I am aware of the limits which bound the jurisdiction of the court in
this case, and that on this record nothing can be decided but the
single question, whether these acts are repugnant to the Constitution
of the United States. Yet it may assist in forming an opinion of their
true nature and character to compare them with those fundamental
principles introduced into the State governments for the purpose of
limiting the exercise of the legislative power, and which the
Constitution of New Hampshire expresses with great fulness and accuracy.
It is not too much to assert, that the legislature of New Hampshire
would not have been competent to pass the acts in question, and to make
them binding on the plaintiffs without their assent, even if there had
been, in the Constitution of New Hampshire, or of the United States, no
special restriction on their power, because these acts are not the
exercise of a power properly legislative. Their effect and object are
to take away, from one, rights, property, and franchises, and to grant
them to another. This is not the exercise of a legislative power. To
justify the taking away of vested rights there must be a forfeiture, to
adjudge upon and declare which is the proper province of the judiciary.
Attainder and confiscation are acts of sovereign power, not acts of
legislation. The British Parliament, among other unlimited powers,
claims that of altering and vacating charters; not as an act of
ordinary legislation, but of uncontrolled authority. It is
theoretically omnipotent. Yet, in modern times, it has very rarely
attempted the exercise of this power.
The legislature of New Hampshire has no more power over the rights of
the plaintiffs than existed somewhere, in some department of
government, before the Revolution. The British Parliament could not
have annulled or revoked this grant as an act of ordinary legislation.
If it had done it at all, it could only have been in virtue of that
sovereign power, called omnipotent, which does not belong to any
legislature in the United States. The legislature of New Hampshire has
the same power over this charter which belonged to the king who granted
it, and no more. By the law of England, the power to create
corporations is a part of the royal prerogative. By the Revolution,
this power may be considered as having devolved on the legislature of
the State, and it has accordingly been exercised by the legislature.
But the king cannot abolish a corporation, or new-model it, or alter
its powers, without its assent. This is the acknowledged and well-known
doctrine of the common law.
There are prohibitions in the Constitution and Bill of Rights of New
Hampshire, introduced for the purpose of limiting the legislative power
and protecting the rights and property of the citizens. One prohibition
is, "that no person shall be deprived of his property, immunities, or
privileges, put out of the protection of the law, or deprived of his
life, liberty, or estate, but by judgment of his peers or the law of
the land."
In the opinion, however, which was given in the court below, it is
denied that the trustees under the charter had any property, immunity,
liberty, or privilege in this corporation, within the meaning of this
prohibition in the Bill of Rights. It is said that it is a public
corporation and public property; that the trustees have no greater
interest in it than any other individuals; that it is not private
property, which they can sell or transmit to their heirs, and that
therefore they have no interest in it; that their office is a public
trust, like that of the Governor or a judge, and that they have no more
concern in the property of the college than the Governor in the
property of the State, or than the judges in the fines which they
impose on the culprits at their bar; that it is nothing to them whether
their powers shall be extended or lessened, any more than it is to
their honors whether their jurisdiction shall be enlarged or
diminished. It is necessary, therefore, to inquire into the true nature
and character of the corporation which was created by the charter of
1769.
There are divers sorts of corporations; and it may be safely admitted
that the legislature has more power over some than others. Some
corporations are for government and political arrangement; such, for
example, as cities, counties, and towns in New England. These may be
changed and modified as public convenience may require, due regard
being always had to the rights of property. Of such corporations, all
who live within the limits are of course obliged to be members, and to
submit to the duties which the law imposes on them as such. Other civil
corporations are for the advancement of trade and business, such as
banks, insurance companies, and the like. These are created, not by
general law, but usually by grant. Their constitution is special. It is
such as the legislature sees fit to give, and the grantees to accept.
The corporation in question is not a civil, although it is a lay
corporation. It is an eleemosynary corporation. It is a private
charity, originally founded and endowed by an individual, with a
charter obtained for it at his request, for the better administration
of his charity. "The eleemosynary sort of corporations are such as are
constituted for the perpetual distributions of the free alms or bounty
of the founder of them, to such persons as he has directed. Of this are
all hospitals for the maintenance of the poor, sick, and impotent; and
all colleges both in our universities and out of them." Eleemosynary
corporations are for the management of private property, according to
the will of the donors. They are private corporations. A college is as
much a private corporation as a hospital; especially a college founded,
as this was, by private bounty. A college is a charity. "The
establishment of learning," says Lord Hardwicke, "is a charity, and so
considered in the statute of Elizabeth. To devise to a college, for
their benefit, is a laudable charity, and deserves encouragement."
The legal signification of _a charity_ is derived chiefly from the
statute 43 Eliz. ch. 4. "Those purposes," says Sir William Grant, "are
considered _charitable_ which that statute enumerates." Colleges are
enumerated as charities in that statute. The government, in these
cases, lends its aid to perpetuate the beneficent intention of the
donor, by granting a charter under which his private charity shall
continue to be dispensed after his death. This is done either by
incorporating the objects of the charity, as, for instance, the
scholars in a college or the poor in a hospital, or by incorporating
those who are to be governors or trustees of the charity. In cases of
the first sort, the founder is, by the common law, visitor. In early
times it became a maxim, that he who gave the property might regulate
it in future. "Cujus est dare, ejus est disponere." This right of
visitation descended from the founder to his heir as a right of
property, and precisely as his other property went to his heir; and in
default of heirs it went to the king, as all other property goes to the
king for the want of heirs. The right of visitation arises from the
property. It grows out of the endowment. The founder may, if he please,
part with it at the time when he establishes the charity, and may vest
it in others. Therefore, if he chooses that governors, trustees, or
overseers should be appointed in the charter, he may cause it to be
done, and his power of visitation may be transferred to them, instead
of descending to his heirs. The persons thus assigned or appointed by
the founder will be visitors, with all the powers of the founder, in
exclusion of his heir. The right of visitation, then, accrues to them,
as a matter of property, by the gift, transfer, or appointment of the
founder. This is a private right, which they can assert in all legal
modes, and in which they have the same protection of the law as in all
other rights. As visitors they may make rules, ordinances, and
statutes, and alter and repeal them, as far as permitted so to do by
the charter. Although the charter proceeds from the crown or the
government, it is considered as the will of the donor. It is obtained
at his request. He uses it as the rule which is to prevail in the
dispensation of his bounty in all future times. The king or government
which grants the charter is not thereby the founder, but he who
furnishes the funds. The gift of the revenues is the foundation.
The leading case on this subject is _Phillips v. Bury_. This was an
ejectment brought to recover the rectory-house, &c. of Exeter College
in Oxford. The question was whether the plaintiff or defendant was
legal rector. Exeter College was founded by an individual, and
incorporated by a charter granted by Queen Elizabeth. The controversy
turned upon the power of the visitor, and, in the discussion of the
cause, the nature of college charters and corporations was very fully
considered.
Lord Holt's judgment is that that college was a _private corporation_,
and that the founder had a right to appoint a visitor, and to give him
such power as he saw fit.
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 similar corporations. It is to the
following effect. "That colleges, although founded by private persons,
are yet incorporated by the king's charter; but although the kings by
their charter made the colleges to be such in law, that is, to be legal
corporations, yet they left to the particular founders authority to
appoint what statutes they thought fit for the regulation of them. And
not only the statutes, but the appointment of visitors, was left to
them, and the manner of government, and the several conditions on which
any persons were to be made or continue partakers of their bounty."
These opinions received the sanction of the House of Lords, and they
seem to be settled and undoubted law.
"There is nothing better established," says Lord Commissioner Eyre,
"than that this court does not entertain a general jurisdiction, or
regulate and control charities _established by charter_. There the
establishment is fixed and determined; and the court has no power to
vary it. If the governors established for the regulation of it are not
those who have the management of the revenue, this court has no
jurisdiction, and if it is ever so much abused, as far as it respects
the jurisdiction of this court it is without remedy; but if those
established as governors have also the management of the revenues, this
court does assume a jurisdiction of necessity, so far as they are to be
considered as trustees of the revenue."
"The foundations of colleges," says Lord Mansfield, "are to be
considered in two views; namely, as they are _corporations_ and as they
are _eleemosynary_. As eleemosynary, they are the creatures of the
founder; he may delegate his power, either generally or specially; he
may prescribe particular modes and manners, as to the exercise of part
of it."
In New England, and perhaps throughout the United States, eleemosynary
corporations have been generally established by incorporating
governors, or trustees, and vesting in them the right of visitation.
The case before the court is clearly that of an eleemosynary
corporation. It is, in the strictest legal sense, a private charity. In
_King v. St. Catherine's Hall_, that college is called a private
eleemosynary lay corporation. It was endowed by a private founder, and
incorporated by letters patent. And in the same manner was Dartmouth
College founded and incorporated. Dr. Wheelock is declared by the
charter to be its founder. It was established by him, or funds
contributed and collected by himself.
As such founder, he had a right of visitation, which he assigned to the
trustees, and they received it by his consent and appointment, and held
it under the charter. He appointed these trustees visitors, and in that
respect to take place of his heir; as he might have appointed devisees,
to take his estate instead of his heir. Little, probably, did he think,
at that time, that the legislature would ever take away this property
and these privileges, and give them to others. Little did he suppose
that this charter secured to him and his successors no legal rights.
Little did the other donors think so. If they had, the college would
have been, what the university is now, a thing upon paper, existing
only in name.
The numerous academies in New England have been established
substantially in the same manner. They hold their property by the same
tenure, and no other. Nor has Harvard College any surer title than
Dartmouth College. It may to-day have more friends; but to-morrow it
may have more enemies. Its legal rights are the same. So also of Yale
College; and, indeed, of all the others. When the legislature gives to
these institutions, it may and does accompany its grants with such
conditions as it pleases. The grant of lands by the legislature of New
Hampshire to Dartmouth College, in 1789, was accompanied with various
conditions. When donations are made, by the legislature or others, to a
charity already existing, without any condition, or the specification
of any new use, the donation follows the nature of the charity. Hence
the doctrine, that all eleemosynary corporations are private bodies.
They are founded by private persons, and on private property. The
public cannot be charitable in these institutions. It is not the money
of the public, but of private persons, which is dispensed. It may be
public, that is general, in its uses and advantages; and the State may
very laudably add contributions of its own to the funds; but it is
still private in the tenure of the property, and in the right of
administering the funds.
The charter declares that the powers conferred on the trustees are
"privileges, advantages, liberties, and immunities"; and that they
shall be for ever holden by them and their successors. The New
Hampshire Bill of Rights declares that no one shall be deprived of his
"property, privileges, or immunities," but by judgment of his peers, or
the law of the land. The argument on the other side is, that, although
these terms may mean something in the Bill of Rights, they mean nothing
in this charter. They are equivalent with _franchises_. Blackstone says
that _franchise_ and _liberty_ are used as synonymous terms.
The privilege, then, of being a member of a corporation, under a lawful
grant, and of exercising the rights and powers of such member, is such
a privilege, _liberty_, or _franchise_, as has been the object of legal
protection, and the subject of a legal interest, 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 of law, not as agents of the public, but in their own right. Each
trustee has a _franchise_, and if he be disturbed in the enjoyment of
it, he would have redress, on appealing to the law, as promptly as for
any other injury. If the other trustees should conspire against any one
of them to prevent his equal right and voice in the appointment of a
president or professor, or in the passing of any statute or ordinance
of the college, he would be entitled to his action, for depriving him
of his franchise. It makes no difference, that this property is to be
holden and administered, and these franchises exercised, for the
purpose of diffusing learning. No principle and no case establishes any
such distinction. The public may be benefited by the use of this
property. But this does not change the nature of the property, or the
rights of the owners. The object of the charter may be public good; so
it is in all other corporations; and this would as well justify the
resumption or violation of the grant in any other case as in this. In
the case of an advowson, the use is public, and the right cannot be
turned to any private benefit or emolument. It is nevertheless a legal
private right, and the _property_ of the owner, as emphatically as his
freehold. The rights and privileges of trustees, visitors, or governors
of incorporated colleges, stand on the same foundation. They are so
considered, both by Lord Holt and Lord Hardwicke.
To contend that the rights of the plaintiffs may be taken away, because
they derive from them no pecuniary benefit or private emolument, or
because they cannot be transmitted to their heirs, or would not be
assets to pay their debts, is taking an extremely narrow view of the
subject. According to this notion, the case would be different, if, in
the charter, they had stipulated for a commission on the disbursement
of the funds; and they have ceased to have any interest in the
property, because they have undertaken to administer it gratuitously.
It cannot be necessary to say much in refutation of the idea, that
there cannot be a legal interest, or ownership, in any thing which does
not yield a pecuniary profit; as if the law regarded no rights but the
rights of money, and of visible, tangible property. Of what nature are
all rights of suffrage? No elector has a particular personal interest;
but each has a legal right, to be exercised at his own discretion, and
it cannot be taken away from him. The exercise of this right directly
and very materially affects the public; much more so than the exercise
of the privileges of a trustee of this college. Consequences of the
utmost magnitude may sometimes depend on the exercise of the right of
suffrage by one or a few electors. Nobody was ever yet heard to
contend, however, that on that account the public might take away the
right, or impair it. This notion appears to be borrowed from no better
source than the repudiated doctrine of the three judges in the
Aylesbury case. The doctrine having been exploded for a century, seems
now for the first time to be revived.
Individuals have a right to use their own property for purposes of
benevolence, either towards the public, or towards other individuals.
They have a right to exercise this benevolence in such lawful manner as
they may choose; and when the government has induced and excited it, by
contracting to give perpetuity to the stipulated manner of exercising
it, it is not law, but violence, to rescind this contract, and seize on
the property. Whether the State will grant these franchises, and under
what conditions it will grant them, it decides for itself. But when
once granted, the constitution holds them to be sacred, till forfeited
for just cause.
That all property, of which the use may be beneficial to the public,
belongs therefore to the public, is quite a new doctrine. It has no
precedent, and is supported by no known principle. Dr. Wheelock might
have answered his purposes, in this case, by executing a private deed
of trust. He might have conveyed his property to trustees, for
precisely such uses as are described in this charter. Indeed, it
appears that he had contemplated the establishing of his school in that
manner, and had made his will, and devised the property to the same
persons who were afterwards appointed trustees in the charter. Many
literary and other charitable institutions are founded in that manner,
and the trust is renewed, and conferred on other persons, from time to
time, as occasion may require. In such a case, no lawyer would or could
say, that the legislature might divest the trustees, constituted by
deed or will, seize upon the property, and give it to other persons,
for other purposes. And does the granting of a charter, which is only
done to perpetuate the trust in a more convenient manner, make any
difference? Does or can this change the nature of the charity, and turn
it into a public political corporation? Happily, we are not without
authority on this point. It has been considered and adjudged. Lord
Hardwicke says, in so many words, "The charter of the crown cannot make
a charity more or less public, but only more permanent than it would
otherwise be."
The granting of the corporation is but making the trust perpetual, and
does not alter the nature of the charity. The very object sought in
obtaining such charter, and in giving property to such a corporation,
is to make and keep it private property, and to clothe it with all the
security and inviolability of private property. The intent is, that
there shall be a legal private ownership, and that the legal owners
shall maintain and protect the property, for the benefit of those for
whose use it was designed. Who ever endowed the public? Who ever
appointed a legislature to administer his charity? Or who ever heard,
before, that a gift to a college, or a hospital, or an asylum, was, in
reality, nothing but a gift to the State?
The State of Vermont is a principal donor to Dartmouth College. The
lands given lie in that State. This appears in the special verdict. Is
Vermont to be considered as having intended a gift to the State of New
Hampshire in this case, as, it has been said, is to be the reasonable
construction of all donations to the college? The legislature of New
Hampshire affects to represent the public, and therefore claims a right
to control all property destined to public use. What hinders Vermont
from considering herself equally the representative of the public, and
from resuming her grants, at her own pleasure? Her right to do so is
less doubtful than the power of New Hampshire to pass the laws in
question. I hope enough has been said to show that the trustees
possessed vested liberties, privileges, and immunities, under this
charter; and that such liberties, privileges, and immunities, being
once lawfully obtained and vested, are as inviolable as any vested
rights of property whatever. Rights to do certain acts, such, for
instance, as the visitation and superintendence of a college and the
appointment of its officers, may surely be vested rights, to all legal
intents, as completely as the right to possess property. A late learned
judge of this court has said, "When I say that a _right_ is vested in a
citizen, I mean that he has the power to do _certain actions_, or to
possess _certain things_, according to the law of the land."
If such be the true nature of the plaintiffs' interests under this
charter, what are the articles in the New Hampshire Bill of Rights
which these acts infringe?
They infringe the second article; which says, that the citizens of the
State have a right to hold and possess property. The plaintiffs had a
legal property in this charter; and they had acquired property under
it. The acts deprive them of both. They impair and take away the
charter; and they appropriate the property to new uses, against their
consent. The plaintiffs cannot now hold the property acquired by
themselves, and which this article says they have a right to hold.
They infringe the twentieth article. By that article it is declared
that, in questions of property, there is a right to trial. The
plaintiffs are divested, without trial or judgment.
They infringe the twenty-third article. It is therein declared that no
retrospective laws shall be passed. This article bears directly on the
case. These acts must be deemed to be retrospective, within the settled
construction of that term. What a retrospective law is, has been
decided, on the construction of this very article, in the Circuit Court
for the First Circuit, The learned judge of that circuit says: "Every
statute which takes away or impairs vested rights, acquired under
existing laws, must be deemed retrospective." That all such laws are
retrospective was decided also in the case of _Dash v. Van Kleek_,
where a most learned judge quotes this article from the constitution of
New Hampshire, with manifest approbation, as a plain and clear
expression of those fundamental and unalterable principles of justice,
which must lie at the foundation of every free and just system of laws.
Can any man deny that the plaintiffs had rights, under the charter,
which were legally vested, and that by these acts those rights are
impaired?
"It is a principle in the English law," says Chief Justice Kent, in the
case last cited, "as ancient as the law itself, that a statute, even of
its omnipotent Parliament, is not to have a retrospective effect. 'Nova
constitutio futuris formam imponere debet, et non praeteritis.' The
maxim in Bracton was taken from the civil law, for we find in that
system the same principle, expressed substantially in the same words,
that the law-giver cannot alter his mind to the prejudice of a vested
right. 'Nemo potest mutare concilium suum in alterius injuriam.'"
These acts infringe also the thirty-seventh article of the constitution
of New Hampshire; which says, that the powers of government shall be
kept separate. By these acts, the legislature assumes to exercise a
judicial power. It declares a forfeiture, and resumes franchises, once
granted, without trial or hearing.
If the constitution be not altogether waste-paper, it has restrained
the power of the legislature in these particulars. If it has any
meaning, it is that the legislature shall pass no act directly and
manifestly impairing private property and private privileges. It shall
not judge by act. It shall not decide by act. It shall not deprive by
act. But it shall leave all these things to be tried and adjudged by
the law of the land.
The fifteenth article has been referred to before. It declares that no
one shall be "deprived of his property, immunities, or privileges, but
by the judgment of his peers or the law of the land." Notwithstanding
the light in which the learned judges in New Hampshire viewed the
rights of the plaintiffs under the charter, and which has been before
adverted to, it is found to be admitted in their opinion, that those
rights are privileges within the meaning of this fifteenth article of
the Bill of Rights. Having quoted that article, they say: "That the
right to manage the affairs of this college is a privilege, within the
meaning of this clause of the Bill of Rights, is not to be doubted." In
my humble opinion, this surrenders the point. To resist the effect of
this admission, however, the learned judges add: "But how a privilege
can be protected from the operation of the law of the land by a clause
in the constitution, declaring that it shall not be taken away but by
the law of the land, is not very easily understood." This answer goes
on the ground, that the acts in question are laws of the land, within
the meaning of the constitution. If they be so, the argument drawn from
this article is fully answered. If they be not so, it being admitted
that the plaintiffs' rights are "privileges," within the meaning of the
article, the argument is not answered, and the article is infringed by
the acts. Are, then, these acts of the legislature, which affect only
particular persons and their particular privileges, laws of the land?
Lord Coke citing and commenting on the celebrated twenty-ninth chapter
of Magna Charta, says: "No man shall be disseized, &c., unless it be by
the lawful judgment, that is, verdict of equals, or by the law of the
land, that is (to speak it once for all), by the due course and process
of law." Have the plaintiffs lost their franchises by "due course and
process of law"? On the contrary, are not these acts "particular acts
of the legislature, which have no relation to the community in general,
and which are rather sentences than laws"?
By the law of the land is most clearly intended the general law; a law
which hears before it condemns; which proceeds upon inquiry, and
renders judgment only after trial. The meaning is, that every citizen
shall hold his life, liberty, property, and immunities under the
protection of the general rules which govern society. Every thing which
may pass under the form of an enactment is not therefore to be
considered the law of the land. If this were so, acts of attainder,
bills of pains and penalties, acts of confiscation, acts reversing
judgments, and acts directly transferring one man's estate to another,
legislative judgments, decrees, and forfeitures in all possible forms,
would be the law of the land.
Such a strange construction would render constitutional provisions of
the highest importance completely inoperative and void. It would tend
directly to establish the union of all powers in the legislature. There
would be no general, permanent law for courts to administer or men to
live under. The administration of justice would be an empty form, an
idle ceremony. Judges would sit to execute legislative judgments and
decrees; not to declare the law or to administer the justice of the
country.
That the power of electing and appointing the officers of this college
is not only a right of the trustees as a corporation, generally, and in
the aggregate, but that each individual trustee has also his own
individual franchise in such right of election and appointment, is
according to the language of all the authorities. Lord Holt says: "It
is agreeable to reason and the rules of law, that a franchise should be
vested in the corporation aggregate, and yet the benefit of it to
redound to the particular members, and to be enjoyed by them in their
private capacity. Where the privilege of election is used by particular
persons, _it is a particular right, vested in every particular man_."
It is also to be considered, that the president and professors of this
college have rights to be affected by these acts. Their interest is
similar to that of fellows in the English colleges; because they derive
their living, wholly or in part, from the founders' bounty. The
president is one of the trustees or corporators. The professors are not
necessarily members of the corporation; but they are appointed by the
trustees, are removable only by them, and have fixed salaries payable
out of the general funds of the college. Both president and professors
have freeholds in their offices; subject only to be removed by the
trustees, as their legal visitors, for good cause. All the authorities
speak of fellowships in colleges as freeholds, notwithstanding the
fellows may be liable to be suspended or removed, for misbehavior, by
their constituted visitors.
Nothing could have been less expected, in this age, than that there
should have been an attempt, by acts of the legislature, to take away
these college livings, the inadequate but the only support of literary
men who have devoted their lives to the instruction of youth. The
president and professors were appointed by the twelve trustees. They
were accountable to nobody else, and could be removed by nobody else.
They accepted their offices on this tenure. Yet the legislature has
appointed other persons, with power to remove these officers and to
deprive them of their livings; and those other persons have exercised
that power. No description of private property has been regarded as
more sacred than college livings. They are the estates and freeholds of
a most deserving class of men; of scholars who have consented to forego
the advantages of professional and public employments, and to devote
themselves to science and literature and the instruction of youth in
the quiet retreats of academic life. Whether to dispossess and oust
them; to deprive them of their office, and to turn them out of their
livings; to do this, not by the power of their legal visitors or
governors, but by acts of the legislature, and to do it without
forfeiture and without fault; whether all this be not in the highest
degree an indefensible and arbitrary proceeding, is a question of which
there would seem to be but one side fit for a lawyer or a scholar to
espouse.
If it could be made to appear that the trustees and the president and
professors held their offices and franchises during the pleasure of the
legislature, and that the property holden belonged to the State, then
indeed the legislature have done no more than they had a right to do.
But this is not so. The charter is a charter of privileges and
immunities; and these are holden by the trustees expressly against the
State for ever.
It is admitted that the State, by its courts of law, can enforce the
will of the donor, and compel a faithful execution of the trust. The
plaintiffs claim no exemption from legal responsibility. They hold
themselves at all times answerable to the law of the land, for their
conduct in the trust committed to them. They ask only to hold the
property of which they are owners, and the franchises which belong to
them, until they shall be found, by due course and process of law, to
have forfeited them.
It can make no difference whether the legislature exercise the power it
has assumed by removing the trustees and the president and professors,
directly and by name, or by appointing others to expel them. The
principle is the same, and in point of fact the result has been the
same. If the entire franchise cannot be taken away, neither can it be
essentially impaired. If the trustees are legal owners of the property,
they are sole owners. If they are visitors, they are sole visitors. No
one will be found to say, that, if the legislature may do what it has
done, it may not do any thing and every thing which it may choose to
do, relative to the property of the corporation, and the privileges of
its members and officers.
If the view which has been taken of this question be at all correct,
this was an eleemosynary corporation, a private charity. The property
was private property. The trustees were visitors, and the right to hold
the charter, administer the funds, and visit and govern the college,
was a franchise and privilege, solemnly granted to them. The use being
public in no way diminishes their legal estate in the property, or
their title to the franchise. There is no principle, nor any case,
which declares that a gift to such a corporation is a gift to the
public. The acts in question violate property. They take away
privileges, immunities, and franchises. They deny to the trustees the
protection of the law; and they are retrospective in their operation.
In all which respects they are against the constitution of New
Hampshire.
The plaintiffs contend, in the second place, that the acts in question
are repugnant to the tenth section of the first article of the
Constitution of the United States. The material words of that section
are: "No State shall pass any bill of attainder, _ex post facto_ law,
or law impairing the obligation of contracts."
The object of these most important provisions in the national
constitution has often been discussed, both here and elsewhere. It is
exhibited with great clearness and force by one of the distinguished
persons who framed that instrument. "Bills of attainder, _ex post
facto_ laws, and laws impairing the obligation of contracts, are
contrary to the first principles of the social compact, and to every
principle of sound legislation. The two former are expressly prohibited
by the declarations prefixed to some of the State constitutions, and
all of them are prohibited by the spirit and scope of these fundamental
charters. Our own experience has taught us, nevertheless, that
additional fences against these dangers ought not to be omitted. Very
properly, therefore, have the convention added this constitutional
bulwark, in favor of personal security and private rights; and I am
much deceived, if they have not, in so doing, as faithfully consulted
the genuine sentiments as the undoubted interests of their
constituents. The sober people of America are weary of the fluctuating
policy which has directed the public councils. They have seen with
regret, and with indignation, that sudden changes, and legislative
interferences in cases affecting personal rights, become jobs in the
hands of enterprising and influential speculators, and snares to the
more industrious and less informed part of the community. They have
seen, too, that one legislative interference is but the link of a long
chain of repetitions; every subsequent interference being naturally
produced by the effects of the preceding."
It has already been decided in this court, that a _grant_ is a
contract, within the meaning of this provision; and that a grant by a
State is also a contract, as much as the grant of an individual. In the
case of _Fletcher v. Peck_, this court says: "A contract is a compact
between two or more parties, and is either executory or executed. An
executory contract is one in which a party binds himself to do, or not
to do, a particular thing; such was the law under which the conveyance
was made by the government. A contract executed is one in which the
object of contract is performed; and this, says Blackstone, differs in
nothing from a grant. The contract between Georgia and the purchasers
was executed by the grant. A contract executed, as well as one which is
executory, contains obligations binding on the parties. A grant, in its
own nature, amounts to an extinguishment of the right of the grantor,
and implies a contract not to reassert that right. If, under a fair
construction of the Constitution, grants are comprehended under the
term contracts, is a grant from the State excluded from the operation
of the provision? Is the clause to be considered as inhibiting the
State from impairing the obligation of contracts between two
individuals, but as excluding from that inhibition contracts made with
itself? The words themselves contain no such distinction. They are
general, and are applicable to contracts of every description. If
contracts made with the State are to be exempted from their operation,
the exception must arise from the character of the contracting party,
not from the words which are employed. Whatever respect might have been
felt for the State sovereignties, it is not to be disguised that the
framers of the Constitution viewed with some apprehension the violent
acts which might grow out of the feelings of the moment; and that the
people of the United States, in adopting that instrument, have
manifested a determination to shield themselves and their property from
the effects of those sudden and strong passions to which men are
exposed. The restrictions on the legislative power of the States are
obviously founded in this sentiment; and the Constitution of the United
States contains what may be deemed a bill of rights for the people of
each State."
It also has been decided that a grant by a State before the Revolution
is as much to be protected as a grant since. But the case of _Terrett
v. Taylor_, before cited, is of all others most pertinent to the
present argument. Indeed, the judgment of the court in that case seems
to leave little to be argued or decided in this. "A private
corporation," say the court, "created by the legislature, may lose its
franchises by a _misuser_ or a _nonuser_ of them; and they may be
resumed by the government under a judicial judgment upon a _quo
warranto_ to ascertain and enforce the forfeiture. This is the common
law of the land, and is a tacit condition annexed to the creation of
every such corporation. Upon a change of government, too, it may be
admitted, that such exclusive privileges attached to a private
corporation as are inconsistent with the new government may be
abolished. In respect, also, to _public_ corporations which exist only
for public purposes, such as counties, towns, cities, and so forth, the
legislature may, under proper limitations, have a right to change,
modify, enlarge, or restrain them, securing, however, the property for
the uses of those for whom and at whose expense it was originally
purchased. But that the legislature can repeal statutes creating
private corporations, or confirming to them property already acquired
under the faith of previous laws, and by such repeal can vest the
property of such corporations exclusively in the State, or dispose of
the same to such purposes as they please, without the consent or
default of the corporators, we are not prepared to admit; and we think
ourselves standing upon the principles of natural justice, upon the
fundamental laws of every free government, upon the spirit and letter
of the Constitution of the United States, and upon the decisions of
most respectable judicial tribunals, in resisting such a doctrine."
This court, then, does not admit the doctrine, that a legislature can
repeal statutes creating private corporations. If it cannot repeal them
altogether, of course it cannot repeal any part of them, or impair
them, or essentially alter them, without the consent of the
corporators. If, therefore, it has been shown that this college is to
be regarded as a private charity, this case is embraced within the very
terms of that decision. A grant of corporate powers and privileges is
as much a contract as a grant of land. What proves all charters of this
sort to be contracts is, that they must be accepted to give them force
and effect. If they are not accepted, they are void. And in the case of
an existing corporation, if a new charter is given it, it may even
accept part and reject the rest. In _Rex v. Vice-Chancellor of
Cambridge_, Lord Mansfield says: "There is a vast deal of difference
between a new charter granted to a new corporation, (who must take it
as it is given,) and a new charter given to a corporation already in
being, and acting either under a former charter or under prescriptive
usage. The latter, a corporation already existing, are not obliged to
accept the new charter _in toto_, and to receive either all or none of
it; they may act partly under it, and partly under their old charter or
prescription. The validity of these new charters must turn upon the
acceptance of them." In the same case Mr. Justice Wilmot says: "It is
the concurrence and acceptance of the university that gives the force
to the charter of the crown." In the _King v. Pasmore_, Lord Kenyon
observes: "Some things are clear: when a corporation exists capable of
discharging its functions, the crown cannot obtrude another charter
upon them; they may either accept or reject it."
And because charters of incorporation are of the nature of contracts,
they cannot be altered or varied but by consent of the original
parties. If a charter be granted by the king, it may be altered by a
new charter granted by the king, and accepted by the corporators. But
if the first charter be granted by Parliament, the consent of
Parliament must be obtained to any alteration. In _King v. Miller_,
Lord Kenyon says: "Where a corporation takes its rise from the king's
charter, the king by granting, and the corporation by accepting another
charter, may alter it, because it is done with the consent of all the
parties who are competent to consent to the alteration."
There are, in this case, all the essential constituent parts of a
contract. There is something to be contracted about, there are parties,
and there are plain terms in which the agreement of the parties on the
subject of the contract is expressed. There are mutual considerations
and inducements. The charter recites, that the founder, on his part,
has agreed to establish his seminary in New Hampshire, and to enlarge
it beyond its original design, among other things, for the benefit of
that Province; and thereupon a charter is given to him and his
associates, designated by himself, promising and assuring to them,
under the plighted faith of the State, the right of governing the
college and administering its concerns in the manner provided in the
charter. There is a complete and perfect grant to them of all the power
of superintendence, visitation, and government. Is not this a contract?
If lands or money had been granted to him and his associates, for the
same purposes, such grant could not be rescinded. And is there any
difference, in legal contemplation, between a grant of corporate
franchises and a grant of tangible property? No such difference is
recognized in any decided case, nor does it exist in the common
apprehension of mankind.
It is therefore contended, that this case falls within the true meaning
of this provision of the Constitution, as expounded in the decisions of
this court; that the charter of 1769 is a contract, a stipulation or
agreement, mutual in its considerations, express and formal in its
terms, and of a most binding and solemn nature. That the acts in
question impair this contract, has already been sufficiently shown.
They repeal and abrogate its most essential parts.
A single observation may not be improper on the opinion of the court of
New Hampshire, which has been published. The learned judges who
delivered that opinion have viewed this question in a very different
light from that in which the plaintiffs have endeavored to exhibit it.
After some general remarks, they assume that this college is a public
corporation; and on this basis their judgment rests. Whether all
colleges are not regarded as private and eleemosynary corporations, by
all law writers and all judicial decisions; whether this college was
not founded by Dr. Wheelock; whether the charter was not granted at his
request, the better to execute a trust, which he had already created;
whether he and his associates did not become visitors, by the charter;
and whether Dartmouth College be not, therefore, in the strictest
sense, a private charity, are questions which the learned judges do not
appear to have discussed.
It is admitted in that opinion, that, if it be a private corporation,
its rights stand on the same ground as those of an individual. The
great question, therefore, to be decided is, To which class of
corporations do colleges thus founded belong? And the plaintiffs have
endeavored to satisfy the court, that, according to the well-settled
principles and uniform decisions of law, they are private, eleemosynary
corporations.
Much has heretofore been said on the necessity of admitting such a
power in the legislature as has been assumed in this case. Many cases
of possible evil have been imagined, which might otherwise be without
remedy. Abuses, it is contended, might arise in the management of such
institutions, which the ordinary courts of law would be unable to
correct. But this is only another instance of that habit of supposing
extreme cases, and then of reasoning from them, which is the constant
refuge of those who are obliged to defend a cause, which, upon its
merits, is indefensible. It would be sufficient to say in answer, that
it is not pretended that there was here any such case of necessity. But
a still more satisfactory answer is, that the apprehension of danger is
groundless, and therefore the whole argument fails. Experience has not
taught us that there is danger of great evils or of great inconvenience
from this source. Hitherto, neither in our own country nor elsewhere
have such cases of necessity occurred. The judicial establishments of
the State are presumed to be competent to prevent abuses and violations
of trust, in cases of this kind, as well as in all others. If they be
not, they are imperfect, and their amendment would be a most proper
subject for legislative wisdom. Under the government and protection of
the general laws of the land, these institutions have always been found
safe, as well as useful. They go on, with the progress of society,
accommodating themselves easily, without sudden change or violence, to
the alterations which take place in its condition, and in the
knowledge, the habits, and pursuits of men. The English colleges were
founded in Catholic ages. Their religion was reformed with the general
reformation of the nation; and they are suited perfectly well to the
purpose of educating the Protestant youth of modern times. Dartmouth
College was established under a charter granted by the Provincial
government; but a better constitution for a college or one more adapted
to the condition of things under the present government, in all
material respects, could not now be framed. Nothing in it was found to
need alteration at the Revolution. The wise men of that day saw in it
one of the best hopes of future times, and commended it as it was, with
parental care, to the protection and guardianship of the government of
the State. A charter of more liberal sentiments, of wiser provisions,
drawn with more care, or in a better spirit, could not be expected at
any time or from any source. The college needed no change in its
organization or government. That which it did need was the kindness,
the patronage, the bounty of the legislature; not a mock elevation to
the character of a university, without the solid benefit of a
shilling's donation to sustain the character; not the swelling and
empty authority of establishing institutes and other colleges. This
unsubstantial pageantry would seem to have been in derision of the
scanty endowment and limited means of an unobtrusive, but useful and
growing seminary. Least of all was there a necessity, or pretence of
necessity, to infringe its legal rights, violate its franchises and
privileges, and pour upon it these overwhelming streams of litigation.
But this argument from necessity would equally apply in all other
cases. If it be well founded, it would prove, that, whenever any
inconvenience or evil is experienced from the restrictions imposed on
the legislature by the Constitution, these restrictions ought to be
disregarded. It is enough to say, that the people have thought
otherwise. They have, most wisely, chosen to take the risk of
occasional inconvenience from the want of power, in order that there
might be a settled limit to its exercise, and a permanent security
against its abuse. They have imposed prohibitions and restraints; and
they have not rendered these altogether vain and nugatory by conferring
the power of dispensation. If inconvenience should arise which the
legislature cannot remedy under the power conferred upon it, it is not
answerable for such inconvenience. That which it cannot do within the
limits prescribed to it, it cannot do at all. No legislature in this
country is able, and may the time never come when it shall be able, to
apply to itself the memorable expression of a Roman pontiff: "Licet hoc
_de jure_ non possumus, volumus tamen _de plenitudine potestatis_."
The case before the court is not of ordinary importance, nor of
every-day occurrence. It affects not this college only, but every
college, and all the literary institutions of the country. They have
flourished hitherto, and have become in a high degree respectable and
useful to the community. They have all a common principle of existence,
the inviolability of their charters. It will be a dangerous, a most
dangerous experiment, to hold these institutions subject to the rise
and fall of popular parties, and the fluctuations of political
opinions. If the franchise may be at any time taken away, or impaired,
the property also may be taken away, or its use perverted. Benefactors
will have no certainty of effecting the object of their bounty; and
learned men will be deterred from devoting themselves to the service of
such institutions, from the precarious title of their offices. Colleges
and halls will be deserted by all better spirits, and become a theatre
for the contentions of politics, Party and faction will be cherished in
the places consecrated to piety and learning. These consequences are
neither remote nor possible only. They are certain and immediate.
When the court in North Carolina declared the law of the State, which
repealed a grant to its university, unconstitutional and void, the
legislature had the candor and the wisdom to repeal the law. This
example, so honorable to the State which exhibited it, is most fit to
be followed on this occasion. And there is good reason to hope that a
State, which has hitherto been so much distinguished for temperate
counsels, cautious legislation, and regard to law, will not fail to
adopt a course which will accord with her highest and best interests,
and in no small degree elevate her reputation. It was for many and
obvious reasons most anxiously desired that the question of the power
of the legislature over this charter should have been finally decided
in the State court. An earnest hope was entertained that the judges of
the court might have viewed the case in a light favorable to the rights
of the trustees. That hope has failed. It is here that those rights are
now to be maintained, or they are prostrated for ever. "Omnia alia
perfugia bonorum, subsidia, consilia, auxilia, jura ceciderunt. Quem
enim alium appellem? quem obtester? quern implorem? Nisi hoc loco, nisi
apud vos, nisi per vos, judices, salutem nostram, quae spe exigua
extremaque pendet, tenuerimus; nihil est praeterea quo confugere
possimus." [1]
This, sir, is my case. It is the case, not merely of that humble
institution, it is the case of every college in the land. It is more.
It is the case of every eleemosynary institution throughout our
country--of all those great charities formed by the piety of our
ancestors, to alleviate human misery, and scatter blessings along the
pathway of life. It is more! It is, in some sense, the case of every
man among us who has property, of which he may be stripped, for the
question is simply this: Shall our State legislatures be allowed to
take that which is not their own, to turn it from its original use, and
apply it to such ends or purposes as they in their discretion shall see
fit?
Sir, you may destroy this little institution; it is weak; it is in your
hands! I know it is one of the lesser lights in the literary horizon of
our country. You may put it out. But, if you do so, you must carry
through your work! You must extinguish, one after another, all those
greater lights of science, which, for more than a century, have thrown
their radiance over our land!
It is, sir, as I have said, a small college, and yet there are those
who love it. [2]
Sir, I know not how others may feel (glancing at the opponents of the
colleges before him), but for myself, when I see my Alma Mater
surrounded, like Caesar, in the senate house, by those who are
reiterating stab after stab, I would not, for this right hand, have her
turn to me, and say, _et tu quoque, mi fili! And thou too, my son!_ [3]
First Settlement of New England.
Let us rejoice that we behold this day. Let us be thankful that we have
lived to see the bright and happy breaking of the auspicious morn,
which commences the third century of the history of New England.
Auspicious, indeed,--bringing a happiness beyond the common allotment
of Providence to men,--full of present joy, and gilding with bright
beams the prospect of futurity, is the dawn that awakens us to the
commemoration of the landing of the Pilgrims.
Living at an epoch which naturally marks the progress of the history of
our native land, we have come hither to celebrate the great event with
which that history commenced. For ever honored be this, the place of
our fathers' refuge! For ever remembered the day which saw them, weary
and distressed, broken in every thing but spirit, poor in all but faith
and courage, at last secure from the dangers of wintry seas, and
impressing this shore with the first footsteps of civilized man!
It is a noble faculty of our nature which enables us to connect our
thoughts, our sympathies, and our happiness with what is distant in
place or time; and, looking before and after, to hold communion at once
with our ancestors and our posterity. Human and mortal although we are,
we are nevertheless not mere insulated beings, without relation to the
past or the future. Neither the point of time, nor the spot of earth,
in which we physically live, bounds our rational and intellectual
enjoyments. We live in the past by a knowledge of its history; and in
the future, by hope and anticipation. By ascending to an association
with our ancestors; by contemplating their example and studying their
character; by partaking their sentiments, and imbibing their spirit; by
accompanying them in their toils, by sympathizing in their sufferings,
and rejoicing in their successes and their triumphs; we seem to belong
to their age, and to mingle our own existence with theirs. We become
their contemporaries, live the lives which they lived, endure what they
endured, and partake in the rewards which they enjoyed. And in like
manner, by running along the line of future time, by contemplating the
probable fortunes of those who are coming after us, by attempting
something which may promote their happiness, and leave some not
dishonorable memorial of ourselves for their regard, when we shall
sleep with the fathers, we protract our own earthly being, and seem to
crowd whatever is future, as well as all that is past, into the narrow
compass of our earthly existence. As it is not a vain and false, but an
exalted and religious imagination, which leads us to raise our thoughts
from the orb, which, amidst this universe of worlds, the Creator has
given us to inhabit, and to send them with something of the feeling
which nature prompts, and teaches to be proper among children of the
same Eternal Parent, to the contemplation of the myriads of
fellow-beings with which his goodness has peopled the infinite of
space; so neither is it false or vain to consider ourselves as
interested and connected with our whole race, through all time; allied
to our ancestors; allied to our posterity; closely compacted on all
sides with others; ourselves being but links in the great chain of
being, which begins with the origin of our race, runs onward through
its successive generations, binding together the past, the present, and
the future, and terminating at last, with the consummation of all
things earthly, at the throne of God.
There may be, and there often is, indeed, a regard for ancestry, which
nourishes only a weak pride; as there is also a care for posterity,
which only disguises an habitual avarice, or hides the workings of a
low and grovelling vanity. But there is also a moral and philosophical
respect for our ancestors, which elevates the character and improves
the heart. Next to the sense of religious duty and moral feeling, I
hardly know what should bear with stronger obligation on a liberal and
enlightened mind, than a consciousness of alliance with excellence
which is departed; and a consciousness, too, that in its acts and
conduct, and even in its sentiments and thoughts, it may be actively
operating on the happiness of those who come after it. Poetry is found
to have few stronger conceptions, by which it would affect or overwhelm
the mind, than those in which it presents the moving and speaking image
of the departed dead to the senses of the living. This belongs to
poetry, only because it is congenial to our nature. Poetry is, in this
respect, but the handmaid of true philosophy and morality; it deals
with us as human beings, naturally reverencing those whose visible
connection with this state of existence is severed, and who may yet
exercise we know not what sympathy with ourselves; and when it carries
us forward, also, and shows us the long continued result of all the
good we do, in the prosperity of those who follow us, till it bears us
from ourselves, and absorbs us in an intense interest for what shall
happen to the generations after us, it speaks only in the language of
our nature, and affects us with sentiments which belong to us as human
beings.
Standing in this relation to our ancestors and our posterity, we are
assembled on this memorable spot, to perform the duties which that
relation and the present occasion impose upon us. We have come to this
Rock, to record here our homage for our Pilgrim Fathers; our sympathy
in their sufferings; our gratitude for their labors; our admiration of
their virtues; our veneration for their piety; and our attachment to
those principles of civil and religious liberty, which they encountered
the dangers of the ocean, the storms of heaven, the violence of
savages, disease, exile, and famine, to enjoy and to establish. And we
would leave here, also, for the generations which are rising up rapidly
to fill our places, some proof that we have endeavored to transmit the
great inheritance unimpaired; that in our estimate of public principles
and private virtue, in our veneration of religion and piety, in our
devotion to civil and religious liberty, in our regard for whatever
advances human knowledge or improves human happiness, we are not
altogether unworthy of our origin.
There is a local feeling connected with this occasion, too strong to be
resisted; a sort of _genius of the place_, which inspires and awes us.
We feel that we are on the spot where the first scene of our history
was laid; where the hearths and altars of New England were first
placed; where Christianity, and civilization, and letters made their
first lodgement, in a vast extent of country, covered with a
wilderness, and peopled by roving barbarians. We are here, at the
season of the year at which the event took place. The imagination
irresistibly and rapidly draws around us the principal features and the
leading characters in the original scene. We cast our eyes abroad on
the ocean, and we see where the little bark, with the interesting group
upon its deck, made its slow progress to the shore. We look around us,
and behold the hills and promontories where the anxious eyes of our
fathers first saw the places of habitation and of rest. We feel the
cold which benumbed, and listen to the winds which pierced them.
Beneath us is the Rock, on which New England received the feet of the
Pilgrims. We seem even to behold them, as they struggle with the
elements, and, with toilsome efforts, gain the shore. We listen to the
chiefs in council; we see the unexampled exhibition of female fortitude
and resignation; we hear the whisperings of youthful impatience, and we
see, what a painter of our own has also represented by his pencil [1],
chilled and shivering childhood, houseless, but for a mother's arms,
couchless, but for a mother's breast, till our own blood almost
freezes. The mild dignity of Carver and of Bradford; the decisive and
soldier-like air and manner of Standish; the devout Brewster; the
enterprising Allerton; [2] the general firmness and thoughtfulness of
the whole band; their conscious joy for dangers escaped; their deep
solicitude about dangers to come; their trust in Heaven; their high
religious faith, full of confidence and anticipation; all of these seem
to belong to this place, and to be present upon this occasion, to fill
us with reverence and admiration.
The settlement of New England by the colony which landed here on the
twenty-second [3] of December, sixteen hundred and twenty, although not
the first European establishment in what now constitutes the United
States, was yet so peculiar in its causes and character, and has been
followed and must still be followed by such consequences, as to give it
a high claim to lasting commemoration. On these causes and
consequences, more than on its immediately attendant circumstances, its
importance, as an historical event, depends. Great actions and striking
occurrences, having excited a temporary admiration, often pass away and
are forgotten, because they leave no lasting results, affecting the
prosperity and happiness of communities. Such is frequently the fortune
of the most brilliant military achievements. Of the ten thousand
battles which have been fought, of all the fields fertilized with
carnage, of the banners which have been bathed in blood, of the
warriors who have hoped that they had risen from the field of conquest
to a glory as bright and as durable as the stars, how few that continue
long to interest mankind! The victory of yesterday is reversed by the
defeat of to-day; the star of military glory, rising like a meteor,
like a meteor has fallen; disgrace and disaster hang on the heels of
conquest and renown; victor and vanquished presently pass away to
oblivion, and the world goes on in its course, with the loss only of so
many lives and so much treasure.
But if this be frequently, or generally, the fortune of military
achievements, it is not always so. There are enterprises, military as
well as civil, which sometimes check the current of events, give a new
turn to human affairs, and transmit their consequences through ages. We
see their importance in their results, and call them great, because
great things follow. There have been battles which have fixed the fate
of nations. These come down to us in history with a solid and permanent
interest, not created by a display of glittering armor, the rush of
adverse battalions, the sinking and rising of pennons, the flight, the
pursuit, and the victory; but by their effect in advancing or retarding
human knowledge, in overthrowing or establishing despotism, in
extending or destroying human happiness. When the traveller pauses on
the plain of Marathon, what are the emotions which most strongly
agitate his breast? What is that glorious recollection, which thrills
through his frame, and suffuses his eyes? Not, I imagine, that Grecian
skill and Grecian valor were here most signally displayed; but that
Greece herself was saved. It is because to this spot, and to the event
which has rendered it immortal, he refers all the succeeding glories of
the republic. It is because, if that day had gone otherwise, Greece had
perished. It is because he perceives that her philosophers and orators,
her poets and painters, her sculptors and architects, her governments
and free institutions, point backward to Marathon, and that their
future existence seems to have been suspended on the contingency,
whether the Persian or the Grecian banner should wave victorious in the
beams of that day's setting sun. And, as his imagination kindles at the
retrospect, he is transported back to the interesting moment; he counts
the fearful odds of the contending hosts; his interest for the result
overwhelms him; he trembles, as if it were still uncertain, and seems
to doubt whether he may consider Socrates and Plato, Demosthenes,
Sophocles, and Phidias, as secure, yet, to himself and to the world.
"If we conquer," said the Athenian commander on the approach of that
decisive day, "if we conquer, we shall make Athens the greatest city of
Greece." [4] A prophecy how well fulfilled! "If God prosper us," might
have been the more appropriate language of our fathers, when they
landed upon this Rock, "if God prosper us, we shall here begin a work
which shall last for ages; we shall plant here a new society, in the
principles of the fullest liberty and the purest religion; we shall
subdue this wilderness which is before us; we shall fill this region of
the great continent, which stretches almost from pole to pole, with
civilization and Christianity; the temples of the true God shall rise,
where now ascends the smoke of idolatrous sacrifice; fields and
gardens, the flowers of summer, and the waving and golden harvest of
autumn, shall spread over a thousand hills, and stretch along a
thousand valleys, never yet, since the creation, reclaimed to the use
of civilized man. We shall whiten this coast with the canvas of a
prosperous commerce; we shall stud the long and winding shore with a
hundred cities. That which we sow in weakness shall be raised in
strength. From our sincere, but houseless worship, there shall spring
splendid temples to record God's goodness; from the simplicity of our
social union, there shall arise wise and politic constitutions of
government, full of the liberty which we ourselves bring and breathe;
from our zeal for learning, institutions shall spring which shall
scatter the light of knowledge throughout the land, and, in time,
paying back where they have borrowed, shall contribute their part to
the great aggregate of human knowledge; and our descendants, through
all generations, shall look back to this spot, and to this hour, with
unabated affection and regard."
A brief remembrance of the causes which led to the settlement of this
place; some account of the peculiarities and characteristic qualities
of that settlement, as distinguished from other instances of
colonization; a short notice of the progress of New England in the
great interests of society, during the century which is now elapsed;
with a few observations on the principles upon which society and
government are established in this country: comprise all that can be
attempted, and much more than can be satisfactorily performed, on the
present occasion.
Of the motives which influenced the first settlers to a voluntary
exile, induced them to relinquish their native country, and to seek an
asylum in this then unexplored wilderness, the first and principal, no
doubt, were connected with religion. They sought to enjoy a higher
degree of religious freedom, and what they esteemed a purer form of
religious worship, than was allowed to their choice, or presented to
their imitation, in the Old World. The love of religious liberty is a
stronger sentiment, when fully excited, than an attachment to civil or
political freedom. That freedom which the conscience demands, and which
men feel bound by their hope of salvation to contend for, can hardly
fail to be attained. Conscience, in the cause of religion and the
worship of the Deity, prepares the mind to act and to suffer beyond
almost all other causes. It sometimes gives an impulse so irresistible,
that no fetters of power or of opinion can withstand it. History
instructs us that this love of religious liberty, a compound sentiment
in the breast of man, made up of the clearest sense of right and the
highest conviction of duty, is able to look the sternest despotism in
the face, and, with means apparently most inadequate, to shake
principalities and powers. There is a boldness, a spirit of daring, in
religious reformers, not to be measured by the general rules which
control men's purposes and actions. If the hand of power be laid upon
it, this only seems to augment its force and its elasticity, and to
cause its action to be more formidable and violent. Human invention has
devised nothing, human power has compassed nothing, that can forcibly
restrain it, when it breaks forth. Nothing can stop it, but to give way
to it; nothing can check it, but indulgence. It loses its power only
when it has gained its object. The principle of toleration, to which
the world has come so slowly, is at once the most just and the most
wise of all principles. Even when religious feeling takes a character
of extravagance and enthusiasm, and seems to threaten the order of
society and shake the columns of the social edifice, its principal
danger is in its restraint. If it be allowed indulgence and expansion,
like the elemental fires, it only agitates, and perhaps purifies, the
atmosphere; while its efforts to throw off restraint would burst the
world asunder.
It is certain, that, although many of them were republicans in
principle, we have no evidence that our New England ancestors would
have emigrated, as they did, from their own native country, would have
become wanderers in Europe, and finally would have undertaken the
establishment of a colony here, merely from their dislike of the
political systems of Europe. They fled not so much from the civil
government, as from the hierarchy, and the laws which enforced
conformity to the church establishment. Mr. Robinson had left England
as early as 1608, on account of the persecutions for non-conformity,
and had retired to Holland. He left England from no disappointed
ambition in affairs of state, from no regrets at the want of preferment
in the church, nor from any motive of distinction or of gain.
Uniformity in matters of religion was pressed with such extreme rigor,
that a voluntary exile seemed the most eligible mode of escaping from
the penalties of non-compliance. The accession of Elizabeth had, it is
true, quenched the fires of Smithfield, and put an end to the easy
acquisition of the crown of martyrdom. Her long reign had established
the Reformation, but toleration was a virtue beyond her conception, and
beyond the age. She left no example of it to her successor; and he was
not of a character which rendered it probable that a sentiment either
so wise or so liberal would originate with him. At the present period
it seems incredible that the learned, accomplished, unassuming, and
inoffensive Robinson should neither be tolerated in his peaceable mode
of worship in his own country, nor suffered quietly to depart from it.
Yet such was the fact. He left his country by stealth, that he might
elsewhere enjoy those rights which ought to belong to men in all
countries. The departure of the Pilgrims for Holland is deeply
interesting, from its circumstances, and also as it marks the character
of the times, independently of its connection with names now
incorporated with the history of empire. [5] The embarkation was
intended to be made in such a manner that it might escape the notice of
the officers of government. Great pains had been taken to secure boats,
which should come undiscovered to the shore, and receive the fugitives;
and frequent disappointments had been experienced in this respect.
At length the appointed time came, bringing with it unusual severity of
cold and rain. An unfrequented and barren heath, on the shores of
Lincolnshire, was the selected spot, where the feet of the Pilgrims
were to tread, for the last time, the land of their fathers. The vessel
which was to receive them did not come until the next day, and in the
meantime the little band was collected, and men and women and children
and baggage were crowded together, in melancholy and distressed
confusion. The sea was rough, and the women and children were already
sick, from their passage down the river to the place of embarkation on
the sea. At length the wished-for boat silently and fearfully
approaches the shore, and men and women and children, shaking with fear
and with cold, as many as the small vessel could bear, venture off on a
dangerous sea. Immediately the advance of horses is heard from behind,
armed men appear, and those not yet embarked are seized and taken into
custody. In the hurry of the moment, the first parties had been sent on
board without any attempt to keep members of the same family together,
and on account of the appearance of the horsemen, the boat never
returned for the residue. Those who had got away, and those who had
not, were in equal distress. A storm, of great violence and long
duration, arose at sea, which not only protracted the voyage, rendered
distressing by the want of all those accommodations which the
interruption of the embarkation had occasioned, but also forced the
vessel out of her course, and menaced immediate shipwreck; while those
on shore, when they were dismissed from the custody of the officers of
justice, having no longer homes or houses to retire to, and their
friends and protectors being already gone, became objects of necessary
charity, as well as of deep commiseration.
As this scene passes before us, we can hardly forbear asking whether
this be a band of malefactors and felons flying from justice. What are
their crimes, that they hide themselves in darkness? To what punishment
are they exposed, that, to avoid it, men, and women, and children, thus
encounter the surf of the North Sea and the terrors of a night storm?
What induces this armed pursuit, and this arrest of fugitives, of all
ages and both sexes? Truth does not allow us to answer these inquiries
in a manner that does credit to the wisdom or the justice of the times.
This was not the flight of guilt, but of virtue. It was an humble and
peaceable religion, flying from causeless oppression. It was
conscience, attempting to escape from the arbitrary rule of the
Stuarts. It was Robinson and Brewster, leading off their little band
from their native soil, at first to find shelter on the shore of the
neighboring continent, but ultimately to come hither; and having
surmounted all difficulties and braved a thousand dangers, to find here
a place of refuge and of rest. Thanks be to God, that this spot was
honored as the asylum of religious liberty! May its standard, reared
here, remain for ever! May it rise up as high as heaven, till its
banner shall fan the air of both continents, and wave as a glorious
ensign of peace and security to the nations!
The peculiar character, condition, and circumstances of the colonies
which introduced civilization and an English race into New England,
afford a most interesting and extensive topic of discussion. On these,
much of our subsequent character and fortune has depended. Their
influence has essentially affected our whole history, through the two
centuries which have elapsed; and as they have become intimately
connected with government, laws, and property, as well as with our
opinions on the subjects of religion and civil liberty, that influence
is likely to continue to be felt through the centuries which shall
succeed. Emigration from one region to another, and the emission of
colonies to people countries more or less distant from the residence of
the parent stock, are common incidents in the history of mankind; but
it has not often, perhaps never, happened, that the establishment of
colonies should be attempted under circumstances, however beset with
present difficulties and dangers, yet so favorable to ultimate success,
and so conducive to magnificent results, as those which attended the
first settlements on this part of the American continent. In other
instances, emigration has proceeded from a less exalted purpose, in
periods of less general intelligence, or more without plan and by
accident; or under circumstances, physical and moral, less favorable to
the expectation of laying a foundation for great public prosperity and
future empire.
A great resemblance exists, obviously, between all the English colonies
established within the present limits of the United States; but the
occasion attracts our attention more immediately to those which took
possession of New England, and the peculiarities of these furnish a
strong contrast with most other instances of colonization.