A file in the online version of the Kouroo Contexture … · 2015. 4. 27. · spring, forcing Eleazar Wheeloc k to import, at great expense, foods fr om parts of Massachusetts not

DARTMOUTH COLLEGE

And yet — in fact you need only draw a single threadat any point you choose out of the fabric of lifeand the run will make a pathway across the whole,and down that wider pathway each of the other threadswill become successively visible, one by one.

— Heimito von Doderer, DIE DÂIMONEN

“NARRATIVE HISTORY” AMOUNTS TO FABULATION, THE REAL STUFF BEING MERE CHRONOLOGY

“Stack of the Artist of Kouroo” Project Dartmouth College

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DARTMOUTH COLLEGE DARTMOUTH COLLEGE

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In this year or the following one, the Reverend Nathaniel Whitaker, who had been for some time a minister of Norwich, Connecticut, and Sampson Occum, the first native American preacher educated by the Reverend Mr. Wheelock, afterwards President of Dartmouth College, journeyed to England to solicit donations for the support of Mr. Wheelock’s school “for the education of Indian youth, to be missionaries and school-masters for the natives of America.”

1765

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NOBODY COULD GUESS WHAT WOULD HAPPEN NEXT

Dartmouth College “Stack of the Artist of Kouroo” Project

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September 28, Friday: On page 2 of The New-Hampshire Gazette there appeared a notice by the Reverend Eleazar Wheelock (1711-1779) that Moor’s “Indian charity-school” at Lebanon, Connecticut “is now become a body corporate and politic, under the name of Dartmouth-College, by a most generous and royal charter” dated December 13, 1769.

ELEAZAR WHEELOCK (president 1769-1779): Eleazar Wheelock, aCongregational minister from Connecticut, founded DartmouthCollege in 1769 and served as its first president. The last ofthe Colonial colleges, Dartmouth was established by a chartergranted by King George III, with funds from the second Earl ofDartmouth and others and a grant of land from John Wentworth,Royal Governor of the Province of New Hampshire. Wheelock hadearlier established Moor’s Charity School in Lebanon,Connecticut, to provide education to young American Indian menand train them for missionary work. Hoping to expand his schoolinto a college, but unable to gain a charter in Connecticut,Wheelock looked to the north, where settlements were growingand, with them, the need for educational institutions. SamsonOccom, a Mohegan Indian and one of Wheelock’s first students,was instrumental in making Wheelock’s dream a reality by raisingfunds and goodwill from English and Scottish missionaryorganizations. A major figure in the first Great Awakening,Wheelock was a visionary and a preacher of some renown, a careerhe continued at Dartmouth where, in addition to President, hewas also Trustee, Professor of Divinity and Minister of theCollege Church. Devoted to the College he had carved out of thewilderness, Wheelock was also thoroughly practical andthroughout the difficult years of the Revolutionary War forgedthe political alliances and raised the funds necessary to keepthe fledgling enterprise open. Largely because of his efforts,Dartmouth is one of the few American colleges to havecontinually graduated a class since 1771.1

1770

1. All the Dartmouth College presidential portraits are in the college’s Hood Museum of Art in Hanford, New Hampshire.



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After considering various sites in New Hampshire, the trustees in England had chosen the town of Hanover.

Before setting out for Hanover to supervise the clearing of the site and the construction of the first buildings to house his family and the students, Eleazar Wheelock had written the trustees from Lebanon CT on July 29, 1770 outlining his plan of action:2

A few days later, on August 1, Eleazar Wheelock had written to Governor John Wentworth of New Hampshire:

The melancholly recots of Destruction by worms make me fearwhether I shall be able to subsist with my mushroming family inthe woods the ensuing winter. howevr, I am preparing to removeas fast as I can.3

Damage to the crops in the summer of 1770 would lead to a food shortage during the following winter and spring, forcing Eleazar Wheelock to import, at great expense, foods from parts of Massachusetts not affected. He would report in February 1771 that:4

I am forced to support those I have [family, students, laborers]from Northfield, Northampton, etc, and by reason of the droughtand worms last year every article of provisions is held atdearest rate.

These worms were the larvae or caterpillars of the Cirphis unipunctata moth.5

A number of army worm infestations occurred in New England after 1770, and there had been earlier reports.6 An infestation had been recorded in Maine by the Reverend Thomas Smith in his journal of June 27, 1743-July 1, 1743:

There are millions of worms, in armies, appearing andthreatening to cut off every green thing; people are exceedinglyalarmed. July 1. Days of fasting are kept in one place andanother, on account of the worms. An exceeding scarce time forhay; it is 7 to 8 a load.7

2. Dartmouth College Library, Special Collections, Ms. 770429. According to Holland, W.J. THE MOTH BOOK. NY: Doubleday, Page and Co., 1905, page 200, the worms were the larvae or caterpillars of the Cirphis unipunctata moth.3. Dartmouth College Library, Special Collections, Ms. 770451.4. Chase, Frederick. A HISTORY OF DARTMOUTH COLLEGE AND THE TOWN OF HANOVER, NEW HAMPSHIRE, ed. by John K. Lord. Cambridge MA: John Wilson and Son, 1891-1913, Volume I, pages 223-4.5. Holland, W.J. THE MOTH BOOK. NY: Doubleday, Page and Co., 1905, page 200. 6. Riley, Charles V. SECOND ANNUAL REPORT ON THE NOXIOUS, BENEFICIAL AND OTHER INSECTS OF THE STATE OF MISSOURI. Jefferson City MO, 1870, page 42. 7. Smith, Thomas. JOURNALS OF THE REV. THOMAS SMITH, AND THE REV. SAMUEL DEANE, PASTORS OF THE FIRST CHURCH IN PORTLAND, WITH NOTES AND BIOGRAPHICAL NOTICES: AND A SUMMARY HISTORY OF PORTLAND, BY WILLIAM WILLIS. Portland ME: Joseph S. Baily, 1849, page 215.

I am preparing to remove immediately, unless a reportvery lately come among us, viz. that an army of Worms,which have this year invaded several parts of thisLand, have so prevail’d as to cut off great part of thecrops in yt. Country & threaten them with greatscarsity, should be so confirm’d as to convince me Imust stay for want of subsistance.



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Benjamin West was awarded an honorary degree by Dartmouth College.

THE NEW-ENGLAND ALMANACK FOR 1772. By Benjamin West, Philomath. Providence, Rhode Island: John Carter.

It contains account of the compass variation for Providence anda table to calculate the number of days from any day of one monthto the same day of any other month.

THE NEW-ENGLAND ALMANACK FOR 1772. By Benjamin West, A.M. Newport, Rhode Island: Ebenezer Campbell.

WEST’S SHEET ALMANACK, FOR THE YEAR 1772.

Broadside. No copy located. Advertised in Providence Gazette.

THE RHODE-ISLAND ALMANACK, OR ASTRONOMICAL DIARY, 1772. By John Anderson,8 Philomath. Newport, Rhode Island: Solomon Southwick.

This is the first of the series of Anderson Almanacs.

1772

8. Since in fact there is no record of any “John Anderson” living at Newport, and since in the preface of the1773 almanac we notice the question being raised “Who is this John Anderson?,” we are probably safe in put-ting this identity down as yet another pseudonym.

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At the age of 14, Stephen Burroughs ran away to enlist in the army. He would shortly desert, and enter Dartmouth College.

JOHN WHEELOCK (president 1779-1815): John Wheelock assumed thepresidency of Dartmouth upon his father’s death in 1779. Neithera cleric nor an academic, Dartmouth’s second and youngestpresident was confronted with the task of building upDartmouth’s finances and physical resources after the ravagesof the Revolutionary War. While his relationship with the statelegislature led to a legal crisis for the College and thecontroversy surrounding his latter years in office cast a shadowover his administration, Dartmouth made tremendous progressunder his leadership. Two of the College’s most renowned alumni,Daniel Webster (1801) and Sylvanus Thayer (1807) graduatedduring his tenure, and he was instrumental in founding thefourth medical school in the nation in 1797 under Dr. NathanSmith. John Wheelock also began building the historic DartmouthHall, which has become one of the country’s best-knowncollegiate buildings.9

1779

9. All the Dartmouth presidential portraits are in the college’s Hood Museum of Art in Hanford, New Hampshire.

MUMPERY



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Toward the end of his 15th-Century captivity in England, Prince James Stewart of Scotland had written a long poem for Lady Joan Beaufort, “The Kingis Quair.” In this year William Tytler discovered the poem among manuscripts in the Bodleian Library at Oxford University. Its 7-line stanza scheme would become known as “rime royal.”

US independence was recognized in the Treaty of Paris.

The “Peace of 1783” with England, signed by Benjamin Franklin, gave the new national government in North America a chance to settle scores at home. Among other punishments for disloyalty (loyalty), the mansion and estate of Colonel Elisha Jones outside Weston, Massachusetts, at which the Reverend Asa Dunbar and his wife Mary Jones Dunbar, the Colonel’s daughter, had been residing in 1775 and 1776, was confiscated

1783

READ THE FULL TEXT

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by representatives of the new American government. Suddenly they belonged to someone else.

(Oh, well, you didn’t want David Henry to grow up a poor little rich kid, now did you!)

Here are a bunch of American loyalists, leaving everything behind and fleeing to Canada (think of the helicopters taking off from the roof of the American Embassy in Saigon, crowded with panicked refugees — it was that sort of situation):

Early in the year Asa Dunbar was admitted to practice law in New Hampshire, and when Elijah Dunbar graduated from Dartmouth College later on during this year he came to study law in the Keene office of his Uncle Asa before beginning to practice law in Keene, New Hampshire and Claremont. At that time Asa, Simeon Olcott, Benjamin West (neither the famous painter nor the Rhode Island almanac-maker), and Daniel Newcomb were the only lawyers in Cheshire County.

January 23, Saturday, 1858: … Mrs. William Monroe told Sophia last evening that she rememberedher (Sophia’s) grandfather very well, that he was taller than Father, and used to ride out to their house–she wasa Stone and lived where she and her husband did afterward, now Darius Merriam’s–when they made cheeses,to drink the whey, being in consumption. She said that she remembered Grandmother too, Jennie Burns, howshe came to the schoolroom (in Middle Street (?), Boston) once, leading her little daughter Elizabeth, the latterso small that she could not tell her name distinctly, but spoke thick and lispingly,– “Elizabeth OrrockThoreau.”10

10. Vide February 7th.

DUNBAR FAMILY

JEAN THOREAUJANE “JENNIE” BURNS THOREAU

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One should not forbear to mention that it would not have taken much to be “taller than Father” John Thoreau, who was a remarkably short man, and that thus this passage in the journal in no way implied that Jean Thoreau had been tall.

February 7, 1858: …Aunt Louisa Dunbar has talked with Mrs. Monroe, and I can correct or add to myaccount. She says that she was then only three or four years old, and that she went to school somewhere inBoston, with Aunt Elizabeth and one other child, to a woman named Turner, who kept a spinning-wheel a-goingwhile she taught these three little children. She remembers that one sat on a lignum-vitæ mortar, turned bottomupward, another on a box, and the third on a stool; and then she repeated the story of Jennie Burns bringing herlittle daughter to the school, as before. …

February 8, 1858: …Mrs. Monroe says that her mother, Mrs. Stone, respected my grandfather Thoreauvery much, because he was a religious man. She remembers his calling one day and inquiring where bluevervain grew, which he wanted to make a syrup for his cough; and she, a girl, happening to know, ran andgathered some. …

NO-ONE’S LIFE IS EVER NOT DRIVEN PRIMARILY BY HAPPENSTANCE

JANE “JENNIE” BURNS THOREAU

JEAN THOREAU




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At the age of 21, Thomas Green Fessenden matriculated at Dartmouth College.

LIFE IS LIVED FORWARD BUT UNDERSTOOD BACKWARD?— NO, THAT’S GIVING TOO MUCH TO THE HISTORIAN’S STORIES.

LIFE ISN’T TO BE UNDERSTOOD EITHER FORWARD OR BACKWARD.

1792




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In Concord, Ephraim Wood, Asa Brooks, and Jacob Brown were Selectmen and Ephraim Wood was again Town Clerk.

John Merrick practiced law in Concord.

Samuel Bartlett of Concord was chosen Register of Deeds, and removed to Cambridge.

Jonathan Fay was Concord’s deputy and representative to the General Court.

Nathaniel Coverly began a print shop near the Concord courthouse, and there printed and sold the Reverend Timothy Priestley (1734-1814)’s THE CHRISTIAN’S LOOKING GLASS, OR THE TIMOROUS SOUL’S GUIDE: BEING A DESCRIPTION OF THE WORK OF THE HOLY SPIRIT UPON THE HEART, INTENDED FOR THE RELIEF OF THE DISCONSOLATE, / BY THE REV. T. PRIESTLEY. PASTOR OF A CHURCH OF CHRIST IN LONDON.

Samuel Thatcher, hired from elsewhere, taught Concord’s grammar students for one year. Concord’s

1794



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educational effort would cost the town £200.

A cupola was added to Concord’s 1719 courthouse.

James Temple of Concord, son of the farmer Benjamin Temple, graduated from Dartmouth College. He would be teaching the grammar-school in Concord in 1795 and 1796, and reading law in the offices of Jonathan Fay, Esq. Eventually he would be commencing professional business in Cambridge.

JAMES TEMPLE [of Concord], son of Benjamin Temple, was bornSeptember 20, 1766, and graduated at Dartmouth College in 1794.He taught the grammar-school in Concord in 1795 and 1796, andread law with Jonathan Fay, Esq. He commenced professionalbusiness in Cambridge, but died March 10, 1802, aged 35.11

There was a survey of Concord ponds:

1785 Nathaniel Bridge 9 months 1812 Isaac Warren 1 year

1786 JOSEPH HUNT 2½ years 1813 JOHN BROWN 1 year

1788 William A. Barron 3 years 1814 Oliver Patten 1 year

1791 Amos Bancroft 1 year 1815 Stevens Everett 9 months

1792 Heber Chase 1 year 1815 Silas Holman 3 months

1793 WILLIAM JONES 1 year 1816 George F. Farley 1 year

1794 Samuel Thatcher 1 year 1817 James Howe 1 year

1795 JAMES TEMPLE 2 years 1818 Samuel Barrett 1 year

1797 Thomas O. Selfridge 1 year 1819 BENJAMIN BARRETT 1 year

1798 THOMAS WHITING 4 years 1820 Abner Forbes 2 years

1802 Levi Frisbie 1 year 1822 Othniel Dinsmore 3 years

1803 Silas Warren 4 years 1825 James Furbish 1 year

1807 Wyman Richardson 1 year 1826 EDWARD JARVIS 1 year

1808 Ralph Sanger 1 year 1827 Horatio Wood 1 year

1809 Benjamin Willard 1 year 1828 David J. Merrill 1 year

1810 Elijah F. Paige 1 year 1829 John Graham 1 year

1811 Simeon Putnam 1 year 1831 John Brown

11. Lemuel Shattuck’s 1835 A HISTORY OF THE TOWN OF CONCORD;.... Boston: Russell, Odiorne, and Company; Concord MA: John Stacy(On or about November 11, 1837 Henry Thoreau would indicate a familiarity with the contents of at least pages 2-3 and 6-9 of this historical study.)

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PONDS.— White Pond lies in the southwest part of the town, andreceives its name from the purity of its waters. It has novisible outlet and contains 43 acres.12 Fairhaven Pond forms akind of bay in Concord river which passes through it, containingabout 73 acres. Walden Pond lies in the south part of the towneasterly of Fairhaven, and contains 65 acres. This pond also hasno visible outlet. It is said no fish were caught in it, tillthey were transplanted there from other waters. Pickerel andother fish are now plenty there. Goose Pond, lying easterly ofWalden Pond, is one of a number of small ponds, in a tract ofland peculiarly broken into ridges and vales, which in someseasons are nearly dry. Bateman’s Pond lies east of Mr. DanielWood’s, and contains 30.13

Representatives of Lincoln14

12. The estimates of the number of acres in these ponds and the width of the rivers, is from a survey made by Judge Wood in 1794, and returned to the Secretary’s office in Boston, agreeably to an order of the General Court.13. Lemuel Shattuck’s 1835 A HISTORY OF THE TOWN OF CONCORD;.... Boston: Russell, Odiorne, and Company;

Concord MA: John Stacy(On or about November 11, 1837 Henry Thoreau would indicate a familiarity with the contents of at least pages 2-3 and 6-9 of this historical study.)

Chambers Russell ’54-57, ’59, ’62, ’63, ’5. Joshua Brooks 1809-1811.

Samuel Farrer 1766-1768. Leonard Hoar 1812-1814.

Eleazer Brooks ’74-’78, ’80, ’5, ’7, ’90-’2. William Hayden 1815, 1816.

Chambers Russell 1788. Elijah Fiske 1820-1822.

Samuel Hoar ’94, ’95, ’97, ’98, 1801, ’3-’8. Joel Smith 1824.

Samuel Farrar, Jr. 1800. Silas P. Tarbell 1827, 1828.

Not represented 1758, ’60, ’62, ’69-’73, ’79, ’81, ’82, ’86, ’89, ’93, ’96, ’99, 1802, ’17, ’23, ’25, ’26.

14. Ibid



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In the Virginia colony of the North American seaboard, a white planter named George Washington was advertising for the capture of one of his slaves, who had escaped from his plantation. The planter stipulated for some reason, however, that this advertisement should not appear north of Virginia.

The Reverend Nathaniel Whitaker died in Virginia.

NATHANIEL WHITAKER, son of David Whitaker, was graduated [atHarvard College] in 1730. After being some time employed as aminister at Norwich in Connecticut, he went to England in 1765or 1766, accompanied by Sampson Occum, the first Indian educatedby the Rev. Mr. Wheelock, afterwards President of DartmouthCollege, to solicit donations for the support of Mr. Wheelock’sschool “for the education of Indian youth, to be missionariesand school-masters for the natives of America.” He was installedJuly 28, 1769, over the 3d Church in Salem. In 1774 his meeting-house was burnt, and a division in his society took place. Heand his friends erected a new house, and called it the TabernacleChurch in 1776; but, difficulties having arisen, he wasdismissed in 1783, and installed at Canaan, Maine, September 10,1784. He was again dismissed in 1789, and removed to Virginia,where he died.15

1795

15. Lemuel Shattuck’s 1835 A HISTORY OF THE TOWN OF CONCORD;.... Boston: Russell, Odiorne, and Company; Concord MA: John Stacy(On or about November 11, 1837 Henry Thoreau would indicate a familiarity with the contents of at least pages 2-3 and 6-9 of this historical study.)



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At the age of 25, Thomas Green Fessenden graduated from Dartmouth College as valedictorian of his small class. He had written there a ballad, “Jonathan’s Courtship,” which was reprinted in England. This budding poet would study for the law in the office of Nathaniel Chipman in Rutland, Vermont while authoring humorous poems and other materials for the Farmer’s Weekly Museum of Walpole, New Hampshire.

THE FUTURE IS MOST READILY PREDICTED IN RETROSPECT

1796




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Our national birthday, Friday the 4th of July: The Republican orator Matthew Livingston Davis, in New-York, addressing the Tammany Society, praised “the capacious mind and nervous pen of Jefferson,” which had communicated “the voice of a free, united and indignant people” by producing a “Manly and energetic” text distinguished by a “Solemn and impressive ... sound.”16 Meanwhile the Republican orator John J. Pringle, in Charleston SC, was extolling “JEFFERSON, in whose perspicuous and energetic language is expressed that sublime memorial of the rights, and the spirit of free-born Americans.”17 How bad was this cult of personality getting? –Was it getting as bad as the cult of personality in regard to Hitler that was exhibited by Germans during the Third Reich? –Was it getting as bad as the cult of personality in regard to Mussolini that was exhibited by Italians under Fascism? –Was it getting as bad as the cult of personality in regard to Hirohito that was exhibited by the Japanese in the era of the Greater East Asia Co-Prosperity Sphere? –Was it getting as bad as the cult of personality in regard to Mao that has been exhibited by the Chinese of the PRC? –Was the cult of personality in the young United States of America getting as bad as the adoration of Uncle Joe Stalin that had been put on display by the ever-so-loyal commie symps of the USSR? It must have been getting pretty damned annoying, for in Philadelphia at this point a couple of Federalist schoolmasters got up and stomped out of a patriotic celebration when one of their own pupils stood up to recite the Declaration of Independence!

In New-York the first local advertisements for fireworks appeared and at the Mount Vernon Garden there was a display of “a model of Mount Vernon, 20 feet long by 24 feet high, illuminated by several hundred lamps.” In Philadelphia, Pennsylvania the US Marine Band, directed by Colonel William Ward Burrows, provided music for the Society of the Cincinnati celebration held at the City Tavern. At Dartmouth College in Hanover, New Hampshire a student named Daniel Webster delivered what would turn out not to be his last Fourth of July oration.

Etienne-Nicolas Mehul lent Ignace Pleyal 10,000 francs, to expand his business.

1800

16. AN ORATION, DELIVERED IN ST. PAUL’S CHURCH, ON THE FOURTH OF JULY, 1800 (NY, 1800)17. AN ORATION, DELIVERED IN ST. PHILIP’S CHURCH, BEFORE THE INHABITANTS OF CHARLESTON, SOUTH-CAROLINA, ON THE FOURTH OF JULY, 1800 (Charleston SC, 1800)

THOMAS JEFFERSON



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As TIME Magazine has pointed out on its cover, American kids were being given a very new and very divisive idea of the 4th of July:



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Daniel Webster graduated from Dartmouth College. After his period of apprenticeship, he would open a legal practice in Portsmouth, New Hampshire in 1807.

THE FUTURE CAN BE EASILY PREDICTED IN RETROSPECT

1801




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Benjamin Dudley Emerson and his brother Abner Emerson graduated from Dartmouth College. Benjamin would teach for many years in Newburyport, Massachusetts and Boston. Abner would teach in Somerville, Massachusetts but die at a relatively earlier age.18

Henry Root Colman graduated from Dartmouth College.

George Ticknor entered the Junior Class at Dartmouth College.

1805

18. I am unable to uncover evidence that the math whiz of the family, Frederick Emerson, attended college (which may or may not mean that he did not attend, taking into account the collateral fact that I am also unable to uncover evidence as to when and where he died and am, nevertheless, convinced that he has indeed died).



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THE NEW-ENGLAND ALMANACK FOR 1807. By Isaac Bickerstaff. Providence, Rhode Island: John Carter.

CURTIS’S POCKET ALMANACK, AND REGISTER OF NEW-HAMPSHIRE FOR THE YEAR 1807. Samuel Curtis. Amherst, New Hampshire: Printed by Joseph Cushing. The 1800 census of New Hampshire by town, its militia officers, its postmasters, its attorneys, its county criers, its ministers, etc. The description of Dartmouth College indicated that its library comprised some 3,000 volumes.

George Ticknor graduated from Dartmouth College. He would be studying Latin and Greek with the Reverend Dr. John Sylvester John Gardiner, rector of Boston’s Trinity Church.

DO I HAVE YOUR ATTENTION? GOOD.

1807




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John Keyes graduated from Dartmouth College. He would read law with John Abbot of Westford.

CHANGE IS ETERNITY, STASIS A FIGMENT

1809




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In this year or the following one Moses Prichard and Samuel Burr purchased the “Green Store” of Isaac Hurd, Jr. and continued it under the name “Burr & Prichard.” Moses boarded with Jonathan Wheelock in the house on Main Street in Concord which he afterwards bought, and which is now owned and occupied by members of his family (among his fellow boarders were Samuel Hoar, Nathan Brooks, John Keyes, and John Barrett).

Jonas Wheeler of Concord, son of Jotham Wheeler, graduated from Harvard College. He would read law with Erastus Root, Esq., of Camden, Maine, and settle in the profession in that town.

JONAS WHEELER [of Concord], son of Jotham Wheeler, was bornFebruary 9, 1789, and graduated [at Harvard College] in 1810.He read law with Erastus Root, Esq., of Camden, Maine, andsettled in the profession in that town. He was justice of thepeace, Colonel in the militia, delegate to form theconstitution, a representative and a member of the Senate ofMaine, of which he was President the two last years of his life.He died May 1, 1826, aged 37.19

John Barrett and Joshua Barrett of Concord, sons of the farmer John Barrett, Jr., graduated respectively from Williams College and Dartmouth College. The brothers would continue their studies in theology, and become reverends.

JOHN BARRETT [of Concord], son of John Barrett, Jr., was bornSeptember 30, 1781, and graduated at Williams College in 1810.After obtaining a theological education he was employed by theEvangelical Society, and went to Ohio. He was ordained atMesopotamia, Trumbell County, Ohio, February 22, 1827.20

JOSHUA BARRETT [of Concord], brother to the preceding [theReverend John Barrett], was graduated at Dartmouth College in1810. He studied divinity and was employed as a preacher andmissionary till he was ordained, January 11, 1826, over theSecond church in Plymouth near the Manomet Ponds.21

1810

19. Lemuel Shattuck’s 1835 A HISTORY OF THE TOWN OF CONCORD;.... Boston: Russell, Odiorne, and Company; Concord MA: John Stacy(On or about November 11, 1837 Henry Thoreau would indicate a familiarity with the contents of at least pages 2-3 and 6-9 of this historical study. On July 16, 1859 he would correct a date mistakeburied in the body of the text.)

20. Ibid.21. Ibid.

NEW “HARVARD MEN”

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Edward Hitchcock became principal of Deerfield Academy, where he had been a student. He published a poem of some 500 lines, “'Emancipation of Europe or, The downfall of Bonaparte. A tragedy” (Denio and Phelps). During his period at this school, Edmund M. Blunt, publisher of the AMERICAN NAUTICAL ALMANAC, offered a reward of $10 for the discovery of an error in the work and so he supplied a list of 57. When the publisher failed to supply the reward or notice this attempt at assistance, he had his list 57 errors published by the American Monthly Magazine (a year later, when the AMERICAN NAUTICAL ALMANAC would be reissued in a somewhat revised form without offering him credit for these corrections, he would repeat the process by producing a list of 35 errors in the new edition).

The Reverend Francis Brown took over as president of Dartmouth College:

FRANCIS BROWN (president 1815-1820): Francis Brown, a pastorfrom North Yarmouth, Maine, presided over Dartmouth Collegeduring the famous Supreme Court hearing of Trustees of DartmouthCollege v. William H. Woodward or, as it is more commonly called,the Dartmouth College Case. The contest was a pivotal one forDartmouth and for the newly independent nation. It tested thecontract clause of the Constitution and arose from an 1816controversy involving the legislature of the state of NewHampshire, which amended the 1769 charter granted to EleazarWheelock, making Dartmouth a public institution and changing itsname to Dartmouth University. Under the leadership of PresidentBrown, the Trustees resisted the effort and the case forDartmouth was argued by Daniel Webster before the US SupremeCourt in 1818. Chief Justice John Marshall wrote the historicdecision in favor of Dartmouth College, thereby paving the wayfor all American private institutions to conduct their affairsin accordance with their charters and without interference fromthe state. In a letter following the proceedings, Justice JosephStory explained “the vital importance to the well-being ofsociety and the security of private rights of the principles onwhich the decision rested. Unless I am very much mistaken, theseprinciples will be found to apply with an extensive reach to allthe great concerns of the people and will check any undueencroachments on civil rights which the passions or the populardoctrines of the day may stimulate our State Legislatures toadopt.” While the outcome was a tremendous victory forDartmouth, the turmoil of the four-year legal battle left theCollege in perilous financial condition and took its toll on thehealth of President Brown. His condition steadily deteriorating,the Trustees made provisions, in 1819, for “the seniorprofessors ... to perform all the public duties pertaining tothe Office of President of the College” in the event of his

1815



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disability. Francis Brown died in July 1820, at the age of 35.22

22. All the Dartmouth presidential portraits are in the college’s Hood Museum of Art in Hanford, New Hampshire.



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Upon graduating from Dartmouth College, Nathaniel Peabody Rogers embarked upon three years of reading for the law.

Elijah Demond graduated at Dartmouth College. He would become a minister.

Having served three terms in the US House of Representatives, Daniel Webster moved to Boston (over the following six years he would win several constitutional cases before the Supreme Court, such as Trustees of Dartmouth College v. Woodward, Gibbons v. Ogden, and Mcculloch v. Maryland).

1816

http://www.kouroo.info/kouroo/thumbnails/T/HDT.pdfhttp://www.kouroo.info/kouroo/explanation.pdfhttp://www.kouroo.info/kouroo/ActiveIndex.pdfThis portrait of Nathaniel Peabody Rogers by U.D. Tenney, presented to the state in 1876, hangs in the courthouse.

According to the manufacturer, Park Designs, these $78 desk lights allegedly mimic the design of the student lamp used by Elijah Demond as a student at Dartmouth College in 1816-1820. He was then, however, at the Andover Theological Seminary.


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April: An act was passed by the legislature of New Hampshire changing the name of Dartmouth College to Dartmouth University, and changing the board of trustees. The old board refusing to submit, the governor brought the subject before the legislature and an act was instituted, fining any one who should oppose the new board, which thus obtained possession of the college buildings and records. The matter would be carried to the supreme court, which would finally decide that the original charter of the college had been a contract, and its modification without the consent of the trustees unconstitutional (the winning lawyer in this famous case would be Daniel Webster, and the losing lawyer Salma Hale). In the end therefore the college would be reinstated in possession (Henry Thoreau would be found to have a copy of this 410-page case in his personal library).

WHAT I’M WRITING IS TRUE BUT NEVER MINDYOU CAN ALWAYS LIE TO YOURSELF

PERUSE THE 410 PAGES


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Joshua Coffin graduated from Dartmouth College. He would become a teacher.

When I was fourteen years old my first school-master, JoshuaCoffin, the able, eccentric historian of Newbury, brought withhim to our house a volume of Burns’ poems, from which he read,greatly to my delight. I begged him to leave the book with me;and set myself at once to the task of mastering the glossary ofthe Scottish dialect at its close. This was about the firstpoetry I had ever read, (with the exception of that of the Bible,of which I had been a close student,) and it had a lastinginfluence upon me I began to make rhymes myself, and to imaginestories and adventures. —Friend John Greenleaf Whittier

Let me, in closing, pay something of the debt I have owed fromboyhood, by expressing a sentiment in which I trust every sonof the ancient town will unite: Joshua Coffin, historian ofNewbury, teacher, scholar, and antiquarian, and one of theearliest advocates of slave emancipation. May his memory be keptgreen, to use the words of Judge Sewall, “so long as Plum islandkeeps its post and a sturgeon leaps in Merrimac River.” —FriendJohn Greenleaf Whittier

1817

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This is from a letter.


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March 10, Tuesday: Boston lawyer Daniel Webster argued successfully before the Supreme Court of the United States of America in Washington DC, defeating opposing attorney Salma Hale, that certain acts of the Massachusetts legislature need have no force or effect upon the Trustees of Dartmouth College (Henry Thoreau would be found to have a copy of this 410-page case in his personal library):

The Dartmouth College Case.23

ARGUMENT BEFORE THE SUPREME COURT OF THE UNITED STATES,AT WASHINGTON, ON THE 10TH OF MARCH, 1818.

[The action, The Trustees of Dartmouth College v.William H. Woodward, was commenced in the Court ofCommon Pleas, Grafton County, State of New Hampshire,February term, 1817. The declaration was trover for thebooks of record, original charter, common seal, andother corporate property of the College. The conversionwas alleged to have been made on the 7th day of October,1816. The proper pleas were filed, and by consent thecause was carried directly to the Superior Court of NewHampshire, by appeal, and entered at the May term, 1817.The general issue was pleaded by the defendant, andjoined by the plaintiffs. The facts in the case werethen agreed upon by the parties, and drawn up in theform of a special verdict, reciting the charter of theCollege and the acts of the legislature of the State,passed June and December, 1816, by which the saidcorporation of Dartmouth College was enlarged andimproved, and the said charter amended.The question made in the case was, whether those actsof the legislature were valid and binding upon thecorporation, without their acceptance or assent, andnot 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 thecourt in Rockingham County, where it was argued; and atthe November term of the same year, in Grafton County,the opinion of the court was delivered by Chief JusticeRichardson, in favor of the validity andconstitutionality of the acts of the legislature; andjudgment was accordingly entered for the defendant onthe special verdict.Thereupon a writ of error was sued out by the originalplaintiffs, to remove the cause to the Supreme Court of

1818

23. Edwin P. Whipple’s THE GREAT SPEECHES AND ORATIONS OF DANIEL WEBSTER WITH AN ESSAY ON DANIEL WEBSTER AS A MASTER OF ENGLISH STYLE (Boston: Little, Brown, 1879).

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the United States; where it was entered at the term ofthe court holden at Washington on the first Monday ofFebruary, 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) forthe defendant in error.At the term of the court holden in February, 1819, theopinion of the judges was delivered by Chief JusticeMarshall, declaring the acts of the legislatureunconstitutional and invalid, and reversing thejudgment of the State Court. The court, with theexception of Mr. Justice Duvall, were unanimous.The following was the argument of Mr. Webster for theplaintiffs in error.]

The general question is, whether the acts of the legislature ofNew Hampshire of the 27th of June, and of the 18th and 26th ofDecember, 1816, are valid and binding on the plaintiffs, withouttheir acceptance or assent.The charter of 1769 created and established a corporation, toconsist of twelve persons, and no more; to be called the“Trustees of Dartmouth College.” The preamble to the charterrecites, that it is granted on the application and request ofthe Rev. Eleazer Wheelock: That Dr. Wheelock, about the year1754, established a charity school, at his own expense, and onhis own estate and plantation: That for several years, throughthe assistance of well-disposed persons in America, granted athis solicitation, he had clothed, maintained, and educated anumber of native Indians, and employed them afterwards asmissionaries 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 solicitcontributions, in England, for the further extension andcarrying on of his undertaking; and that he had requested theEarl of Dartmouth, Baron Smith, Mr. Thornton, and othergentlemen, to receive such sums as might be contributed, inEngland, towards supporting his school, and to be trusteesthereof, for his charity; which these persons had agreed to do:That thereupon Dr. Wheelock had executed to them a deed of trust,in pursuance of such agreement between him and them, and, fordivers good reasons, had referred it to these persons todetermine the place in which the school should be finallyestablished: And, to enable them to form a proper decision onthis subject, had laid before them the several offers which hadbeen made to him by the several governments in America, in orderto induce him to settle and establish his school within thelimits of such governments for their own emolument, and theincrease of learning in their respective places, as well as forthe furtherance of his general original design: And inasmuch asa number of the proprietors of lands in New Hampshire, animatedby the example of the Governor himself and others, and in



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consideration that, without any impediment to its originaldesign, the school might be enlarged and improved, to promotelearning among the English, and to supply ministers to thepeople of that Province, had promised large tracts of land,provided the school should be established in that Province, thepersons before mentioned, having weighed the reasons in favorof the several places proposed, had given the preference to thisProvince, and these offers: That Dr. Wheelock thereforerepresented the necessity of a legal incorporation, and proposedthat certain gentlemen in America, whom he had already named andappointed in his will to be trustees of his charity after hisdecease, should compose the corporation. Upon this recital, andin consideration of the laudable original design of Dr.Wheelock, and willing that the best means of education beestablished in New Hampshire, for the benefit of the Province,the king granted the charter, by the advice of his ProvincialCouncil.The substance of the facts thus recited is, that Dr. Wheelockhad founded a charity, on funds owned and procured by himself;that he was at that time the sole dispenser and soleadministrator, as well as the legal owner, of these funds; thathe had made his will, devising this property in trust, tocontinue the existence and uses of the school, and appointedtrustees; that, in this state of things, he had been invited tofix his school permanently in New Hampshire, and to extend thedesign 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, heapplied for a charter, to be granted, not to whomsoever the kingor government of the Province should please, but to such personsas he named and appointed, namely, the persons whom he hadalready appointed to be the future trustees of his charity byhis will.The charter, or letters patent, then proceed to create such acorporation, and to appoint twelve persons to constitute it, bythe name of the “Trustees of Dartmouth College”; to haveperpetual existence as such corporation, and with power to holdand dispose of lands and goods, for the use of the college, withall the ordinary powers of corporations. They are in theirdiscretion to apply the funds and property of the college to thesupport of the president, tutors, ministers, and other officersof the college, and such missionaries and schoolmasters as theymay see fit to employ among the Indians. There are to be twelvetrustees for ever, and no more; and they are to have the rightof 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 appointa successor by his last will. All proper powers of government,superintendence, and visitation are vested in the trustees. Theyare to appoint and remove all officers at their discretion; tofix their salaries, and assign their duties; and to make allordinances, orders, and laws for the government of the students.



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To the end that the persons who had acted as depositaries of thecontributions in England, and who had also been contributorsthemselves, might be satisfied of the good use of theircontributions, the president was annually, or when required, totransmit to them an account of the progress of the institutionand the disbursements of its funds, so long as they shouldcontinue to act in that trust. These letters patent are to begood and effectual, in law, against the king, his heirs andsuccessors for ever, without further grant or confirmation; andthe trustees are to hold all and singular these privileges,advantages, liberties, and immunities to them and to theirsuccessors for ever.No funds are given to the college by this charter. A corporateexistence and capacity are given to the trustees, with theprivileges and immunities which have been mentioned, to enablethe founder and his associates the better to manage the fundswhich they themselves had contributed, and such others as theymight afterwards obtain.After the institution thus created and constituted had existed,uninterruptedly and usefully, nearly fifty years, thelegislature of New Hampshire passed the acts in question.The first act makes the twelve trustees under the charter, andnine other individuals, to be appointed by the Governor andCouncil, a corporation, by a new name; and to this newcorporation transfers all the property, rights, powers,liberties, and privileges of the old corporation; with furtherpower to establish new colleges and an institute, and to applyall or any part of the funds to these purposes; subject to thepower and control of a board of twenty-five overseers, to beappointed by the Governor and Council.The second act makes further provisions for executing theobjects of the first, and the last act authorizes the defendant,the treasurer of the plaintiffs, to retain and hold theirproperty, against their will.If these acts are valid, the old corporation is abolished, anda new one created. The first act does, in fact, if it can haveany effect, create a new corporation, and transfer to it all theproperty and franchises of the old. The two corporations are notthe same in anything which essentially belongs to the existenceof a corporation. They have different names, and differentpowers, rights, and duties. Their organization is whollydifferent. The powers of the corporation are not vested in thesame, or similar hands. In one, the trustees are twelve, and nomore. In the other, they are twenty-one. In one, the power isin a single board. In the other, it is divided between twoboards. Although the act professes to include the old trusteesin the new corporation, yet that was without their assent, andagainst their remonstrance; and no person can be compelled tobe a member of such a corporation against his will. It wasneither expected nor intended that they should be members of thenew corporation. The act itself treats the old corporation asat an end, and, going on the ground that all its functions have



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ceased, it provides for the first meeting and organization ofthe new corporation. It expressly provides, also, that the newcorporation shall have and hold all the property of the old; aprovision which would be quite unnecessary upon any otherground, than that the old corporation was dissolved. But if itcould be contended that the effect of these acts was not entirelyto abolish the old corporation, yet it is manifest that theyimpair and invade the rights, property, and powers of thetrustees under the charter, as a corporation, and the legalrights, privileges, and immunities which belong to them, asindividual members of the corporation.The twelve trustees were the sole legal owners of all theproperty acquired under the charter. By the acts, others areadmitted, against their will, to be joint owners. The twelveindividuals who are trustees were possessed of all thefranchises and immunities conferred by the charter. By the acts,nine other trustees and twenty-five overseers are admitted,against their will, to divide these franchises and immunitieswith them.If, either as a corporation or as individuals, they have anylegal rights, this forcible intrusion of others violates thoserights, as manifestly as an entire and complete ouster anddispossession. These acts alter the whole constitution of thecorporation. They affect the rights of the whole body as acorporation, and the rights of the individuals who compose it.They revoke corporate powers and franchises. They alienate andtransfer the property of the college to others. By the charter,the trustees had a right to fill vacancies in their own number.This is now taken away. They were to consist of twelve, and, byexpress provision, of no more. This is altered. They and theirsuccessors, appointed by themselves, were for ever to hold theproperty. The legislature has found successors for them, beforetheir seats are vacant. The powers and privileges which thetwelve were to exercise exclusively, are now to be exercised byothers. By one of the acts, they are subjected to heavy penaltiesif they exercise their offices, or any of those powers andprivileges granted them by charter, and which they had exercisedfor fifty years. They are to be punished for not accepting thenew grant and taking its benefits. This, it must be confessed,is rather a summary mode of settling a question ofconstitutional right. Not only are new trustees forced into thecorporation, but new trusts and uses are created. The collegeis turned into a university. Power is given to create newcolleges, and, to authorize any diversion of the funds which maybe agreeable to the new boards, sufficient latitude is given bythe undefined power of establishing an institute. To these newcolleges, and this institute, the funds contributed by thefounder, Dr. Wheelock, and by the original donors, the Earl ofDartmouth and others, are to be applied, in plain and manifestdisregard of the uses to which they were given.The president, one of the old trustees, had a right to hisoffice, salary, and emoluments, subject to the twelve trustees



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alone. His title to these is now changed, and he is madeaccountable to new masters. So also all the professors andtutors. If the legislature can at pleasure make thesealterations and changes in the rights and privileges of theplaintiffs, it may, with equal propriety, abolish these rightsand privileges altogether. The same power which can do any partof this work can accomplish the whole. And, indeed, the argumenton which these acts have been hitherto defended goes altogetheron the ground, that this is such a corporation as the legislaturemay abolish at pleasure; and that its members have no rights,liberties, franchises, property, or privileges, which thelegislature may not revoke, annul, alienate, or transfer toothers, whenever it sees fit.It will be contended by the plaintiffs, that these acts are notvalid and binding on them without their assent,—

1. Because they are against common right, and the Constitutionof New Hampshire.

2. Because they are repugnant to the Constitution of the UnitedStates.

I am aware of the limits which bound the jurisdiction of thecourt in this case, and that on this record nothing can bedecided but the single question, whether these acts arerepugnant to the Constitution of the United States. Yet it mayassist in forming an opinion of their true nature and characterto compare them with those fundamental principles introducedinto the State governments for the purpose of limiting theexercise of the legislative power, and which the Constitutionof New Hampshire expresses with great fulness and accuracy.It is not too much to assert, that the legislature of NewHampshire would not have been competent to pass the acts inquestion, and to make them binding on the plaintiffs withouttheir assent, even if there had been, in the Constitution of NewHampshire, or of the United States, no special restriction ontheir power, because these acts are not the exercise of a powerproperly legislative.24 Their effect and object are to take away,from one, rights, property, and franchises, and to grant themto another. This is not the exercise of a legislative power. Tojustify the taking away of vested rights there must be aforfeiture, to adjudge upon and declare which is the properprovince of the judiciary. Attainder and confiscation are actsof sovereign power, not acts of legislation. The BritishParliament, among other unlimited powers, claims that ofaltering and vacating charters; not as an act of ordinarylegislation, but of uncontrolled authority. It is theoreticallyomnipotent. Yet, in modern times, it has very rarely attemptedthe exercise of this power. In a celebrated instance, those whoasserted this power in Parliament vindicated its exercise onlyin a case in which it could be shown, 1st. That the charter inquestion was a charter of political power; 2d. That there was agreat and overruling state necessity, justifying the violation

24. Calder et ux. v. Bull, 3 Dallas, 386.



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of the charter; 3d. That the charter had been abused and justlyforfeited.25 The bill affecting this charter did not pass. Itshistory is well known. The act which afterwards did pass, passedwith the assent of the corporation. Even in the worst times,this power of Parliament to repeal and rescind charters has notoften been exercised. The illegal proceedings in the reign ofCharles the Second were under color of law. Judgments offorfeiture were obtained in the courts. Such was the case of thequo warranto against the city of London, and the proceedings bywhich the charter of Massachusetts was vacated.The legislature of New Hampshire has no more power over therights of the plaintiffs than existed somewhere, in somedepartment of government, before the Revolution. The BritishParliament could not have annulled or revoked this grant as anact of ordinary legislation. If it had done it at all, it couldonly have been in virtue of that sovereign power, calledomnipotent, which does not belong to any legislature in theUnited States. The legislature of New Hampshire has the samepower over this charter which belonged to the king who grantedit, and no more. By the law of England, the power to createcorporations is a part of the royal prerogative.26 By theRevolution, this power may be considered as having devolved onthe legislature of the State, and it has accordingly beenexercised by the legislature. But the king cannot abolish acorporation, or new-model it, or alter its powers, without itsassent. This is the acknowledged and well-known doctrine of thecommon law. “Whatever might have been the notion in formertimes,” says Lord Mansfield, “it is most certain now that thecorporations of the universities are lay corporations; and thatthe crown cannot take away from them any rights that have beenformerly subsisting in them under old charters or prescriptiveusage.”27 After forfeiture duly found, the king may re-grant thefranchises; but a grant of franchises already granted, and ofwhich no forfeiture has been found, is void.Corporate franchises can only be forfeited by trial andjudgment.28 In case of a new charter or grant to an existingcorporation, it may accept or reject it as it pleases.29 It mayaccept such part of the grant as it chooses, and reject therest.30 In the very nature of things, a charter cannot be forcedupon any body. No one can be compelled to accept a grant; andwithout acceptance the grant is necessarily void.31 It cannot bepretended that the legislature, as successor to the king in thispart of his prerogative, has any power to revoke, vacate, oralter this charter. If, therefore, the legislature has not thispower by any specific grant contained in the Constitution; nor

25. Annual Register, 1784, p. 160; Parl. Reg. 1783; Mr. Burke’s Speech on Mr. Fox’s East India Bill, Burke’s Works, Vol. II. pp. 414, 417, 467, 468, 486.26. 1 Black. 472, 473.27. 3 Burr. 1656.28. King v. Pasmore, 3 Term Rep. 244.29. King v. Vice-Chancellor of Cambridge, 3 Burr. 1656; 3 Term Rep. 240,—Lord Kenyon.30. 3 Burr. 1661, and King v. Pasmore, ubi supra.31. Ellis v. Marshall, 2 Mass. Rep. 277; 1 Kyd on Corporations, 65, 66.



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as included in its ordinary legislative powers; nor by reasonof its succession to the prerogatives of the crown in thisparticular, on what ground would the authority to pass theseacts rest, even if there were no prohibitory clauses in theConstitution and the Bill of Rights?But there are prohibitions in the Constitution and Bill ofRights of New Hampshire, introduced for the purpose of limitingthe legislative power and protecting the rights and property ofthe citizens. One prohibition is, “that no person shall bedeprived of his property, immunities, or privileges, put out ofthe protection of the law, or deprived of his life, liberty, orestate, but by judgment of his peers or the law of the land.”In the opinion, however, which was given in the court below, itis denied that the trustees under the charter had any property,immunity, liberty, or privilege in this corporation, within themeaning of this prohibition in the Bill of Rights. It is saidthat it is a public corporation and public property; that thetrustees have no greater interest in it than any otherindividuals; that it is not private property, which they cansell or transmit to their heirs, and that therefore they haveno interest in it; that their office is a public trust, likethat of the Governor or a judge, and that they have no moreconcern in the property of the college than the Governor in theproperty of the State, or than the judges in the fines whichthey impose on the culprits at their bar; that it is nothing tothem whether their powers shall be extended or lessened, anymore than it is to their honors whether their jurisdiction shallbe enlarged or diminished. It is necessary, therefore, toinquire into the true nature and character of the corporationwhich was created by the charter of 1769.There are divers sorts of corporations; and it may be safelyadmitted that the legislature has more power over some thanothers.32 Some corporations are for government and politicalarrangement; such, for example, as cities, counties, and townsin New England. These may be changed and modified as publicconvenience may require, due regard being always had to therights of property. Of such corporations, all who live withinthe limits are of course obliged to be members, and to submitto the duties which the law imposes on them as such. Other civilcorporations are for the advancement of trade and business, suchas banks, insurance companies, and the like. These are created,not by general law, but usually by grant. Their constitution isspecial. It is such as the legislature sees fit to give, and thegrantees to accept.The corporation in question is not a civil, although it is a laycorporation. It is an eleemosynary corporation. It is a privatecharity, originally founded and endowed by an individual, witha charter obtained for it at his request, for the betteradministration of his charity. “The eleemosynary sort ofcorporations are such as are constituted for the perpetualdistributions of the free alms or bounty of the founder of them,

32. 1 Wooddeson, 474; 1 Black. 467.



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to such persons as he has directed. Of this are all hospitalsfor the maintenance of the poor, sick, and impotent; and allcolleges both in our universities and out of them.”33

Eleemosynary corporations are for the management of privateproperty, according to the will of the donors. They are privatecorporations. A college is as much a private corporation as ahospital; especially a college founded, as this was, by privatebounty. A college is a charity. “The establishment of learning,”says Lord Hardwicke, “is a charity, and so considered in thestatute of Elizabeth. A devise to a college, for their benefit,is a laudable charity, and deserves encouragement.”34

The legal signification of a charity is derived chiefly from thestatute 43 Eliz. ch. 4. “Those purposes,” says Sir WilliamGrant, “are considered charitable which that statuteenumerates.”35 Colleges are enumerated as charities in thatstatute. The government, in these cases, lends its aid toperpetuate the beneficent intention of the donor, by granting acharter under which his private charity shall continue to bedispensed after his death. This is done either by incorporatingthe objects of the charity, as, for instance, the scholars in acollege or the poor in a hospital, or by incorporating those whoare to be governors or trustees of the charity.36 In cases ofthe first sort, the founder is, by the common law, visitor. Inearly times it became a maxim, that he who gave the propertymight regulate it in future. “Cujus est dare, ejus estdisponere.” This right of visitation descended from the founderto his heir as a right of property, and precisely as his otherproperty went to his heir; and in default of heirs it went tothe king, as all other property goes to the king for the wantof heirs. The right of visitation arises from the property. Itgrows out of the endowment. The founder may, if he please, partwith it at the time when he establishes the charity, and mayvest it in others. Therefore, if he chooses that governors,trustees, or overseers should be appointed in the charter, hemay cause it to be done, and his power of visitation may betransferred to them, instead of descending to his heirs. Thepersons thus assigned or appointed by the founder will bevisitors, with all the powers of the founder, in exclusion ofhis heir.37 The right of visitation, then, accrues to them, asa matter of property, by the gift, transfer, or appointment ofthe founder. This is a private right, which they can assert inall legal modes, and in which they have the same protection ofthe law as in all other rights. As visitors they may make rules,ordinances, and statutes, and alter and repeal them, as far aspermitted so to do by the charter.38 Although the charterproceeds from the crown or the government, it is considered asthe will of the donor. It is obtained at his request. He imposes

33. 1 Black. 471.34. Ves. 537.35. 9 Ves. Jun. 405.36. 1 Wood. 474.37. 1 Black. 471.38. 2 Term Rep. 350, 351.



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it as the rule which is to prevail in the dispensation of hisbounty in all future times. The king or government which grantsthe charter is not thereby the founder, but he who furnishes thefunds. The gift of the revenues is the foundation.39

The leading case on this subject is Phillips v. Bury.40 This wasan ejectment brought to recover the rectory-house, &c. of ExeterCollege in Oxford. The question was whether the plaintiff ordefendant was legal rector. Exeter College was founded by anindividual, and incorporated by a charter granted by QueenElizabeth. The controversy turned upon the power of the visitor,and, in the discussion of the cause, the nature of collegecharters and corporations was very fully considered. Lord Holt’sjudgment, copied from his own manuscript, is found in 2 TermReports. 346. The following is an extract:—

“That we may the better apprehend the nature of avisitor, we are to consider that there are in law twosorts of corporations aggregate; such as are for publicgovernment, and such as are for private charity. Thosethat are for the public government of a town, city,mystery, or the like, being for public advantage, areto be governed according to the laws of the land. Ifthey make any particular private laws andconstitutions, the validity and justice of them isexaminable in the king’s courts. Of these there are noparticular private founders, and consequently noparticular visitor; there are no patrons of these;therefore, if no provision be in the charter how thesuccession shall continue, the law supplieth the defectof that constitution, and saith it shall be by election;as mayor, aldermen, common council, and the like. Butprivate and particular corporations for charity,founded and endowed by private persons, are subject tothe private government of those who erect them; andtherefore, if there be no visitor appointed by thefounder, the law appoints the founder and his heirs tobe visitors, who are to act and proceed according to theparticular laws and constitutions assigned them by thefounder. It is now admitted on all hands that thefounder is patron, and, as founder, is visitor, if noparticular visitor be assigned; so that patronage andvisitation are necessary consequents one upon another.For this visitatorial power was not introduced by anycanons or constitutions ecclesiastical (as was said bya learned gentleman whom I have in my eye, in hisargument of this case); it is an appointment of law. Itariseth from the property which the founder had in thelands assigned to support the charity; and as he is theauthor of the charity, the law gives him and his heirsa visitatorial power, that is, an authority to inspectthe actions and regulate the behavior of the members

39. 1 Black. 480.40. 1 Lord Raymond, 5; Comb. 265; Holt, 715; 1 Shower. 360; 4 Mod. 106; Skinn. 447.



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that partake of the charity. For it is fit the membersthat are endowed, and that have the charity bestowedupon them, should not be left to themselves, but pursuethe intent and design of him that bestowed it upon them.Now, indeed, where the poor, or those that receive thecharity, are not incorporated, but there are certaintrustees who dispose of the charity, there is novisitor, because the interest of the revenue is notvested in the poor that have the benefit of the charity,but they are subject to the orders and directions of thetrustees. But where they who are to enjoy the benefitof the charity are incorporated, there to prevent allperverting of the charity, or to compose differencesthat may happen among them, there is by law avisitatorial power; and it being a creature of thefounder’s own, it is reason that he and his heirs shouldhave that power, unless by the founder it is vested insome other. Now there is no manner of difference betweena college and a hospital, except only in degree. Ahospital is for those that are poor, and mean, and low,and sickly; a college is for another sort of indigentpersons; but it hath another intent, to study in andbreed up persons in the world that have no otherwise tolive; but still it is as much within the reasons ashospitals. And if in a hospital the master and poor areincorporated, it is a college having a common seal toact by, although it hath not the name of a college(which always supposeth a corporation), because it isof an inferior degree; and in the one case and in theother there must be a visitor, either the founder andhis heirs or one appointed by him; and both areeleemosynary.”

Lord Holt concludes his whole argument by again repeating, thatthat college was a private corporation, and that the founder hada right to appoint a visitor, and to give him such power as hesaw fit.41

The learned Bishop Stillingfleet’s argument in the same cause,as a member of the House of Lords, when it was there heard,exhibits very clearly the nature of colleges and similarcorporations. It is to the following effect: “That this absoluteand conclusive power of visitors is no more than the law hathappointed in other cases, upon commissions of charitable uses:that the common law, and not any ecclesiastical canons, do placethe power of visitation in the founder and his heirs, unless hesettle it upon others: that although corporations for publicgovernment be subject to the courts of Westminster Hall, whichhave no particular or special visitors, yet corporations forcharity, founded and endowed by private persons, are subject tothe rule and government of those that erect them; but where thepersons to whom the charity is given are not incorporated, thereis no such visitatorial power, because the interest of the

41. 1 Lord Raymond, 9.



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revenue is not invested in them; but where they are, the rightof visitation ariseth from the foundation, and the founder mayconvey it to whom and in what manner he pleases; and the visitoracts as founder, and by the same authority which he had, andconsequently is no more accountable than he had been: that theking by his charter can make a society to be incorporated so asto have the rights belonging to persons, as to legal capacities:that colleges, although founded by private persons, are yetincorporated by the king’s charter; but although the kings bytheir charter made the colleges to be such in law, that is, tobe legal corporations, yet they left to the particular foundersauthority to appoint what statutes they thought fit for theregulation of them. And not only the statutes, but theappointment of visitors, was left to them, and the manner ofgovernment, and the several conditions on which any persons wereto be made or continue partakers of their bounty.”42

These opinions received the sanction of the House of Lords, andthey seem to be settled and undoubted law. Where there is acharter, vesting proper powers in trustees, or governors, theyare visitors; and there is no control in any body else; exceptonly that the courts of equity or of law will interfere so faras to preserve the revenues and prevent the perversion of thefunds, and to keep the visitors within their prescribed bounds.“If there be a charter with proper powers, the charity must beregulated in the manner prescribed by the charter. There is noground for the controlling interposition of the courts ofchancery. The interposition of the courts, therefore, in thoseinstances in which the charities were founded on charters or byact of Parliament, and a visitor or governor and trusteesappointed, must be referred to the general jurisdiction of thecourts in all cases in which a trust conferred appears to havebeen abused, and not to an original right to direct themanagement of the charity, or the conduct of the governors ortrustees.”43 “The original of all visitatorial power is theproperty of the donor, and the power every one has to dispose,direct, and regulate his own property; like the case ofpatronage; cujus est dare, &c. Therefore, if either the crownor the subject creates an eleemosynary foundation, and vests thecharity in the persons who are to receive the benefit of it,since a contest might arise about the government of it, the lawallows the founder or his heirs, or the person speciallyappointed by him to be visitor, to determine concerning his owncreature. If the charity is not vested in the persons who areto partake, but in trustees for their benefit, no visitor canarise by implication, but the trustees have that power.”44

“There is nothing better established,” says Lord CommissionerEyre, “than that this court does not entertain a generaljurisdiction, or regulate and control charities established bycharter. There the establishment is fixed and determined; andthe court has no power to vary it. If the governors established

42. 1 Burn’s Eccles. Law, 443, Appendix No. 3]43. 2 Forb. 205, 206.44. Green v. Rutherforth, 1 Ves. 472, per Lord Hardwicke.



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for the regulation of it are not those who have the managementof the revenue, this court has no jurisdiction, and if it isever so much abused, as far as it respects the jurisdiction ofthis court it is without remedy; but if those established asgovernors have also the management of the revenues, this courtdoes assume a jurisdiction of necessity, so far as they are tobe considered as trustees of the revenue.”45

“The foundations of colleges,” says Lord Mansfield, “are to beconsidered in two views; namely, as they are corporations andas they are eleemosynary. As eleemosynary, they are thecreatures of the founder; he may delegate his power, eithergenerally or specially; he may prescribe particular modes andmanners, as to the exercise of part of it. If he makes a generalvisitor (as by the general words visitator sit), the person soconstituted has all incidental power; but he may be restrainedas to particular instances. The founder may appoint a specialvisitor for a particular purpose, and no further. The foundermay make a general visitor; and yet appoint an inferiorparticular power, to be executed without going to the visitorin the first instance.”46 And even if the king be founder, if hegrant a charter, incorporating trustees and governors, they arevisitors, and the king cannot visit.47 A subsequent donation, oringrafted fellowship, falls under the same general visitatorialpower, if not otherwise specially provided.48

In New England, and perhaps throughout the United States,eleemosynary corporations have been generally established in thelatter mode; that is, by incorporating governors, or trustees,and vesting in them the right of visitation. Small variationsmay have been in some instances adopted; as in the case ofHarvard College, where some power of inspection is given to theoverseers, but not, strictly speaking, a visitatorial power,which still belongs, it is apprehended, to the fellows ormembers of the corporation. In general, there are many donors.A charter is obtained, comprising them all, or some of them, andsuch others as they choose to include, with the right ofappointing successors. They are thus the visitors of their owncharity, and appoint others, such as they may see fit, toexercise the same office in time to come. All such corporationsare private. The case before the court is clearly that of aneleemosynary corporation. It is, in the strictest legal sense,a private charity. In King v. St. Catherine’s Hall,49 thatcollege is called a private eleemosynary lay corporation. It wasendowed by a private founder, and incorporated by letterspatent. And in the same manner was Dartmouth College founded andincorporated. Dr. Wheelock is declared by the charter to be itsfounder. It was established by him, on funds contributed andcollected by himself.As such founder, he had a right of visitation, which he assigned

45. Attorney-General v. Foundling Hospital, 2 Ves. Jun. 47. See also 2 Kyd on Corporations, 195; Cooper’s Equity Pleading, 292.46. St. John’s College, Cambridge, v. Todington, 1 Burr. 200.47. Attorney-General v. Middleton, 2 Ves. 328.48. Green v. Rutherforth, ubi supra; St. John’s College v. Todington, ubi supra.49. 4 Term Rep. 233.



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to the trustees, and they received it by his consent andappointment, and held it under the charter.50 He appointed thesetrustees visitors, and in that respect to take place of his heir;as he might have appointed devisees, to take his estate insteadof his heir. Little, probably, did he think, at that time, thatthe legislature would ever take away this property and theseprivileges, and give them to others. Little did he suppose thatthis charter secured to him and his successors no legal rights.Little did the other donors think so. If they had, the collegewould have been, what the university is now, a thing upon paper,existing only in name.The numerous academies in New England have been establishedsubstantially in the same manner. They hold their property bythe same tenure, and no other. Nor has Harvard College any surertitle than Dartmouth College. It may to-day have more friends;but to-morrow it may have more enemies. Its legal rights are thesame. So also of Yale College; and, indeed, of all the others.When the legislature gives to these institutions, it may anddoes accompany its grants with such conditions as it pleases.The grant of lands by the legislature of New Hampshire toDartmouth College, in 1789, was accompanied with variousconditions. When donations are made, by the legislature orothers, to a charity already existing, without any condition,or the specification of any new use, the donation follows thenature of the charity. Hence the doctrine, that all eleemosynarycorporations are private bodies. They are founded by privatepersons, and on private property. The public cannot becharitable in these institutions. It is not the money of thepublic, but of private persons, which is dispensed. It may bepublic, that is general, in its uses and advantages; and theState may very laudably add contributions of its own to thefunds; but it is still private in the tenure of the property,and in the right of administering the funds.If the doctrine laid down by Lord Holt, and the House of Lords,in Phillips v. Bury, and recognized and established in all theother cases, be correct, the property of this college wasprivate property; it was vested in the trustees by the charter,and to be administered by them, according to the will of thefounder and donors, as expressed in the charter. They were alsovisitors of the charity, in the most ample sense. They had,therefore, as they contend, privileges, property, andimmunities, within the true meaning of the Bill of Rights. Theyhad rights, and still have them, which they can assert againstthe legislature, as well as against other wrong-doers. It makesno difference, that the estate is holden for certain trusts. Thelegal estate is still theirs. They have a right in the property,and they have a right of visiting and superintending the trust;and this is an object of legal protection, as much as any otherright. The charter declares that the powers conferred on thetrustees are “privileges, advantages, liberties, andimmunities”; and that they shall be for ever holden by them and

50. Black., ubi supra.



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their successors. The New Hampshire Bill of Rights declares thatno one shall be deprived of his “property, privileges, orimmunities,” but by judgment of his peers, or the law of theland. The argument on the other side is, that, although theseterms may mean something in the Bill of Rights, they mean nothingin this charter. But they are terms of legal signification, andvery properly used in the charter. They are equivalent withfranchises. Blackstone says that franchise and liberty are usedas synonymous terms. And after enumerating other liberties andfranchises, he says: “It is likewise a franchise for a numberof persons to be incorporated and subsist as a body politic,with a power to maintain perpetual succession and do othercorporate acts; and each individual member of such a corporationis also said to have a franchise or freedom.”51

Liberties is the term used in Magna Charta as includingfranchises, privileges, immunities, and all the rights whichbelong to that class. Professor Sullivan says, the termsignifies the “privileges that some of the subjects, whethersingle persons or bodies corporate, have above others by thelawful grant of the king; as the chattels of felons or outlaws,and the lands and privileges of corporations.”52

The privilege, then, of being a member of a corporation, undera lawful grant, and of exercising the rights and powers of suchmember, is such a privilege, liberty, or franchise, as has beenthe object of legal protection, and the subject of a legalinterest, from the time of Magna Charta to the present moment.The plaintiffs have such an interest in this corporation,individually, as they could assert and maintain in a court oflaw, not as agents of the public, but in their own right. Eachtrustee has a franchise, and if he be disturbed in the enjoymentof it, he would have redress, on appealing to the law, aspromptly as for any other injury. If the other trustees shouldconspire against any one of them to prevent his equal right andvoice in the appointment of a president or professor, or in thepassing of any statute or ordinance of the college, he would beentitled to his action, for depriving him of his franchise. Itmakes no difference, that this property is to be holden andadministered, and these franchises exercised, for the purposeof diffusing learning. No principle and no case establishes anysuch distinction. The public may be benefited by the use of thisproperty. But this does not change the nature of the property,or the rights of the owners. The object of the charter may bepublic good; so it is in all other corporations; and this wouldas well justify the resumption or violation of the grant in anyother case as in this. In the case of an advowson, the use ispublic, and the right cannot be turned to any private benefitor emolument. It is nevertheless a legal private right, and theproperty of the owner, as emphatically as his freehold. Therights and privileges of trustees, visitors, or governors ofincorporated colleges, stand on the same foundation. They areso considered, both by Lord Holt and Lord Hardwicke.53

51. 2 Black. Com. 37.52. Sull. 41st Lect.

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