2. Because they are repugnant to the Constitution of the United States.

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.

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