The History of Dartmouth College

by Baxter Perry Smith

"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 constitutions, 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 assume to perform certain acts which the Constitution had assigned 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, passed in June and December, a. d. 1816, relating to this institution. Those acts are before the public and are generally understood.

"The Board of Trustees, as constituted 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 assigned 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 institution, 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 destitute 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 assert 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 competitors 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 constitutions 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 institution, but of all similar institutions 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 assistance, not to shrink from any duty, or any danger, which it may involve.