effect of this proposed compromise was a modification of the bill in some of its important features. Against the amended bill, which was pa.s.sed a few days afterward, there was a farther protest, from which we make brief extracts.

"The undersigned would not trouble the Honorable Legislature with any remarks in addition to those contained in their remonstrance of the 19th inst. did they not believe it was a duty not to be omitted."

Referring to the amended bill, they continue:

"They have not been able to obtain a sight of it, but have heard it contains provisions for an increase of the Board of Trustees to the number of twenty-one, a majority of whom to const.i.tute a quorum, and that the additional number are to be appointed by His Excellency the Governor and the Honorable the Council. To many of the topics of argument, suggested in their former remonstrance (which are equally applicable against the pa.s.sage of the bill in its present shape) they respectfully ask leave to add, that the bill in its present shape destroys the ident.i.ty of the corporation, known in the law by the name of the Trustees of Dartmouth College, without the consent of the corporation, and consequently the corporation to be created by the present bill must and will be deemed by courts of law altogether diverse and distinct from the corporation to which all the grants of property have hitherto been made; and therefore the new corporation cannot hold the property granted to the corporation created by the charter of 1769.

"By the Charter of Dartmouth College a contract was made by the then supreme power of the State with the twelve persons therein named, by which, when accepted by the persons therein named, certain rights and privileges were vested in them and their successors, for the guarantee of which the faith of government was pledged by necessary implication.

In the same instrument the faith of government was pledged that the corporation should consist of twelve persons and no more. The change in the government of the State, since taken place, does not in the least possible degree impair the validity of this contract,--otherwise nearly all the t.i.tles to real estate, held by our fellow citizens, must be deemed invalid.

"The pa.s.sage of the bill now before the Honorable House will, in the deliberate opinion of the undersigned, violate the plighted faith of the government. If the undersigned are correct in considering the Charter of 1769 in the nature of a contract, and if the bill, in its present shape, becomes a law, we think it necessarily follows that it will also violate an important clause in the 10th section of the 1st article in the Const.i.tution of the United States, which provides, that no State shall pa.s.s any law impairing the obligation of contracts.

"The Honorable Legislature will permit us to add, that as it is well known that the Trustees have, as a Board, been divided on certain important subjects, although the minority has been very small, should the Legislature now provide for nine new Trustees, to be appointed by His Excellency the Governor and the Honorable the Council, and that without any facts being proved to the Legislature, or any Legislative report having been made, showing that the state of things at the college rendered the measure necessary, it must be seen by our fellow citizens that the majority of the Trustees have been by the Legislature, for some unacknowledged cause, condemned unheard.

Thomas W. Thompson, Asa M'Farland.

"June 24, 1816."

The recommendations of the Governor in substance, became a law; the name of the college was changed to "University;" the number of the Trustees was increased to twenty-one; a Board of Overseers was created, to be appointed by the Governor and Council; the president and professors of the university were required to take an oath to support the Const.i.tution of the United States, and of the State of New Hampshire; and the act provided that "perfect freedom of religious opinion should be enjoyed by all the students and officers of the university." The committee to whom the message, etc., relating to this subject, were referred, it should be remarked, did not undertake to decide in favor of either party to the controversy, but alleged that the troubles arose from certain defects in the Charter, and that they would recur again in some form, unless those defects were remedied.

The debates upon the historical and const.i.tutional questions involved were able. The minority were ably led, both inside and outside the Legislature, but parliamentary tactics availed them nothing. Many of them joined in a written protest against the pa.s.sage of the bill, the substance of which has already appeared in the action of the Trustees.

Directly after the pa.s.sage of this bill Mr. Marsh prepared an elaborate argument, never published, setting forth the essence of the leading points of the case, as viewed by the majority of the old Trustees.

The following letter, addressed to Mr. Timothy Bigelow, Boston, is worthy of notice in this connection:

"Concord, July 27, 1816.

"Dear Sir: Dr. McFarland will do himself the pleasure to hand you this. In him you will recognize an old acquaintance. We wish to get the opinions of as many legal friends as we can upon the question of legitimate power in the New Hampshire Legislature, to pa.s.s the act relating to Dartmouth College, and with regard to the course the old Trustees ought to pursue. It is an interest, we think, common to all well wishers to New England.

"The old Trustees, I am confident, are willing to take just that course that their wisest and best friends recommend.

"Very cordially yours,

Thomas W. Thompson."

August 28, 1816, a majority of the old Trustees formally refused to accept the provisions of the act.

A meeting of the Trustees of the university, under the act of June 27, 1816, was called, but through the illness of a single member, failed for want of a quorum. The judges of the Superior Court, on December 5, 1816, in answer to the Governor and Council, gave their opinion that the executive department had no authority to fill the vacancies which had occurred. To remedy this, the Legislature, on December 18, 1816, pa.s.sed an additional act providing for filling the vacancies, the calling of meetings and fixing a quorum; and on December 26, 1816, pa.s.sed another act imposing the penalty of five hundred dollars upon any person who should a.s.sume any office in the university except by virtue of the preceding acts.

In view of this action President Brown writes to Mr. Timothy Farrar, of Portsmouth, January 3, 1817:

"Now, what shall we do? One of these four courses must be taken. We must either keep possession and go on to teach as usual, without any regard to the law, or, withdrawing from the college edifice and all the college property, continue to instruct as the officers of Dartmouth College; or, relinquishing this name for the present, collect as many students as will join us, and instruct them as private but a.s.sociated individuals; or else we must give all up and disperse.

Will you give us your opinion, what may be duty or what expedient, as soon as convenient? Particularly, will you give us your opinion whether, supposing this oppressive act to be judged const.i.tutional, we should be liable to the fine, if we instruct as the officers of Dartmouth College, relinquishing, however, the college buildings, the library, apparatus, etc."

The Faculty of the college issued the following:

"ADDRESS OF THE EXECUTIVE OFFICERS OF DARTMOUTH COLLEGE TO THE PUBLIC.

"As the undersigned, after the most serious and mature consideration, have determined to retain the offices which they received by the appointment of the Trustees of Dartmouth College, and not voluntarily to surrender, at present, any property committed to them, nor to relinquish any privileges pertaining to their offices, they believe it to be a duty, which they owe to the public no less than to themselves, to make an explicit declaration of the principles by which they are governed.

"They begin by stating the two following positions, as maxims of political morality, which they deem incontrovertible:

"1. It is wrong, under any form of government, for a citizen or subject to refuse compliance with the will of the sovereign power, when that will is fully expressed, except in cases where the rights of conscience are invaded, or where oppression is practiced to such an extreme degree that the great ends of civil government are defeated or highly endangered.

"2. Under a free government, where the sovereignty is exercised by several distinct branches, whose respective powers are created and defined by written const.i.tutions, cases may arise in which it will be the duty of the citizen to delay conforming to the ordinances of one branch until the other branches shall have had opportunity to act. If, for example, the legislative branch should transcend its legitimate power, and a.s.sume to perform certain acts which the Const.i.tution had a.s.signed to the province of the judicial branch, a citizen, injuriously affected by those acts, might be bound, not indeed forcibly to resist them, but, in the manner pointed out by law, to make an appeal to the judiciary and to await its decision.

"The undersigned deem it unnecessary, in this place, to detail the provisions of the acts of the Honorable Legislature, pa.s.sed in June and December, A. D. 1816, relating to this inst.i.tution. Those acts are before the public and are generally understood.

"The Board of Trustees, as const.i.tuted by the Charter of 1769, at their annual meeting in August last, took into consideration the act of June, and adopted a resolution, 'not to accept its provisions.' In the preamble to this resolution, we find a paragraph in the words following: 'They (the Trustees) find the law fully settled and recognized in almost every case which has arisen, wherein a corporation or any member or officer is a party, that no man or body of men is bound to accept, or act under, any grant or gift of corporate powers and privileges; and that no existing corporation is bound to accept, but may decline or refuse to accept any act or grant conferring additional powers or privileges, or making any restriction or limitation of those they already possess; and in case a grant is made to individuals or to a corporation without application, it is to be regarded not as an act obligatory or binding upon them, but as an offer or proposition to confer such powers and privileges, or the expression of a desire to have them accept such restrictions, which they are at liberty to accept or reject.'

"If the doctrine contained in this paragraph be correct, and of its correctness the undersigned, after ascertaining the opinion of eminent jurists in most of the New England States, entertain no doubt, the act of June, and of course the acts of December, have become inoperative, in consequence of the nonacceptance of them by the Charter Trustees, and the provisions of these acts are not binding upon the corporation or its officers. We take the liberty to add, that, in our opinion, the reasons a.s.signed by the Trustees in the preamble before mentioned for not accepting the act of June, are very important and amply sufficient. Indeed, it has ever appeared to us, that the changes proposed to be introduced into the charter by the acts in question, would have proved highly inauspicious to the welfare of this inst.i.tution, and ultimately injurious to the interests of literature throughout our country.

"The Trustees appointed agreeably to the provisions of the act of June have, however, thought proper to organize, without the concurrence of the Charter Trustees, and to perform numerous decisive acts.

"At a meeting in Concord on the fourth instant, they brought several specifications of charges against the undersigned; and at an adjourned meeting, holden on the twenty-second instant, they proceeded to displace, discharge, and remove them from their respective offices in Dartmouth University. A similar procedure was adopted against four of the Trustees acting under the Charter.

"Unless we greatly mistake, in the view already expressed of the act of June, the votes of the university Trustees, removing us from office, are wholly unauthorized and dest.i.tute of any legal effect; and we are still, as we have uniformly claimed to be, officers of Dartmouth College under the charter of 1769.

"The Charter Trustees having resolved to a.s.sert their corporate rights, and having, for this purpose, recently commenced a suit against their late Secretary and Treasurer, in the issue of which it is expected the question between them and their compet.i.tors will be finally settled, the undersigned, being united with them in opinion, in principle, and in feeling, cannot consent to abandon them, or to perform any act which may prejudice their claims, while this suit is pending. They must therefore proceed, as officers of Dartmouth College, to discharge their prescribed duties. They are sensible of their obligation to render submission to the laws, and their first inquiry, in the case before them, has been, What is law? The result is a full conviction in their own minds, that the course they have concluded to adopt is strictly legal, and that no other course would be consistent with their duty. If they err, their error will shortly be corrected by the decision of our highest judicial tribunals; and with this decision they will readily comply. In the meantime, while the appeal is made to the laws of their country, and to the const.i.tutions of this State and of the United States, which are the supreme law, they trust that none of their fellow-citizens will have the unkindness to charge them with a want of respect to the government under which they live. As soon as the will of the government shall be fairly expressed, they will render to it a prompt obedience.

"The undersigned are placed in a situation singularly difficult and highly responsible. To them it seems to be allotted in Divine Providence, to perform a part which, in its consequences, may deeply affect the interests not only of this inst.i.tution, but of all similar inst.i.tutions in this country. And although they are fully conscious of their own inability to perform this part in a manner worthy of its importance, yet they are firmly resolved, relying on divine a.s.sistance, not to shrink from any duty, or any danger, which it may involve.

"The penal act of December they cannot but regard as unnecessarily severe; nor do they see what purpose it was calculated to answer, except to influence them, by the prospect of embarra.s.sing suits, to an abandonment of their trust. They are aware that men may be found disposed to multiply prosecutions against them, and to despoil them of the little property they possess; but they believe themselves called in Providence not to shun this hazard, as they cannot reconcile it with their obligation to the inst.i.tution under their care, to relinquish the places they occupy, until it shall be ascertained that they cannot rightfully retain them.

"As the university Trustees have expressed a great regard for the laws, the undersigned have a right to expect that neither they, or any agents appointed by them, will resort to illegal measures to seize on the college buildings and property. Should such measures unhappily be adopted, the undersigned will make no forcible resistance, it not being a part of their policy to repel violence by violence. They will quietly withdraw where they cannot peaceably retain possession, and, with the best accommodations they can procure, will continue to instruct the cla.s.ses committed to them, until the prevalence of other counsels shall procure a repeal of the injurious acts, or until the decision of the law shall convince them of their error, or restore them to their rights.

"Francis Brown, "Ebenezer Adams, "Roswell Shurtleff.

"February 28, 1817."