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7The historical segment of the study is included to provide a background of persons and places involved in the caseand is not intended to be primary historical research.ProceduresThe study consists of three primary divisions, namelythe circumstances leading up to the decision, and the decisionitself; the investigation of subsequent citations of theDartmouth case; and an analysis of the impact.Each of thesedivisions will be developed separately.2he. DecisionIt is the intent of this division to reconstruct as muchof the web of history as possible.This was accomplished bythe examination of source material from such documents as theDartmouth Charter,8 the records of the Superior Court of NewHampshire,9 and the records of the Supreme Court of the UnitedStates .10In addition, research into the facts as presented byother authors was studied, investigated, and recast to bringto bear the facts as they pertained to the evolution of highereducation generally, and the Dartmouth decision specifically.84 Wheaton (17 US), 519.9Dartmouth. Woodward, 1 NH, Ill104 Wheaton (17 US), 518.(1817).

8Initial research indicated additional sources of informationwhich was examined in turn, providing information which ledto a more accurate and precise description of the facts asthey occurred.Subsequent DecisionsTo determine the impact of the Dartmouth case upon theevolution of higher education, investigation of subsequentcases which have used the Dartmouth decision as a point ofreference was carried out.court decisions,Since common law is derived fromthe cases cited have been decided, atleast in part, by consideration of 4 Wheaton (17 US),a point of reference.518asA case so decided becomes a reinforce-ment of the original decision,It is submitted then, thatthe investigation of each case involving higher education,referring to 4 Wheaton (17 US), 518, allows an accurate descriptive analysis of the impact of the original decision.The cases which have referenced 4 Wheaton (17 US), 518are listed in cumulative total in Shepard'. Unitedittios.12ZtsEach case listed was inspected to determine ifit pertained directly to higher education.A case fallinginto this category was examined to determine its possible immediate impact, and any potential subsequent influence thatmight have occurred as a result of the action.1 1 Clark,Each case isp. ix.1 2 Shepard's United SetesFrancisco, 1943), 103-106.Qitations, Vol. 1-313, (San

9identified by name, reference volume, and page.In addition,a brief summary of the facts of the case is given, and thepoint of law used to cite 4 Wheaton (17 US),518examined asa source of potential impact.Th. Analysis.thImactMany scholars have suggested that the Supreme Court inthe Dartmouth decision delayed publichigher education by atleast fifty years,13 while others have said that it merelyenhanced the future of private educationThe intent ofthis study was to arrive at a logical analysis of the impactof the decision and to provide an explanation of how theDartmouth decision might have influenced higher education.The analysis of the impact will be derived from theinvestigation of the cases listed in ghe'arQ;3chronological order.citations inThis investigation should identify theprobable immediate impact and possible future implications ofthe decision.The information obtained from this investiga-tion, when combined with other information from AmericanJurisrudene.cors Jrisfi, DecennialDjiests, and relevantlaw reviews should make this analysis possible.1Good, p. 99.l 4 Ellwood P. Cubberley, The. History(Cambridge, Mass., 1920), pp. 706-707.21.Education,

10SummaryThe study is presented in five chapters.Chapter Ipresents the background and introduction to the study.Chap-ter 1I presents a detailed account of the events leading upto the filing of the court action.ChapterIIpresents thefacts of the litigation from the time that the suit was fileduntil the actual judgement was handed down.Chapter IV ex-amines each case on higher education listed in Sherpd'sQjItaj*nwhich has used 4 Wheaton (17 US), 518 as at leasta partial basis for reaching a decision.Chapter V summarizesthe information, presents the analysis of the impact, andmakes recommendations which appear to be appropriate.

CHAPTER IIEVENTSLEADINGTO THE DARTMOUTH CASEThe institution of Dartmouth College was founded in 1755,when Joshua Moor deeded to Eleazar Wheelock real propertywith which to establish a charity school, for the educationof Indian youth.The school was named the Moor Indian Charity-School,1Through excellent advice, Wheelock petitioned the crownfor a royal charter.He was unsuccessful in an earlier at-tempt but was finally awarded the charter by Governor JohnWentworth, in the name of King George III of England, onDecember 18, 1769.The petition named Wheelock as the founderof the school, which was to be called Dartmouth College. 2In keeping with the provisions of the charter,the cor-poration was duly organized, October 22, 1770, with EleazarWheelock becoming its firstpresident.until his death on April 24, 1779.He held this positionIn his will, Wheelocknamed his son, John Wheelock, to succeed him as president.1 John. Shirley, 2'1i1879), pp. 21-22.Edward C. Elliot and(NewDlartmnuthM.M.jLlegj QQues (Chicago,Chambers, editors,Ba1.jamsSelected American CollegesYork, 1963), pp. 175-176.11Qartersd Universtties

12At first Wheelock was reluctant to accept the job but finallyaccepted after being urged to do so by the Trustees. 3John Wheelock served as president from 1779, until hewas released by the Trustees in 1815.During his tenure aspresident the makeup of the board underwent a considerablechange and by 1803, contained only one pre-1800 trustee.Thecomposition of the board during the controversy period wasmade up as shown in Table I.TABLE ITRUSTEES OF DARTMOUTH COLLEGE (1813-1817)NameBornTrmtoeDiedJohn WheelockNathaniel Niles175417411779-18151793-1821Thomas W. Thompson1766Stephen JacobTimothy FarrarElijah PaineJohn Taylor GilmanCharles MarshRev, Asa McFarlandRev. John SmithRev. Seth PaysonRev. Francis 7366244The underlying conflict between the Trustees and Wheelockbegan in 1783, with a dispute between two parishoners of the3 John(Concord,King Lord, A History af Dartputh Qa1lnge, II,N. H., 1913), pp. 1-6.I1ord, pp. 62-64.

13local church congregation in Hanover.The decision of thepastor was appealed to the Grafton Presbytry,where it was upheld, but the penalty was reduced.This dispute widened inscope, and spread to the Dartmouth community, where the Trusteestook one side and the president the other.5This clash was further intensified when the need arosefor a new church building, the existing building being toosmall for the needs of both the Hanover congregation and theCollege community.Unfortunately, the College was too poorto gain funds for the new building. Wheelock entered into anagreement with the Hanover congregation to build the new church.The agreement proved to be totally unsatisfactory, and was rescinded by the Trustees.This blow to Wheelock's authority was followed by furtherdisagreements about the pastor of the congregation, who wasusually the professor of Theology at the College.Wheelockwanted a man in this position who was subject to his willIn attempting to accomplish this, Wheelock became involved insatellite conflicts with the congregation in Hanover.Whee-lock's actions served as a source of irritation to the Trusteeswho began to resist his wishes, and refused to allow him touse College funds in his quarrels with the local townsmen.This breach between the board and Wheelock became common knowledge with the publication of the Boston Repertory of April 26,1815.An article in this paper candidly stated that a vacancy5shirley,pp. 67-68.

14in the office of president was expected soon.The DartmouthQaz et2 of May 3, denied any truth to the rumor, but the dispute was out in the open. 6Sensing that he was losing control, Wheelock decided toappeal to the legislature for aid.At this time the legisla-ture had a Federalist majority but did not wish to createproblems for itself since elections were near.It does notappear that Wheelock was motivated in this action by politicalreasons; it is more likely that he only sought to gain thesympathies of powerful men in the legislature.In makingthis appeal, he enlisted the aid of his friend, Elijah Parish,who assisted him in writing and publishing an eighty-eightpage pamphlet entitled, Sketches S1the Historn aLfartmasamCollege1Sfrd Moor's Charity-hool With a Particular Accome LaJ& Remarkablethear17222Proceedings aL 1dmthe l. Y.ar115.Bard.LTrust eesThe publication of thispamphlet attracted much attention and drew a number of peoplewho felt that they could use the Dartmouth controversy forpolitical gain.tor of the JOne of these people was Isaac Hill, the edi-j Hampshir btriot, an anti-Federalist newspaper.Hill took advantage of the conflict to blame the Federalistsfor all of the problems of the government.6Lord, pp. 11-64.He hoped to use

15the situation to help to bring the Democrats to power in the1816 elections.?The Trustees decided that they could no longer condoneWheelock's actions and dismissed him as president of the Collegeon August 28, 1815, and appointed Francis Brown in his stead.8The state elections took place on March5,1816.In thiselection, New Hampshire elected William Plumer as governorand the Democratsgaineda majority in the state legislature.In his inaugural address, Plumer brought the Dartmouth controversy to the legislature when he challenged the legality ofthe Dartmouth Charter and implored the legislature to takesteps to correct an intolerable situation and to " . . . makefurther provisions as will render this important institutionmore useful to mankind ."9The legislature heeded Plumer's appeal and passed astatute which effectively passed control of Dartmouth Collegefrom the Charter Trustees to a board appointed by the governor,and changed the name of the school to Dartmouth University.The bill was passed along party lines and became law on June 27,1816.107 WilliamGwyer North, "The Political Background of theDartmouth College Case," E England Quarterly, XVIII (March,1945), 181-192.8 Lord,pp. 70-77.9 WilliamPlumer, Jr., Life1857), pp. 436-438.1 0 Lord,pp. 86-90.William Plumer (Boston,

16The College Trustees at this time were unsure of whatprocedure they might follow, but it appeared that they wishedto resist the enforcement of the statute.At their nextscheduled meeting they adopted a resolution accordingly,which stated:iResolved, that we the Trustees of DartmouthCollege do not accept the provisions of an act ofthe Legislature of New Hampshire approved June 27,1816 entitled "An act to ammend the charter andenlarge and improve the corporation of Dartmouth,"but do hereby expressly refuse to act under thesame.This resolution and the Trustees' unwavering adherence to itsprinciples became a key point in the eventual Supreme Courtdecision.The College meeting continued until September 27, 1816,and during this period they voted to vacate the office ofSecretary-Treasurer.This office was held by William H. Wood-ward, who had sided with the University Trustees.The Trusteesthen named Mills Olcott to fill the vacancy. 1 2The resistance of the College officials gave the governorcause to examine the state's legal position, and appealed tothe Superior Court of New Hampshire for an opinion concerninglegality of the act of June 27, and whether or not action couldbe taken under its authority.The court suggested that actioncould be taken under its authority.11 Lord,12p. 95.Lord, pp. 98-99.The court suggested that

17action under the present law was unwise and demurred on givingconstitutional advice in the face of possible future litigation.It was during this period that Mills Olcott took actionto recover property which had been retained by William H.Woodward when he was dismissed.Woodward refused to give upthe property, stating that he did not believe that Olcott wasoperating under legally vested authority.The action of at-tempted recovery was taken and resisted on October 7, 1816.13The University Trustees were frustated since they wereunable to function under the law of June 27, as it was written.To remedy this situation, two new statutes were passed on December 18, and December 26.The first law allowed the Uni-versity officials to act without the presence of a quorum,and the second assessed a 500 penalty for obstructing theUniversity Trustees in the performance of their duties.As a result of the new acts, the University officialsmet and adopted a show cause action, ordering each of theTrustees, the president, and certain professors to showcausewhy they should not be removed from their respective offices.The president and the professors replied, stating that theybelieved the legislativeacts of 1816 to be illegal,and thatas a consequence it was their duty to await the outcome of thelitigation underway by the Charter Trustees.1 3 Shirley,pp. 116-118.

18The acts also generated action among the College Trustees.This action took the form of communications to determinepossible courses which they might follow.In one of theseletters Olcott requested advice on how he might recover theCollege'sproperty from Woodward.He was advised that theproper action would be a suit to recover the propertythroughthe courts.Armed with this advice, Olcott filed suit to re-cover these properties of the College.The basis for thesuit was Woodward's refusal to surrender these properties onOctober7,1816.This action was filed in the Common PleasCourt of Grafton County on February 8, 1817, and set damagesat 50,000.

CHAPTER IIITHE DECISIONThe transition of the College problem from confused disagreement to the more orderly process of the law occurredafter Olcott filed his court action.This change was notimmediately apparent since both sides were stillmaneuveringfor control of the College.When neither the College Trustees nor the officers answered the show cause order, resulting from the February 4thmeeting of the University officials, their offices were vacated and other men were appointed to replace them.1John Wheelock was appointed in place of Francis Brown asPresident; however, due to Wheelock's illhealth, his son-in-law, William Allen, was charged to act for Wheelock untilsuch time that Wheelock could assume the duties himself.Allen was also named to serve as the Phillips Professor ofTheology in place of Shurtleff; Nathaniel H. Carter was namedas Professor of Languages;and James Dean was named as Pro-fessor of Mathematics and Philosophy in place of Adams.1John King Lord, A liston at fla rnuth Qole(Concord,N. H., 1913), 112.2, IIRichard W. Morin, "Will to Resist," Dartmouth Alumnijaggzjn,, (April, 1969), p. 2719

20This organizational arrangement did not remain staticfor long, due to the death of John Wheelock on April 4thatthe age of sixty-three.His death moved Allen into the presi-dency at a meeting of the University officials on June 12,1817.At this same meeting Thomas C. Searle was named Pro-fessor of Logic and Metaphysics.This was the organizationof Dartmouth University as the controversy proceeded into itslegal phase.'The organization of the College remained un-changed, except for the addition of Moses Payson to theBoardin place of Jacob, who died in February.4When Olcott filed the suit in the Common Pleas Court ofGrafton County, an immediate problem was created, sinceWilliam H. Woodward, the defendant, was the judgeof thiscourt.This situation forced the case to be moved to theSuperior Court of New Hampshire.The docket of this courtwas normally filled with cases brought up on appeal;however,due to prearranged agreement, the case was assigned ahearingat the May session of the Court at Haverhill.At this hearingthe case was argued by Jeremiah Mason and JeremiahSmith forthe plaintiffs, and George Sullivan, the Attorney-GeneralofNew Hampshire, aided by Ichabod Bartlett for the defense.No verdict was rendered, and Bartlett drew up anagreement requesting " . . . that the case be statedin a specialLord, p. 115.Lord, p. 119.

21verdict to be drawn up (before the opinion of the court shouldbe delivered) by counsel under the direction of the court."This verdict was to cover all points necessary to raisequestions concerning the validity of the June and Decemberacts of the Legislature and, if found for the plaintiffs,award proper damages which would be discharged by the returnof the property in the possession of the defendant.Thecounsel for the Trustees rejected this agreement and offereda counter proposal.Agreement was finally reached on the dayafter the close of the May session and read as follows:Trustees of Dartmouth College vs. W. H. Woodward.It is agreed by the counsel for both parties that thecase be stated in a special verdict, to be drawn up(before the opinion of the court shall be delivered)by the counsel, under the direction of the court.The verdict shall contain all things necessaryand proper in the opinion of the court to raise thequestion on the validity of the acts of the Legislature on the subject of the College or University25 May, 1817Sup. CourtGraftonJeremiah Smith)J. MasonFor Plfs.George Sullivan) For Dfts.Icha. Bartlett)The difference in the wording of the two agreements is foundin the method used in satisfying the award of damages.Itdoes not appear that counsel for the plaintiffs would besatisfied with the mere return of the College property, butdue to the time consumed in reaching the agreement, the

22decision had to be delayed until the September sessionof thecourt at Exeter.5Supporters of the College were elated at the resultsofthe hearing at Haverhill, but these were people untrainedinthe legal profession. Those persons who knew thereal meaningof the situation were considerably more skeptical.This pes-simism was shared by the famous Daniel Webster, whosaid,"Itwould be a queer thing if Gov. P.'s court shouldrefuse to execute his laws." These words also summed up Webster'sthoughtson the probability of winning the case in the state courts,since he felt that their only chance existed withthe SupremeCourt of the United States.6In this respect Webster was arealist, since all of the judges of the Superior Courthadbeen appointed by Plumer, and of these men onlyRichardsonw

quently referred to as "the great case of Dartmouth College v. Woodward," or "the celebrated Dartmouth College Case.t " Officially, the case is known as The Trustees of Dartmouth College v. William H. Woodward, and can be found in its en-tirety in Volume 17 (4 Wheaton) of the United States Supreme Court Reports, page 518.Author: James Heasom Filkins