"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 embarrassing 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 institution 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 classes 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."
The above gentlemen constituted the permanent Faculty at this period. In view of all the circumstances they determined to surrender the college buildings and library to their opponents, and the Trustees determined to test their rights before the courts, the action being brought against the former Treasurer, who adhered to the "University" party.
"The action: 'The Trustees of Dartmouth College v. William H. Woodward,' was commenced in the Court of Common Pleas, Grafton County, State of New Hampshire, February Term, 1817. The declaration was trover for the books of record, original charter, common seal, and other corporate property of the college. The conversion was alleged to have been made on the 7th day of October, 1816. The proper pleas were filed, and by consent the cause was carried directly to the Superior Court of New Hampshire, by appeal, and entered at the May Term, 1817. The general issue was pleaded by the defendant, and joined by the plaintiffs. The facts in the case were then agreed upon by the parties, and drawn up in the form of a special verdict, reciting the Charter of the college and the acts of the Legislature of the State, passed June and December, 1816, by which the said corporation of Dartmouth College was enlarged and improved, and the said Charter amended.
"The question made in the case was, whether those acts of the Legislature were valid and binding upon the corporation, without their acceptance or assent, and not repugnant to the Constitution of the United States. If so, the verdict found for the defendants; otherwise it found for the plaintiffs.
"The cause was continued to the September Term of the court in Rockingham County, where it was argued; and at the November term of the same year, in Grafton County, the opinion of the court was delivered by Chief Justice Richardson, sustaining the validity and constitutionality of the acts of the Legislature; and judgment was accordingly entered for the defendant on the special verdict.
"Thereupon a writ of error was sued out by the original plaintiffs, to remove the cause to the Supreme Court of the United States, where it was entered at the term of the court holden at Washington on the first Monday of February, 1818.
"The cause came on for argument on the 10th day of March 1818, before all the judges. It was argued by Mr. Webster and Mr. Hopkinson, for the plaintiffs in error, and by Mr. Holmes and the Attorney-general (Wirt), for the defendant in error.