Arboretum: Dry Leaves and Discontent

"Are considerations of 'face' predominant, or other reason not yet revealed? It would require a long inquiry to probe the motives leading to the decision to 'steamroller' the plan without a court ruling,"

It is not often that such innuendos are tossed at the President and Fellows of Harvard college. It is even rarer when the authors of such remark include a former member of an Overseers Visiting Committee and a former member of the Corporation. Yet, these two, John S. Ames '01 and Grenville Clark '03 are two out of some six hundred persons who feel increasingly bitter toward the Corporation. The University is seldom publicly charged with breach of trust, but, when it is, one can be sure there is bad blood involved. The storm over the Arnold Arboretum is no exception.

An arboretum is not an intrinsically exciting affair, at least for laymen. It usually consists of a plot full of different kinds of trees, shrubs, plants, an herbarium for storage of pressed leaves, and a library filled with taxanomical tomes and like readings. The Arnold garden's distinction lies in its being one of the world's best. Begun in 1872 with money provided by a New Bedford Merchant, land supplied by Harvard, and genius provided by the first Arnold Professor, Charles Sprague Sargent, it has acquired one of the most varied and complete collections of plants in the world, and equipment of equal quality.

Devoted Followers

It is not surprising, considering the Arboretum's prestige and its almost fanatically loyal following, that any effort to change the institution would stir up trouble. At first, however, there was none. In 1945, at Provost Buck's request, Irving W. Bailey, Professor of Plant Anatomy, produced a report on Botany and its Applications at Harvard reviewing the University's sprawling resources in the field. At that time work was split up between nine institutions, one as distant as Cuba and all going their separate ways. Harvard, as Professor Bailey put it, "has acquired too many nests to brood over, and certain of the eggs are beginning to decompose rather than hatch."

His physic was a stiff dose of merger. The bailey Plan was to lump together as many of the book and speciment collections as possible, selling off duplicates. It also looked to centralization, to splitting the field into two Areas, each with a chairman, presided over by a Biological Council. The Arboretum fell on both sides of the dividing line: the living collections were to go into one Area, and all research dependent on preserved matter would go into the other. The herbarium and library were slated to be moved to Cambridge.

The plan was well received all around, especially by all the Biologists. The Arboretum staff at first approved. In January 1946, the Corporation endorsed the Plan and begun to work out the details. The courts were brought in at one point--the University asked for and received a decree relieving it from the Botanical Gardens trust which was no longer practicable--but no other parts of the Plan were adjudicated. No one had complained, and there was no reason for it.

The Fight Begins

It was not until 1949, in fact, that dissent arose. At first it was the lone voice of Professor Oakes Ames, once a director of the Arboretum, a voice somewhat obscured in the stately federal procedure of the Board of Overseers. He wrote Walte Edmonds, Committee on Biological sciences, expressing doubt over the Plan's legality. Soon the vistors to the Arboretum began to question it, too. The Overseers referred the question to the Edmonds Committee, which in turn requested the services of an independent lawyer. The Corporation retained Alfred P. Lowell, the first of the many legal guns that have reported on this issue. He upheld the scheme on almost every point.

By now, the Visiting Committee was considerably upset. Fourteen members retained another lawyer, J. W. Farley, and requested delay in putting the Plan into effect until their counsel could report. He reached an opposite result. Meanwhile, Grenville Clark, who had just resigned from the Corporation, called in still a third, Robert G. Dodge. His report agreed with Farley's Both reports reached the President and Fellows, and they responded by asking Ropes, Gray, Best, Collidge, and Rugg for a fourth, report. Oscar M. Shaw for that firm penned a vigorous endorsement, though not wholly without reservation as to details.

The law in such cases is that the donor's intentions, s expressed in the original agreement, is binding. The conflict here revolved mainly around the relation that the Arnold trustees intended between Harvard and the Arboretum. The gift might be considered an outright grant to the University with strings, attached, like a gift to Harvard for scholarship funds. This was, to oversimplify, a major line taken by Ropes-Gray. In such a case, the University is free to use the funds for whatever purpose it feels will further its purpose. The report added, however, that use of the Arboretum must also be justified as in the garden's best interests, and construed those interests broadly. On the other hand, the gift in question might be an express trust, in which case the property would belong to the Corporation, not as owner, but as trustee charged with looking solely to the trust's interests. In this case, diverting funds for University purposes or an administrative mingling of the trust with other trusts or departments of Harvard would be an abuse of the trustee's discretion. This was again over-simplifying--the Farley-Dodge argument. Harvard, they maintained, was acting on a loyalty adverse to the Arboretum's interests.

Harvard Avoids Test

In the forward of the Dodge Report, the author said that the Corporation should apply to the courts for instructions. The one aspect "Which has caused the most indignation," Grenville Clark stated, "is the Corporation's efforts to prevent any judicial test of the legal issues." Courts will grant instructions, however, only to trustees who have serious doubts as to their duty, and the Corporation has no doubts. The Arboretum forces argue that it is the nature of the dispute, and not what the trustee thinks, that courts refers to when the trustee thinks, that courts refers to when they speak of doubt. But the Corporation has declared that the current question "is precisely the kind of question which it is our duty to decide."

Action under the Plan was still suspended. Counsel for the dissenters met with the Overseers Coordinating Committee, now chaired by Laird Bell '04, lawyer in his own right, and later with President Conant and several members of the Corporation. They submitted a proposed vote in line with their views. Toward the end of 1952 the Bell Committee issued a policy statement that favored dropping the Bailey Plan regarding the Arboretum, but also in favor, if the Corporation should consider it in the Arboretum's interest, of moving the herbarium and library to the new fire-proof building in Cambridge. This the Overseers approved and sent on. Another scientific inquiry was launched the result was affirmative and the President and Fellows proceded to the vote of January 19, 1953.

The battle may still be as fierce as ever, but the fact remains that the Corporation granted a concession in that vote. All the points save one asked by counsel Dodge were granted. The Arnold Professor was secure in his control of Arboretum affairs and his direct responsibility to the Corporation. As an administrator he might be fired on grounds less rigorous than "gross misconduct", but his tenure as a professor was guaranteed by his appointment to a Dendrology chair. There were clear assurances that Arboretum funds would be devoted primarily to Arboretum assets, and those assets, and those assets would be segregated and identified wherever they were. The Bailey Plan would not be applied, and it was formally conceded that the Arboretum is an express trust.

One point the Corporation would not concede: point 10 of its vote decreed the removal of most of the books and specimens to Cambridge, declaring that the step "is in the best interests of the Arboretum and will promote the purposes of its endowment."

"Form, not substance," was the reaction of the Arboretum group, and their tempers were not sweetened when the Corporation ordered the new building begun. Wishing to retain the gardens as the unit Sargent had built, they could brook so such withdrawals, which they said was "milking" the Arboretum and turning it into a "park."

Charitable trusts cannot be sued by just anyone; unlike the usual trust, the beneficiary is the public and it falls on the Attorney General to bring suit. He may sue on his own initiative or give private citizens the use of his name; in either case, it is a discretionary matter. Nine Association members and Godfrey Lowell Cabot '88 prepared to ask Attorney General Fingold for permission to hall Harvard into Court. Support of this suit, in fact, was the immediate point of the Association. Numbering roughly 600, its members reflect twenty-eight states, D. C. and Canada. Officers of the two national garden club groups are on its lists as well as other famous botanists Many a good old Boston name is represented, from a number of Cabots to professor Samuel Eliot Morlson. Women are predominant.

When counsel applied for use of Fingold's name, Assistant Attorney General Harris J. Booras was given the job of investigating. Twice he spoke with both sides, and he made trips to the Arboretum land the new herbarium in Cambridge. He also received bales of letters, one of which--from Oscar M. Shaw of Ropes, Gray--assumed major importance. This letter, which according to the petitioners "teems with bad law, unjustifiable statements of alleged fact and misleading advice." was more or less followed in the memo handed down by Booras later, the memo which concluded 'by direction of the Attorney General, the application is denied."

Appeal to Court

The Association, unconvinced, had no choice but to appeal to the courts. They could not sue Harvard themselves, nor force the Attorney General to do so; yet their strongest feeling has been that some judicial test is necessary. The case of John S. Ames et al.V.Attorney General, therefore , is for a writ of Mandamus to compel Fingold to rehear their application according to "a proper appreciation of his own duty and the rules of law applicable to the questions involved "Meanwhile there were still quiet efforts to smooth out affairs. Two Association directors had been meeting with Harvard officials, and once a nonlegal delegation discussed the case with President Pusey. The result of these goings on was a letter from the President to members of the Association deploring the ill-will, outlining the concessions he and the Fellows had made, and pleading for confidence. The reaction was as cool as the air conditioning in the new herbarium. The two directors, however, resigned from the Association at this failure.

Tricky Legal Point

It is useless to try explaining the legal issues in detail. The briefs take up some 200 pages, and there is little fat in them. the major argument between petitioners and the Attorney General are on the question of his discretion. His view precludes any review of his decision at ll while the petitioners think otherwise, at least so far as a writ of Mandamus is concerned. The Attorney General considers it his duty to look into the merits of the case before lending his name, while the petitioners would limit him to deciding whether the case was doubtful and whether the applications were made in good faith.

The petitioners must also prove their case against Harvard to defeat the Attorney General. The gap between the opinions is narrower than at the dispute's earlier stages; with the concession of January 1953, there is less to argue about. The primary differences, however, still seem to stem from different conceptions of what, exactly, the Arboretum is. The arguments in Harvard's favor seem to view the trust as a fund with a set of purposes attached, while the petitioners focus on what is going to happen to those 265 acres in Jamaica Plain. The Association sees only the collapse of an identifiable unit, the disappearance of a unique institution among the folds of the Harvard empire. It is on his point that the question of whom is benefit ted seems to turn. And the petitioners must impress the court with their view, for without it, they cannot even begin to make out a case of improper motive against the Corporation.

The case came up for a hearing two weeks ago before Chief Justice Qua and Justices Williams, Lummus, and Couhihan. Both sides spoke at length, but the Court for the most part interrupted only Mr. Dodge. The questions referred to the writ of Mandamus, and the merits of the Arboretum dispute itself were not stressed. At one point the Chief Justice commented, "Petitioners position appears to be a novel one.