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.[1] 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. In a celebrated instance, those who asserted

this power in Parliament vindicated its exercise only in a case in which

it could be shown, 1st. That the charter in question was a charter of

political power; 2d. That there was a great and overruling state

necessity, justifying the violation of the charter; 3d. That the charter

had been abused and justly forfeited.[2] The bill affecting this charter

did not pass. Its history is well known. The act which afterwards did

pass, passed _with the assent of the corporation_. Even in the worst

times, this power of Parliament to repeal and rescind charters has not

often been exercised. The illegal proceedings in the reign of Charles

the Second were under color of law. Judgments of forfeiture were

obtained in the courts. Such was the case of the _quo warranto_ against

the city of London, and the proceedings by which the charter of

Massachusetts was vacated.

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.[3] 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.

"Whatever might have been the notion in former times," says Lord

Mansfield, "it is most certain now that the corporations of the

universities are lay corporations; and that the crown cannot take away

from them any rights that have been formerly subsisting in them under

old charters or prescriptive usage."[4] After forfeiture duly found, the

king may re-grant the franchises; but a grant of franchises already

granted, and of which no forfeiture has been found, is void.

Corporate franchises can only be forfeited by trial and judgment.[5] In

case of a new charter or grant to an existing corporation, it may accept

or reject it as it pleases.[6] It may accept such part of the grant as

it chooses, and reject the rest.[7] In the very nature of things, a

charter cannot be forced upon any body. No one can be compelled to

accept a grant; and without acceptance the grant is necessarily void.[8]

It cannot be pretended that the legislature, as successor to the king in

this part of his prerogative, has any power to revoke, vacate, or alter

this charter. If, therefore, the legislature has not this power by any

specific grant contained in the Constitution; nor as included in its

ordinary legislative powers; nor by reason of its succession to the

prerogatives of the crown in this particular, on what ground would the

authority to pass these acts rest, even if there were no prohibitory

clauses in the Constitution and the Bill of Rights?

But 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.[9] 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."[10] 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. A devise to a college, for their benefit, is a laudable

charity, and deserves encouragement."[11]

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."[12] 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.[13] 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.[14] 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.[15] 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 imposes 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.[16]

The leading case on this subject is _Phillips v. Bury_.[17] 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, copied from his own manuscript, is found in 2 Term Reports.

346. The following is an extract:--

"That we may the better apprehend the nature of a visitor, we are

to consider that there are in law two sorts of corporations

aggregate; such as are for public government, and such as are for

private charity. Those that are for the public government of a

town, city, mystery, or the like, being for public advantage, are

to be governed according to the laws of the land. If they make any

particular private laws and constitutions, the validity and justice

of them is examinable in the king's courts. Of these there are no

particular private founders, and consequently no particular

visitor; there are no patrons of these; therefore, if no provision

be in the charter how the succession shall continue, the law

supplieth the defect of that constitution, and saith it shall be by

election; as mayor, aldermen, common council, and the like. But

_private_ and particular corporations for charity, founded and

endowed by private persons, are subject to the private government

of those who erect them; and therefore, if there be no visitor

appointed by the founder, the law appoints the founder and his

heirs to be visitors, who are to act and proceed according to the

particular laws and constitutions assigned them by the founder. It

is now admitted on all hands that the founder is patron, and, as

founder, is visitor, if no particular visitor be assigned; so that

patronage and visitation are necessary consequents one upon

another. For this visitatorial power was not introduced by any

canons or constitutions ecclesiastical (as was said by a learned

gentleman whom I have in my eye, in his argument of this case); it

is an appointment of law. It ariseth from the property which the

founder had in the lands assigned to support the charity; and as he

is the author of the charity, the law gives him and his heirs a

visitatorial power, that is, an authority to inspect the actions

and regulate the behavior of the members that partake of the

charity. For it is fit the members that are endowed, and that have

the charity bestowed upon them, should not be left to themselves,

but pursue the intent and design of him that bestowed it upon them.

_Now, indeed, where the poor, or those that receive the charity,

are not incorporated, but there are certain trustees who dispose of

the charity, there is no visitor, because the interest of the

revenue is not vested in the poor that have the benefit of the

charity, but they are subject to the orders and directions of the

trustees._ But where they who are to enjoy the benefit of the

charity are incorporated, there to prevent all perverting of the

charity, or to compose differences that may happen among them,

there is by law a visitatorial power; and it being a creature of

the founder's own, it is reason that he and his heirs should have

that power, unless by the founder it is vested in some other. Now

there is no manner of difference between a college and a hospital,

except only in degree. A hospital is for those that are poor, and

mean, and low, and sickly; a college is for another sort of

indigent persons; but it hath another intent, to study in and breed

up persons in the world that have no otherwise to live; but still

it is as much within the reasons as hospitals. And if in a hospital

the master and poor are incorporated, it is a college having a

common seal to act by, although it hath not the name of a college

(which always supposeth a corporation), because it is of an

inferior degree; and in the one case and in the other there must be

a visitor, either the founder and his heirs or one appointed by

him; and both are eleemosynary."

Lord Holt concludes his whole argument by again repeating, 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.[18]

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 this absolute and conclusive power of visitors

is no more than the law hath appointed in other cases, upon commissions

of charitable uses: that the common law, and not any ecclesiastical

canons, do place the power of visitation in the founder and his heirs,

_unless he settle it upon others_: that although corporations for public

government be subject to the courts of Westminster Hall, which have no

particular or special visitors, yet corporations for charity, founded

and endowed by private persons, are subject to the rule and government

of those that erect them; but where the persons to whom the charity is

given are not incorporated, there is no such visitatorial power, because

the interest of the revenue is not invested in them; but where they are,

the right of visitation ariseth from the foundation, and the founder may

convey _it to whom and in what manner he pleases; and the visitor acts

as founder, and by the same authority which he had, and consequently is

no more accountable than he had been_: that the king by his charter can

make a society to be incorporated so as to have the rights belonging to

persons, as to legal capacities: 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."[19]

These opinions received the sanction of the House of Lords, and they

seem to be settled and undoubted law. Where there is a charter, vesting

proper powers in trustees, or governors, they are visitors; and there is

no control in any body else; except only that the courts of equity or of

law will interfere so far as to preserve the revenues and prevent the

perversion of the funds, and to keep the visitors within their

prescribed bounds. "If there be a charter with proper powers, the

charity must be regulated in the manner prescribed by the charter. There

is no ground for the controlling interposition of the courts of

chancery. The interposition of the courts, therefore, in those instances

in which the charities were founded on charters or by act of Parliament,

and a visitor or governor and trustees appointed, must be referred to

the general jurisdiction of the courts in all cases in which a trust

conferred appears to have been abused, and not to an original right to

direct the management of the charity, or the conduct of the governors or

trustees."[20] "The original of all _visitatorial_ power is the property

of the donor, and the power every one has to dispose, direct, and

regulate his own property; like the case of patronage; _cujus est dare_,

&c. Therefore, if either the crown or the subject creates an

eleemosynary foundation, and vests the charity in the persons who are to

receive the benefit of it, since a contest might arise about the

government of it, the law allows the founder or his heirs, or the person

specially appointed by him to be visitor, to determine concerning his

own creature. If the charity is not vested in the persons who are to

partake, but in trustees for their benefit, no visitor can arise by

implication, but the trustees have that power."[21]

"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."[22]

"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. If he makes a general visitor (as by the general words _visitator

sit_), the person so constituted has all incidental power; but he may be

restrained as to particular instances. The founder may appoint a special

visitor for a particular purpose, and no further. The founder may make a

general visitor; and yet appoint an inferior particular power, to be

executed without going to the visitor in the first instance."[23] And

even if the king be founder, if he grant a charter, incorporating

trustees and governors, _they are visitors_, and the king cannot

visit.[24] A subsequent donation, or ingrafted fellowship, falls under

the same general visitatorial power, if not otherwise specially

provided.[25]

In New England, and perhaps throughout the United States, eleemosynary

corporations have been generally established in the latter mode; that

is, by incorporating governors, or trustees, and vesting in them the

right of visitation. Small variations may have been in some instances

adopted; as in the case of Harvard College, where some power of

inspection is given to the overseers, but not, strictly speaking, a

visitatorial power, which still belongs, it is apprehended, to the

fellows or members of the corporation. In general, there are many

donors. A charter is obtained, comprising them all, or some of them, and

such others as they choose to include, with the right of appointing

successors. They are thus the visitors of their own charity, and appoint

others, such as they may see fit, to exercise the same office in time to

come. All such corporations are private. 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,[26]

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, on 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.[27] 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.

If the doctrine laid down by Lord Holt, and the House of Lords, in

_Phillips v. Bury_, and recognized and established in all the other

cases, be correct, the property of this college was private property; it

was vested in the trustees by the charter, and to be administered by

them, according to the will of the founder and donors, as expressed in

the charter. They were also visitors of the charity, in the most ample

sense. They had, therefore, as they contend, privileges, property, and

immunities, within the true meaning of the Bill of Rights. They had

rights, and still have them, which they can assert against the

legislature, as well as against other wrong-doers. It makes no

difference, that the estate is holden for certain trusts. The legal

estate is still theirs. They have a right in the property, and they

have a right of visiting and superintending the trust; and this is an

object of legal protection, as much as any other right. 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. But

they are terms of legal signification, and very properly used in the

charter. They are equivalent with _franchises_. Blackstone says that

_franchise_ and _liberty_ are used as synonymous terms. And after

enumerating other liberties and franchises, he says: "It is likewise a

franchise for a number of persons to be incorporated and subsist as a

body politic, with a power to maintain perpetual succession and do other

corporate acts; and each individual member of such a corporation is also

said to have a franchise or freedom."[28]

_Liberties_ is the term used in Magna Charta as including franchises,

privileges, immunities, and all the rights which belong to that class.

Professor Sullivan says, the term signifies the "_privileges_ that some

of the subjects, whether single persons or bodies corporate, have above

others by the lawful grant of the king; as the chattels of felons or

outlaws, and the lands _and privileges of corporations_."[29]

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.[30]

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.[31]

That was an action against a returning officer for refusing the

plaintiff's vote, in the election of a member of Parliament. Three of

the judges of the King's Bench held, that the action could not be

maintained, because, among other objections, "it was not any matter of

profit, either _in presenti_, or _in futuro_." It would not enrich the

plaintiff _in presenti_, nor would it _in futuro_ go to his heirs, or

answer to pay his debts. But Lord Holt and the House of Lords were of

another opinion. The judgment of the three judges was reversed, and the

doctrine they held, 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."[32]

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.

In _University v. Foy_,[33] the Supreme Court of North Carolina

pronounced unconstitutional and void a law repealing a grant to the

University of North Carolina, although that university was originally

erected and endowed by a statute of the State. That case was a grant of

lands, and the court decided that it could not be resumed. This is the

grant of a power and capacity to hold lands. Where is the difference of

the cases, upon principle?

In _Terrett v. Taylor_,[34] this court decided that a legislative grant

or confirmation of lands, for the purposes of moral and religious

instruction, could no more be rescinded than other grants. The nature of

the use was not holden to make any difference. A grant to a parish or

church, for the purposes which have been mentioned, cannot be

distinguished, in respect to the title it confers, from a grant to a

college for the promotion of piety and learning. To the same purpose may

be cited the case of _Pawlett v. Clark_. The State of Vermont, by

statute, in 1794, granted to the respective towns in that State certain

glebe lands lying within those towns for the sole use and support of

religious worship. In 1799, an act was passed to repeal the act of 1794;

but this court declared, that the act of 1794, "so far as it granted the

glebes to the towns, could not afterwards be repealed by the

legislature, so as to divest the rights of the towns under the

grant."[35]

It will be for the other side to show that the nature of the use decides

the question whether the legislature has power to resume its grants. It

will be for those who maintain such a doctrine to show the principles

and cases upon which it rests. It will be for them also to fix the

limits and boundaries of their doctrine, and to show what are and what

are not such uses as to give the legislature this power of resumption

and revocation. And to furnish an answer to the cases cited, it will be

for them further to show that a grant for the use and support of

religious worship stands on other ground than a grant for the promotion

of piety and learning.

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."[36]

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."[37] That all such laws are

retrospective was decided also in the case of _Dash v. Van Kleek_,[38]

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.'[39] 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 lawgiver cannot alter his mind to the prejudice of a vested

right. 'Nemo potest mutare concilium suum in alterius injuriam.'[40]

This maxim of Papinian is general in its terms, but Dr. Taylor[41]

applies it directly as a restriction upon the lawgiver, and a

declaration in the Code leaves no doubt as to the sense of the civil

law. 'Leges et constitutiones futuris certum est dare formam negotiis,

non ad facta praeterita revocari, nisi nominatim, et de praeterito

tempore, et adhuc pendentibus negotiis cautum sit.'[42] This passage,

according to the best interpretation of the civilians, relates not

merely to future suits, but to future, as contradistinguished from past,

contracts and vested rights.[43] It is indeed admitted that the prince

may enact a retrospective law, provided it be done _expressly_; for the

will of the prince under the despotism of the Roman emperors was

paramount to every obligation. Great latitude was anciently allowed to

legislative expositions of statutes; for the separation of the judicial

from the legislative power was not then distinctly known or prescribed.

The prince was in the habit of interpreting his own laws for particular

occasions. This was called the 'Interlocutio Principis'; and this,

according to Huber's definition, was, 'quando principes inter partes

loquuntur et jus dicunt.'[44] No correct civilian, and especially no

proud admirer of the ancient republic (if any such then existed), could

have reflected on this interference with private rights and pending

suits without disgust and indignation; and we are rather surprised to

find that, under the violent and arbitrary genius of the Roman

government, the principle before us should have been acknowledged and

obeyed to the extent in which we find it. The fact shows that it must be

founded in the clearest justice. Our case is happily very different from

that of the subjects of Justinian. With us the power of the lawgiver is

limited and defined; the judicial is regarded as a distinct, independent

power; private rights are better understood and more exalted in public

estimation, as well as secured by provisions dictated by the spirit of

freedom, and unknown to the civil law. Our constitutions do not admit

the power assumed by the Roman prince, and the principle we are

considering is now to be regarded as sacred."

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? Let this

question be answered by the text of Blackstone. "And first it (i.e. law)

is a _rule_: not a transient, sudden order from a superior to or

concerning a particular person; but something permanent, uniform, and

universal. Therefore a particular act of the legislature to confiscate

the goods of Titius, or to attaint him of high treason, does not enter

into the idea of a municipal law; for the operation of this act is spent

upon Titius only, and has no relation to the community in general; it is

rather a sentence than a law."[45] Lord Coke is equally decisive and

emphatic. Citing and commenting on the celebrated twenty-ninth chapter

of Magna Charta, he 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."[46] 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. "Is that the law of the land," said Mr. Burke, "upon which, if

a man go to Westminster Hall, and ask counsel by what title or tenure he

holds his privilege or estate _according to the law of the land_, he

should be told, that the law of the land is not yet known; that no

decision or decree has been made in his case; that when a decree shall

be passed, he will then know _what the law of the land is_? Will this be

said to be the law of the land, by any lawyer who has a rag of a gown

left upon his back, or a wig with one tie upon his head?"

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_."[47]

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.

Of all the attempts of James the Second to overturn the law, and the

rights of his subjects, none was esteemed more arbitrary or tyrannical

than his attack on Magdalen College, Oxford; and yet that attempt was

nothing but to put out one president and put in another. The president

of that college, according to the charter and statutes, is to be chosen

by the fellows, who are the corporators. There being a vacancy, the king

chose to take the appointment out of the hands of the fellows, the legal

electors of a president, into his own hands. He therefore sent down his

mandate, commanding the fellows to admit for president a person of his

nomination; and, inasmuch as this was directly against the charter and

constitution of the college, he was pleased to add a _non obstante_

clause of sufficiently comprehensive import. The fellows were commanded

to admit the person mentioned in the mandate, "any statute, custom, or

constitution to the contrary notwithstanding, wherewith we are

graciously pleased to dispense, in this behalf." The fellows refused

obedience to this mandate, and Dr. Hough, a man of independence and

character, was chosen president by the fellows, according to the charter

and statutes. The king then assumed the power, in virtue of his

prerogative, to send down certain commissioners to turn him out; which

was done accordingly; and Parker, a creature suited to the times, put in

his place. Because the president, who was rightfully and legally

elected, _would not deliver the keys, the doors were broken open_. "The

nation as well as the university," says Bishop Burnet,[48] "looked on

all these proceedings with just indignation. It was thought an open

piece of robbery and burglary when men, authorized by no legal

commission, came and forcibly turned men out of their possession and

freehold." Mr. Hume, although a man of different temper, and of other

sentiments, in some respects, than Dr. Burnet, speaks of this arbitrary

attempt of prerogative in terms not less decisive. "The president, and

all the fellows," says he, "except two, who complied, were expelled the

college, and Parker was put in possession of the office. This act of

violence, of all those which were committed during the reign of James,

is perhaps the most illegal and arbitrary. When the dispensing power was

the most strenuously insisted on by court lawyers, it had still been

allowed that the statutes which regard private property could not

legally be infringed by that prerogative. Yet, in this instance, it

appeared that even these were not now secure from invasion. The

privileges of a college are attacked; men are illegally dispossessed of

their property for adhering to their duty, to their oaths, and to their

religion."

This measure King James lived to repent, after repentance was too late.

When the charter of London was restored, and other measures of violence

were retracted, to avert the impending revolution, the expelled

president and fellows of Magdalen College were permitted to resume their

rights. It is evident that this was regarded as an arbitrary

interference with private property. Yet private property was no

otherwise attacked than as a person was appointed to administer and

enjoy the revenues of a college in a manner and by persons not

authorized by the constitution of the college. A majority of the members

of the corporation would not comply with the king's wishes. A minority

would. The object was therefore to make this minority a majority. To

this end the king's commissioners were directed to interfere in the

case, and they united with the two complying fellows, and expelled the

rest; and thus effected a change in the government of the college. The

language in which Mr. Hume and all other writers speak of this abortive

attempt of oppression, shows that colleges were esteemed to be, as they

truly are, private corporations, and the property and privileges which

belong to them _private_ property and _private_ privileges. Court

lawyers were found to justify the king in dispensing with the laws; that

is, in assuming and exercising a legislative authority. But no lawyer,

not even a court lawyer, in the reign of King James the Second, as far

as appears, was found to say that, even by this high authority, he could

infringe the franchises of the fellows of a college, and take away their

livings. Mr. Hume gives the reason; it is, that such franchises were

regarded, in a most emphatic sense, as _private property_.[49]

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 contacts."

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."[50]

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_[51] 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 has also been decided, that a grant by a State before the Revolution

is as much to be protected as a grant since.[52] 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_,[53] 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_,[54] 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."[55]

In all cases relative to charters, the acceptance of them is uniformly

alleged in the pleadings. This shows the general understanding of the

law, that they are grants or contracts; and that parties are necessary

to give them force and validity. In _King v. Dr. Askew_,[56] it is said:

"The crown cannot oblige a man to be a corporator, without his consent;

he shall not be subject to the inconveniences of it, without accepting

it and assenting to it." These terms, "acceptance" and "assent," are the

very language of contract. In _Ellis v. Marshall_,[57] it was expressly

adjudged that the naming of the defendant among others, in an act of

incorporation, did not of itself make him a corporator; and that his

assent was necessary to that end. The court speak of the act of

incorporation as a grant, and observe: "That a man may refuse a grant,

whether from the government or an individual, seems to be a principle

too clear to require the support of authorities." But Justice Buller, in

_King v. Pasmore_, furnishes, if possible, a still more direct and

explicit authority. Speaking of a corporation for government, he says:

"I do not know how to reason on this point better than in the manner

urged by one of the relator's counsel; who considered the grant of

incorporation to be a compact between the crown and a certain number of

the subjects, the latter of whom undertake, in consideration of the

privileges which are bestowed, to exert themselves for the good

government of the place." This language applies with peculiar propriety

and force to the case before the court. It was in consequence of the

"privileges bestowed," that Dr. Wheelock and his associates undertook to

exert themselves for the instruction and education of youth in this

college; and it was on the same consideration that the founder endowed

it with his property.

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_,[58] 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."[59]

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

nourished 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? quem

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."

[Footnote 1: Calder et ux. v. Bull, 3 Dallas, 386.]

[Footnote 2: Annual Register, 1784, p. 160; Parl. Reg. 1783; Mr. Burke's

Speech on Mr. Fox's East India Bill, Burke's Works, Vol. II. pp. 414,

417, 467, 468, 486.]

[Footnote 3: 1 Black. 472, 473.]

[Footnote 4: 3 Burr. 1656.]

[Footnote 5: King v. Pasmore, 3 Term Rep. 244.]

[Footnote 6: King v. Vice-Chancellor of Cambridge, 3 Burr. 1656; 3 Term

Rep. 240,--Lord Kenyon.]

[Footnote 7: 3 Burr. 1661, and King v. Pasmore, _ubi supra_.]

[Footnote 8: Ellis v. Marshall, 2 Mass. Rep. 277; 1 Kyd on Corporations,

65, 66.]

[Footnote 9: 1 Wooddeson, 474; 1 Black. 467.]

[Footnote 10: 1 Black. 471.]

[Footnote 11: Ves. 537.]

[Footnote 12: 9 Ves. Jun. 405.]

[Footnote 13: 1 Wood. 474.]

[Footnote 14: 1 Black. 471.]

[Footnote 15: 2 Term Rep. 350, 351.]

[Footnote 16: 1 Black. 480.]

[Footnote 17: 1 Lord Raymond, 5; Comb. 265; Holt, 715; 1 Shower. 360; 4

Mod. 106; Skinn. 447.]

[Footnote 18: 1 Lord Raymond, 9.]

[Footnote 19: 1 Burn's Eccles. Law, 443, Appendix No. 3]

[Footnote 20: 2 Forb. 205, 206.]

[Footnote 21: Green v. Rutherforth, 1 Ves. 472, per Lord Hardwicke.]

[Footnote 22: Attorney-General v. Foundling Hospital, 2 Ves. Jun. 47.

See also 2 Kyd on Corporations, 195; Cooper's Equity Pleading, 292.]

[Footnote 23: St. John's College, Cambridge, v. Todington, 1 Burr. 200.]

[Footnote 24: Attorney-General v. Middleton, 2 Ves. 328.]

[Footnote 25: Green v. Rutherforth, _ubi supra_; St. John's College v.

Todington, _ubi supra_.]

[Footnote 26: 4 Term Rep. 233.]

[Footnote 27: Black., _ubi supra_.]

[Footnote 28: 2 Black. Com. 37.]

[Footnote 29: Sull. 41st Lect.]

[Footnote 30: Phillips v. Bury, and Green v. Rutherforth, _ubi supra_.

See also 2 Black. 21.]

[Footnote 31: Ashby v. White, 2 Lord Raymond, 938.]

[Footnote 32: Attorney-General v. Pearce, 2 Atk. 87.]

[Footnote 33: 2 Haywood's Rep.]

[Footnote 34: 9 Cranch, 43.]

[Footnote 35: 9 Cranch. 292.]

[Footnote 36: 3 Dallas, 394.]

[Footnote 37: Society v. Wheeler, 2 Gal. 103.]

[Footnote 38: 7 Johnson's Rep. 477.]

[Footnote 39: Bracton, Lib. 4, fol. 228. 2 Inst. 292.]

[Footnote 40: Dig. 50. 17. 75.]

[Footnote 41: Elements of the Civil Law, p. 168.]

[Footnote 42: Cod. 1. 14. 7.]

[Footnote 43: Perezii Praelect. h. t.]

[Footnote 44: Praelect. Juris. Civ., Vol. II. p. 545.]

[Footnote 45: 1 Black. Com. 44.]

[Footnote 46: Coke, 2 Inst. 46.]

[Footnote 47: Lord Raymond, 952.]

[Footnote 48: History of his own Times, Vol. III. p. 119.]

[Footnote 49: See a full account of this case in State Trials, 4th ed.,

Vol. IV. p. 262.]

[Footnote 50: The Federalist, No. 44, by Mr. Madison.]

[Footnote 51: 6 Cranch, 87.]

[Footnote 52: New Jersey v. Wilson, 7 Cranch, 164.]

[Footnote 53: 3 Burr. 1656.]

[Footnote 54: 3 Term Rep. 240.]

[Footnote 55: See also 1 Kyd on Corp. 65.]

[Footnote 56: 4 Burr. 2200.]

[Footnote 57: 2 Mass. Rep. 269.]

[Footnote 58: 6 Term Rep. 277.]

[Footnote 59: See also Ex parte Bolton School, 2 Brown's Ch. Rep. 662.]