John Marshall and the Constitution, a Chronicle of the Supreme Court

by Edward Samuel Corwin

The greater difficulty arose from the fact that, whether implied or explicit, the contract before the Court was a public one. In the case of private contracts it is easy enough to distinguish the contract, as the agreement between the parties, from the obligation of the contract which comes from the law and holds the parties to their engagements. But what law was there to hold Georgia to her supposed agreement not to rescind the grant she had made? Not the Constitution of the United States unattended by any other law, since it protects the obligation only after it has come into existence. Not the Constitution of Georgia as construed by her own courts, since they had sustained the rescinding act. Only one possibility remained; the State Constitution must be the source of the obligation—yes; but the State Constitution as it was construed by the United States Supreme Court in this very case, in the light of the “general principles of our political institutions.” In short the obligation is a moral one; and this moral obligation is treated by Marshall as having been converted into a legal one by the United States Constitution.

However, Marshall apparently fails to find entire satisfaction in this argument, for he next turns to the prohibition against bills of attainder and ex post facto laws with a question which manifests disapproval of the decision in Calder vs. Bull. Yet he hesitates to overrule Calder vs. Bull, and, indeed, even at the very end of his opinion he still declines to indicate clearly the basis of his decision. The State of Georgia, he says, “was restrained” from the passing of the rescinding act “either by general principles which are common to our free institutions, or by particular provisions of the Constitution of the United States.” It was not until nine years after Fletcher vs. Peck that this ambiguity was cleared up in the Dartmouth College case in 1819.

The case of the Trustees of Dartmouth College vs. Woodward ¹ was a New England product and redolent of the soil from which it sprang. In 1754 the Reverend Eleazar Wheelock of Connecticut had established at his own expense a charity school for instructing Indians in the Christian religion; and so great was his success that he felt encouraged to extend the undertaking and to solicit donations in England. Again success rewarded his efforts; and in 1769 Governor Wentworth of New Hampshire, George III’s representative granted the new institution, which was now located at Hanover, New Hampshire, a charter incorporating twelve named persons as “The Trustees of Dartmouth College” with the power to govern the institution, appoint its officers, and fill all vacancies in their own body “forever.”

¹ The following account of this case is based on J. M. Shirley’s Dartmouth College Causes (St. Louis, 1879) and on the official report, 4 Wheaton, 518.

For many years after the Revolution, the Trustees of Dartmouth College, several of whom were ministers, reflected the spirit of Congregationalism. Though this form of worship occupied almost the position of a state religion in New Hampshire, early in this period difficulties arose in the midst of the church at Hanover. A certain Samuel Hayes, or Haze, told a woman named Rachel Murch that her character was “as black as Hell,” and upon Rachel’s complaint to the session, he was “churched” for “breach of the Ninth Commandment and also for a violation of his covenant agreement.” This incident caused a rift which gradually developed into something very like a schism in the local congregation, and this internal disagreement finally produced a split between Eleazar’s son, Dr. John Wheelock, who was now president of Dartmouth College, and the Trustees of the institution. The result was that in August, 1815, the Trustees ousted Wheelock.

The quarrel had thus far involved only Calvinists and Federalists, but in 1816 a new element was brought in by the interference of the Governor of New Hampshire, William Plumer, formerly a Federalist but now, since 1812, the leader of the Jeffersonian party in the State. In a message to the Legislature dated June 6, 1816, Plumer drew the attention of that body to Dartmouth College. “All literary establishments,” said he, “like everything human, if not duly attended to, are subject to decay.… As it [the charter of the College] emanated from royalty, it contained, as was natural it should, principles congenial to monarchy,” and he cited particularly the power of the Board of Trustees to perpetuate itself. “This last principle,” he continued, “is hostile to the spirit and genius of a free government. Sound policy therefore requires that the mode of election should be changed and that Trustees in future should be elected by some other body of men.… The College was formed for the public good, not for the benefit or emolument of its Trustees; and the right to amend and improve acts of incorporation of this nature has been exercised by all governments, both monarchical and republican.”

Plumer sent a copy of his message to Jefferson and received a characteristic answer in reply: “It is replete,” said the Republican sage, “with sound principles.… The idea that institutions established for the use of the nation cannot be touched nor modified, even to make them answer their end … is most absurd.… Yet our lawyers and priests generally inculcate this doctrine, and suppose that preceding generations held the earth more freely than we do; had a right to impose laws on us, unalterable by ourselves; … in fine, that the earth belongs to the dead and not to the living.” And so, too, apparently the majority of the Legislature believed; for by the measure which it promptly passed, in response to Plumer’s message, the College was made Dartmouth University, the number of its trustees was increased to twenty-one, the appointment of the additional members being given to the Governor, and a board of overseers, also largely of gubernatorial appointment, was created to supervise all important acts of the trustees.

The friends of the College at once denounced the measure as void under both the State and the United States Constitution and soon made up a test case. In order to obtain the college seal, charter, and records, a mandate was issued early in 1817 by a local court to attach goods, to the value of $50,000, belonging to William H. Woodward, the Secretary and Treasurer of the “University.” This was served by attaching a chair “valued at one dollar.” The story is also related that authorities of the College, apprehending an argument that the institution had already forfeited its charter on account of having ceased to minister to Indians, sent across into Canada for some of the aborigines, and that three were brought down the river to receive matriculation, but becoming panic-stricken as they neared the town, leaped into the water, swam ashore, and disappeared in the forest. Unfortunately this interesting tale has been seriously questioned.

The attorneys of the College before the Superior Court were Jeremiah Mason, one of the best lawyers of the day, Jeremiah Smith, a former Chief Justice of New Hampshire, and Daniel Webster. These three able lawyers argued that the amending act exceeded “the rightful ends of legislative power,” violated the principle of the separation of powers, and deprived the trustees of their “privileges and immunities” contrary to the “law of the land” clause of the State Constitution, and impaired the obligation of contracts. The last contention stirred Woodward’s attorneys, Bartlett and Sullivan, to ridicule. “By the same reasoning,” said the latter, “every law must be considered in the nature of a contract, until the Legislature would find themselves in such a labyrinth of contracts, with the United States Constitution over their heads, that not a subject would be left within their jurisdiction”; the argument was an expedient of desperation, he said, a “last straw.” The principal contention advanced in behalf of the Act was that the College was “a public corporation,” whose “various powers, capacities, and franchises all … were to be exercised for the benefit of the public,” and were therefore subject to public control. And the Court, in sustaining the Act, rested its decision on the same ground. Chief Justice Richardson conceded the doctrine of Fletcher vs. Peck, that the obligation of contracts clause “embraced all contracts relating to private property, whether executed or executory, and whether between individuals, between States, or between States and individuals,” but, he urged, “a distinction is to be taken between particular grants by the Legislature of property or privileges to individuals for their own benefit, and grants of power and authority to be exercised for public purposes.” Its public character, in short, left the College and its holdings at the disposal of the Legislature.

Of the later proceedings, involving the appeal to Washington and the argument before Marshall, early in March, 1818, tradition has made Webster the central and compelling figure, and to the words which it assigns him in closing his address before the Court has largely been attributed the great legal triumph which presently followed. The story is, at least, so well found that the chronicler of Dartmouth College vs. Woodward who should venture to omit it must be a bold man indeed.