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MR. WEBSTER'8 argument in the Dartmouth College Case has stood, from the day of its delivery, as his universally acknowledged master-piece in this department of his public labors. The circumstances attending the delivery of the speech, with the origin and nature of the suit, have been given in the previous volume of this work. As the master-pieces are arranged in chronological order, that the growth of Mr. Webster's mind may be noted, the reader will observe that this speech was delivered in 1818, when the author of it was about thirty-sim years of age. It is perhaps scarcely necossary to add, that Mr. Webster gained his case.
DARTMOUTH COLLEGE VS. WOODWARD.
ARGUMENT IN THE CASE OF THE TRUSTEES OF DARTMOUTH COLLEGE VS.
WOODWARD, BEFORE THE SUPREME COURT OF THE UNITED STATES, ON THE 10TH DAY OF MARCH, 1818.
The general question is, whether the acts of the 27th of June, and of the 18th and 26th of December, 1816, are valid and binding on the rights of the plaintiffs, without their acceptance or assent.
The charter of 1769 created and established a corporation, to consist of twelve persons, and no more; to be called the “ Trustees of Dartmouth College.” The preamble to the charter recites, that it is granted on the application and request of the Rev. Eleazer Wheelock : That Doctor Wheelock, about the year 1754, established a charity school, at his own expense, and on his own estate and plantation : That for several years, through the assistance of well-disposed persons in America, granted at his solicitation, he had clothed, maintained, and educated a number of native Indians, and employed them afterwards as missionaries and schoolmasters among the savage tribes: That, his design promising to be useful, he had constituted the Rev. Mr. Whitaker to be his attorney, with power to solicit contributions, in England, for the further extension and carrying on of his undertaking; and that he had requested the Earl of Dartmouth, Baron Smith, Mr. Thornton, and other gentlemen, to receive such sums as might be contributed, in England, towards supporting his school, and to be trustees thereof, for his charity; which these persons had agreed to do: And thereupon Doctor Wheelock had executed to them a deed
of trust, in pursuance to such agreement between him and them, and, for divers good reasons, had referred it to these persons to determine the place in which the school should be finally established: And, to enable them to form a proper
decision on this subject, had laid before them the several offers which had been made to him by the several governments in America, in order to induce him to settle and establish his school within the limits of such governments for their own emolument, and the increase of learning in their respective places, as well as for the furtherance of his general original design: And inasmuch as a number of the proprietors of lands in New Hampshire, animated by the example of the governor himself and others, and in consideration that, without any impediment to its original design, the school might be enlarged and improved, to pro mote learning among the English, and to supply ministers to the people of that province, had promised large tracts of land, provided the school should be established in that province, the persons before mentioned, having weighed the reasons in favor of the several places proposed, had given the preference to this province, and these offers: That Doctor Wheelock therefore represented the necessity of a legal incorporation, and proposed that certain gentlemen in America, whom he had already named and appointed in his will to be trustees of his charity after his decease, should compose the corporation. Upon this recital, and in consideration of the laudable original design of Doctor Wheelock, and willing that the best means of education be established in New Hampshire, for the benefit of the province, the king granted the charter, by the advice of his provincial council.
The substance of the facts thus recited is, that Doctor Wheelock had founded a charity, on funds owned and procured by himself; that he was at that time the sole dispenser and sole administrator, as well as the legal owner, of these funds; that he had made his will, devising this property in trust, to continue the existence and uses of the school, and appointed trustees ; that, in this state of things, he had been invited to fix his school, permanently in New Hampshire, and to extend the design of it to the education of the youth of that province; that before he removed his school, or accepted this invitation, which his friends in England had advised him to accept, he applied for a charter, to be granted, not to whomsoever the king or government of the province should please, but to such persons as he named and appointed, namely, the persons whom he had already appointed to be the future trustees of his charity by his will.
The charter, or letters patent, then proceed to create such a corporation, and to appoint twelve persons to constitute it, by the name of the “Trustees of Dartmouth College;” to have perpetual existence, as such corporation, and with power to hold and dispose of lands and goods, for the use of the college, with all the ordinary powers of corporations. They are in their discretion to apply the funds and property of the college to the support of the president, tutors, ministers, and other officers of the college, and such missionaries and schoolmasters as they may see fit to employ among the Indians. There are to be twelve trustees forever, and no more; and they are to have the right of filling vacancies occurring in their own body. The Rev. Mr. Wheelock is declared to be the founder of the college, and is, by the charter, appointed first president, with power to appoint a successor by his last will. All proper powers of government, superintendence, and visitation are vested in the trustees. They are to appoint and remove all officers at their discretion; to fix their salaries, and assign their duties; and to make all ordinances, orders, and laws for the government of the students. And to the end that the persons who had acted as depositaries of the contributions in England, and who had also been contributors themselves, might be satisfied of the good use of their contributions, the president was annually, or
when required, to transmit to them an account of the progress of the institution and the disbursements of its funds, so long as they should continue to act in that trust. These letters patent are to be good and effectual, in law, against the king, his heirs and successors forever, without further grant or confirmation; and the trustees are to hold all and singular these privileges, advantages, liberties, and immunities to them and to their successors forever.
No funds are given to the college by this charter. A corporate existence and capacity are given to the trustees, with the privileges and immunities which have been mentioned, to enable the founder and his associates the better to manage the funds which they themselves had contributed, and such others as they might afterwards obtain.
After the institution thus created and constituted had existed, uninterruptedly and usefully, nearly fifty years, the legislature of New Hampshire passed the acts in question.
The first act makes the twelve trustees under the charter, and nine other individuals, to be appointed by the governor and council, a corporation, by a new name; and to this new corporation transfers all the property, rights, powers, liberties, and privileges of the old corporation; with further power to establish new colleges and an institute, and to apply all or any part of the funds to these purposes ; subject to the power and control of a board of twenty-five overseers, to be appointed by the governor and council.
The second act makes further provisions for executing the objects of the first, and the last act authorizes the defendant, the treasurer of the plaintiffs, to retain and hold their property, against their will.
If these acts are valid, the old corporation is abolished, and a new one created.
The first act does, in fact, if it can have any effect, create a new corporation, and transfer to it all the property and franchises of the old. The two corporations