THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES REPORT OF THE CASE OF THE TRUSTEES OF DARTMOUTH COLLEGE AGAINST WILLIAM H. WOODWARD. ARGUED AND DETERMINED IN THE SUPERIOR COURT OF JUDICATURE OF THE STATE OF NEW-HAMPSHIRE, NOVEMBER 1817. AND ON ERROR IN THE SUPREME COURT OF THE UNITED STATES, FEBRUARY 1819* BY TIMOTHY FARRAR COUNSELLOR AT LAW PORTSMOUTH, JV. H. PUBLISHED BY JOHN W. FOSTER, ANJI WEST, RICHARDSON, AND LORD, BOSTON T. '. WILLIAMS. I'KI.YTKH. F.XKTF.R. iHSTRICT Ur >KW-HAMP»lintr., Til \\ It . - BE IT REMEMBERED, That on the 9th day of August, 1819, and in tin: ibrty-third ye.-.r . if tin Independence of the United States uf America, TIMOTHY FARRAR, of the said district. hath deposited in this office the titleof a book, the right whereof he claims as Author and Proprii tor in the words following, TO WIT :— " Report of the case of the Trustees of Dartmouth College against William H. Woodward. - Argued and determined in the Superior Court of Judicature, el' the State of New-Hampshin . November, 1817. And on Error in the Supreme Court of the United States, February 181'j, By TIMOTHY FARRAR, Counsellor at Law." In conformity to the act of the Congress of the United States, entitled, "An Act for the en- couragement of learning, by securing the copies of Maps, Charts, ami Hunks, to the Authors and Proprietors of such copies, during the times therein mentioned. PEYTON R. FREEMAN, Clerk of the District of New- Hampshire. A true copy of Record, Auret, PEYTON R, i KEEMAN, Clerk. ADVERTISEMENT. • L [ion the decision ol the ',■■ stio siuvolved i:i this case, depended the t ivlo lo ihe wholi' properly and eorpn 'a e .raneliisi's of a useful and respectable literary insti- tution' Its impor ■-..:.<■■■ ''it re fore to that seminary alone, would seem to require the publication of if< ii report of tin- arguments and reasonings, v. Iiieh 'preceded and led to it. Hu' tiie impn.-; mee ofthe decision is not limi.ed to a single institu- tion, h is perhaps of equal importance to every o'ln r literary and charitable cor- poration of our country. They are all, or nearly all, ofthe sa.ne nature, and hold tin ir propert) anil franchises by the same tenure. Whether this be a permanent, vested interest, or a mere estate at the will of the legislative body, is the general question here discussed and si tiled. The singular ability and success, with which evcrv pat t of tin s.ibjeet has been investigati d and developed, not less than its gen- eral mil paitici.lr.r importance, have given an interest to the cause, that would hardiv be satisfied with any report, which should fall short of giving its entire jn- dici..i history. Mr. Wheaton, the learned reporter of the decisions of the Supreme Court ofthe I "niiedSt ites, v. ill undoubtedly give, in his valuable work, a condensed account of ease, necessarily omitting all that [>art ofthe' discussion, which took place in ' • state court. This case will however form but a small part oft ie volume, and £2 the volume itself will form the fourth of a series, the size' and expense of which will ^ exclude i! from the libraries of many, who would bo desirous to St e a more e.nlnrg- . d aecou ' .1'. thi' case. — ^ tor these reaj>'ias the Iteporter trusts he has not rendered an unacceptable ser- 0^ \i< ■ to the prof -i<*n, in presenting them with this volume. Tli>: arguments and -J opi. line. s have in mo-1 instances been taken from the original minutes of their uu- gU tho;'"!, and con-' i ted l;v then. '-elves. To their goodness in this respect, the Kepori- * er '-la 'iie rmbrac s this otivorlunitv of nublicklv acknow leik.ee; ins obligations- In o - ' ' ' ' ^ one or i • n in I .■■ ci s, w here the counsel could not render the s. assistance, then ,e,, ■ ie ■ n carefullv prepared from notes taken at the time they were I'l-livi n n Tin- 1 1 rs relating to this oase.w uich are thrown into the Apia ndiv, are all ti li- lt . . in. :,w disclosing anv lei;al vie vi s originally i nlel l:.ined ol the constitutional this corpor.it ion at the time and subsequent io lii<- passing of the legislative * • Tin- oth r papers in tin: Appendix, it is hoped v. ill not he '.hou r ,hl to i']tin!i J ! h tlir vi, lee ofthe' publication. — v •'<,<■ H'tiuh, .it-hu, i-rt. CONTENTS. PAGE. DECLARATION 1 Picas I Special Verdict 1 Charter of 1709 2 Act of the Legislature of. Tune 27th, 1816 18 December 18, 1816 23 December 26th, 1816 25 Arguments in the Superior Court of New-Hampshire. — Mr. Mason ------- ... 28 Mr. Sullivan 70 Mr. Smith 104 Mr.Bartlett 161 Mr. Webster 206 Opinion of the Superior Court of New-Hampshire 206 Judgment of the Superior Court of New -Hampshire 235 Writ of Error 235 Assignment of Errors ----.--»-- 235 Agreement of the Parties ----- 237 Arguments in the Supreme Court of the United States- Mr. Webster .-- 238 Mr. Holmes 284 Mr. Wirt 288 Mr. Elopkinson -- 295 Opinions of the Supreme Court of the United States. — Mr. Chief Justice Marshall 306 Mr. Justice Washington 33L Mr. Justice Story 340 Judgment of the Supreme Court of the United States 377 Appendix 379 Vote of the Trustees not accepting the Act of June 27, 1816 ... 384 Pn>test of the Minority of the House of Representatives - - - - 389 Extract from Bishop Stillingfleet 393 Harvard College - - 397 Yale College 401 REPORT, $c. THE action, the Trustees of Dartmouth College vs. William H. Woodward, was commenced at the Court of Common Pleas, Grafton County, February term 1817. The writ was sued out on the 8tb, and Berved on the 10th of the same month. The declaration was Trover for two Books of Records, purporting to contain the records of all the do- ings and proceedings of the Trustees of Dartmouth College from the organization of the corporation until the 7th day of October 1816, of the value of $5000 — the original Charter or Letters patent constituting the College, of the value of $10,000— the Common Seal of the value of $1000— and four Volumes or Books of account purporting to contain the charg- es and accounts in favour of the College of the value of $10,000. The conversion was alleged to have been made, on the 7th day of October 1816 ; and the plaintiffs damag- es laid at $50,000. By consent of parties, the proper pleas were filed for carrying the cause directly to the Superior Court by appeal. It was entered at the Superior Court, Grafton County, May term 1817, when the former pleas being wav- ed, the defendant pleaded the general issue, which was join- ed by the plaintiffs. The facts in the case were then agreed upon by the parties, drawn up in the form of a special ver- dict and found by the jury as follows. The said Jurors, upon their oath, say, that his Majesty George the Third, King of Great Britain, &c. issued his Let- 2 2 « DARTMOUTH COIXRGE VS. WOODWARD." ters patent under the publick seal of the Province, now State of New-Hampshire, bearing date the 13th day of December in the 10th year of his reign, and in the year of our Lord one thousand seven hundred and sixty-nine, in the words following : — GEORGE the THIRD, by the grace of GOD, of Great- Britain, France, and Ireland KING, Defender of the Faith, and so forth. To all to whom these presents shall come.. ..GREETING. "WHEREAS it hath been represented to our trusty and well beloved John Wentworth,Esq. Governor and comman- der in chief, in and over, our Province of New-Hampshire in New-England in America, that the Reverend Eleazar Wheelock of Lebanon in the colony of Connecticut in New- England aforesaid, now Doctor in Divinity, did, on or about the year of our Lord one thousand seven hundred and fifty- four, at his own expense, on his own estate and plantation set on foot an Indian Charity School, and for several years through the assistance of well disposed persons in America, clothed, maintained and educated a number of the children of the Indian natives, with a view to their carrying the gos- pel in their own language, and spreading the knowledge of the great Redeemer, among their savage tribes, and hath actually employed a number of them as missionaries and school masters in the wilderness for that purpose : and by the blessing of God upon the endeavours of said Wheel- ock, the design became reputable among the Indians, inso- much that a larger number desired the education of their children in said school, and were also disposed to receive missionaries and school masters in the wilderness, more than could be supported by the charitable contributions in these American colonies. Whereupon the said Eleazar Wheelock thought it ex- pedient, that endeavours should be used to raise contri- butions from well disposed persons in England, for the SUPERIOR COURT, NEW-HAMPSHIRE. o carrying on and extending said undertaking; and for that purpose the said Eleazar Wheelock requested the Rev. Nathaniel Whitaker, now Doctor in Divinity, to go over to England for that purpose, and sent over with him tlie Rev. Samson Occom, an Indian Minister, who had been educated by the said Wheelock. And to enable the said Whitaker to the more successful performance of said work, on which he was sent, said Wheelock gave him a full power of allorney, by which said Whitaker solicited those worthy and generous contributors to the charity, viz. The Right Honourable William, Earl of Dartmouth, the Hon- ourable Sir Sydney Stafford Smythe, Knight, one of the Ba- rons of his Majesty's court of Exchequer, John Thornton of Clapham in the County of Surrey, Esquire, Samuel Roffey of Lincoln's inn-fields, in the County of Middlesex, Esquire, Charles Hardy of the parish of Saint Mary-le-bonne in said County, Esquire, Daniel West of Christ's Church Spital- fields in the county aforesaid, Esquire, Samuel Savage of the same place, Gentleman, Josiah Roberts of the Parish of Saint Edmund the King Lombard Street London, Gentleman, and Robert Keen of the Parish of Saint Batolph Aldgate London Gentleman, to receive the several sumi of money, which should be contributed, and to be Trustees for the contribu- tors to such charity, which they cheerfully agreed to. Whereupoa the said Whitaker did, by virtue of said power of attorney constitute and appoint the said Earl of Dartmouth, Sir Sydney Stafford Smythe, John Thornton, Samuel Roffey, Charles Hardy and Daniel West, Esquires, and Samuel Savage, Josiah Roberts and Robert Keen, Gen- tlemen, to be Trustees ol the money, which had then been contributed, and which should by his means be contributed for said purpose : which trust they have accepted, as bv their engrossed declaration of the same under their hands and seals well executed, fully appears, and the same has also been ratified, by a deed of trust well executed, by fh<" *aid Wheelock. 4 "DARTMOUTH COLLEGE VS. WOODWARD." And the said Wheelock further represents, that he has, by power of attorney, for many weighty reasons, given full power to the said Trustees to fix upon and determine the place for said school, most subservient to the great end in view : and to enable them understand- ingly to give the preference, the said Wheelock has laid before the said Trustees the several otters, which have been generously made in the several governments in America, to encourage and invite the settlement of said school among them for their own private Emolument and the increase of learning in their respective places, as well as for the furtherance of the general design in view. And whereas a large number of the proprietors of lands in the western part of this our Province of New-Hampshire, animated and excited thereto by the generous example of his Excellency their governor, and by the liberal contributions of many noblemen and gentlemen in England, and especial- ly by the consideration, that such a situation would be as convenient as any for carrying on the great design among the Indians ; and also considering, that without the least im- pediment to the said design, the same school may be en- larged and improved to promote learning among the Eng- lish, and be a means to supply a great number of churches and congregations, which are likely soon to be formed in that new country, with a learned and orthodox ministry ; they the said proprietors have promised large tracts of land, for the uses aforesaid, provided the school shall be settled in the western part of our said Province. And they the said Right Honourable, Honourable and worthy Trustees before mentioned, having maturely considered the reasons and arguments, in favour of the several places proposed, have given the preference to the western part of our said Province lying on Connecticut river, as a situation most convenient for said school. And the said Wheelock has further represented a ne- cessity of a legal incorporation, in order to the safety and SUPERIOR COURT, NEW-HAMPSHIRE. 5 well being of said seminary, and its being capable of the tenure and disposal of lands and bequests for the use of the same. And the said Wheelock has also represented, that for many weighty reasons, it will be expedient, at least in the infancy of said institution, or till it can be accommodated in that new country, and he and his friends be able to re- move and settle by and round about it, that the gentlemen, whom he has already nominated in his last Will, (which he has transmitted to the aforesaid gentlemen of the trust in England,) to be Trustees in America, should be of the cor- poration now proposed. And also as there are already large collections for said school, in the hands of the aforesaid gentlemen of the trust in England, and all reason to be- lieve, from their singular wisdom, piety, and zeal to promote the Redeemer's cause, (which has already procured for them the utmost confidence of the kingdom,) we may ex- pect they will appoint successors in time to come, who will be men of the same spirit, whereby great good may and will accrue many ways to the institution, and much be done by their example and influence to encourage and facilitate the whole design in view : for which reason said Wheelock de- sires, that the Trustees aforesaid may be vested with all that power therein, which can consist with their distance from the same. KNOW YE THEREFORE, That We, considering the premises, and being willing to encourage the laudable and charitable design of spreading christian knowledge among the savages of our American wilderness, and also that the best means of education be established in our Prov- ince of New-Hampshire, for the benefit of said Province, do, of our special grace, certain knowledge, and mere mo- tion, by and with the advice of our Council for said Prov- ince, by these presents, will, ordain, grant, and constitute, that there be a College erected in our said Province of 6 « DARTMOUTH COLLEGE VS. WOODWARD." New-Hampshire, by the name of DARTMOUTH COL- LEGE, for the education and instruction of youth of the Indian tribes in this land, in reading, writing, and all parts of learning, which shall appear necessary and expedient, for civilizing and christianizing children of pagans, as well as in all liberal arts and sciences, and also of English youth and any others. And theTrustees of said College may and shall be one body corporate and politick, in deed, action, and name, and shall be called, named and distinguished by the name of the TRUSTEES OF DARTMOUTH COLLEGE. And further we have willed, given, granted, constituted, and ordained, and by this our present Charter, of our spe- cial grace, certain knowledge, and mere motion, with the advice aforesaid, do, for us, our heirs, and successors for- ever, will, give, grant, constitute, and ordain, that there shall be in the said Dartmouth College, from henceforth and forever, a body politick consisting of Trustees of said Dart- mouth College. And for the more full and perfect erection of said corporation and body politick, consisting of Trustees of Dartmouth College, we, of our special grace, certain knowledge, and mere motion, do, by these presents, for us, our heirs and successors, make, ordain, constitute, and ap- point our trusty and well beloved John Wentworth, Esq. Governor of our said Province, and the Governor of our said Province of New-Hampshire for the time being, and our trusty and well beloved Theodore Atkinson, Esq. now President of our Council of our said Province, George Jaf- frey and Daniel Peirce, Esquires, both of our said Council, and Peter Gilman, Esq. now speaker of our House of Rep- resentatives in said Province, and William Pitkin, Esq. one of the assistants of our Colony of Connecticut, and our said trusty and well beloved Eleazar Wheelock of Lebanon, Doc- tor in Divinity, Benjamin Pomroy of Hebron, James Lock- wood of Weathcrsfield, Timothy Pitkin, and John Smalley SUPERIOR COURT, NEW-HAMPSHIRE. * of Farmington, and William Patten of Hartford, all of our said Colony of Connecticut, ministers of the gospel, (the whole number of said Trustees consisting, and hereafter for- ever to consist, of twelve and no more) to be Trustees of said Dartmouth College in this our Province of New-Hamp- shire. And we do further, of our special grace, certain knowl- edge, and mere motion for us, our heirs, and successors, will, give, grant, and appoint, that the said Trustees and their successors shall forever hereafter be, in deed, act, and name a body corporate and politick, and that they, the said body corporate and politick, shall be known and distinguish- ed, in all deeds, grants, bargains, sales, writings, evidences, or otherwise howsoever, and in all courts forever hereafter plead and be impleaded by the name of The Trustees of Dartmouth College ; arid that the said corporation, by the name aforesaid, shall be able and in law capable, for the use of said Dartmouth College, to have, get, acquire, purchase, receive, hold, possess, and enjoy, tenements, hereditaments, jurisdictions, and franchises, for themselves and their succes- sors, in fee simple, or otherwise howsoever, and to purchase, receive, or build, any house or houses, or any other build- ings, as they shall think needful and convenient, for the use of said Dartmouth College, and in such town in the western part of our said Province of New-Hampshire, as shall by said Trustees, or the major part of them, be agreed on ; their said agreement to be evidenced by an instrument in writing, under their hands, ascertaining ihe same — And also to re- ceive and dispose of any lands, goods, chattels, and other things of what nature soever, for the use aforesaid — And al- so to have, accept, and receive any rents, profits, annuities, gifts, legacies, donations, or bequests of any kind whatsoev- er, for the use aforesaid ; so nevertheless that the yearly value of the premises do not exceed the sum of six thousand pounds sterling ; and therewith or otherwise to support 8 « DARTMOUTH COLLEGE VS. WOODWARD." and pay, as the said Trustees, or the major part of such of them as are regularly convened for the purpose, shall agree, the President, Tutors, and other officers and ministers of said Dartmouth College ; and also to pay all such missionaries and school masters as shall be authorized appointed, and employed by them, for civilizing, and chris- tianizing, and instructing the Indian natives of this land, their several allowances ; and also their respective annual salaries or allowances, and all such necessary and contingent charges, as from time to time shall arise and accrue, relating to the said Dartmouth College : — And also to bargain, sell, let, or assign lands, tenements, or hereditaments, goods, or chattels, and all other things whatsoever, by the name afore- said, in as full and ample a manner, to all intents and pur- poses^ a natural person,or other body politick or corporate, is able to do by the laws of our realm of Great-Britain, or of said Province of New-Hampshire. And further of our special grace, certain knowledge, and mere motion, to the intent that our said corporation and body politick may answer the end of their erection and con- stitution, and may have perpetual succession and continu- ance forever, we do for us, our heirs, and successors, will, give, and grant unto the Trustees of Dartmouth CoN lege, and to their successors forever, that there shall be, once a year and every year, a meeting of said Trustees, held at said Dartmouth College, at such time as by said Trustees, or the major part of them, at any legal meeting of said Trustees, shall be agreed on ; the first meeting to be called by the said Eleazar Wheelock, as soon as conven- iently may be, within one year next after the enrollment of these our Letters patent, at such time and place as he shall judge proper. And the said Trustees, or the major part of any seven or more of them, shall then determine on the time for holding the annual meeting aforesaid, which may he altered as thev shall hereafter find most convenint. And SUPERIOR COURT, NEW-HAMPSHIRE. 9 we further order and direct, that the said Eleazar Wheel- ock shall notify the time for holding said first meeting, to be called as aforesaid, by sending a letter to each of said Trus- tees, and causing an advertisement thereof to be printed in the New-Hampshire Gazette, and in some publick newspa- per printed in the Colony of Connecticut. But in case of the death or incapacity of the said Wheelock, then such meeting to be notified in manner aforesaid, by theGovernotfr or Commander in Chief of our said Province for the time being. And we do also for us, our heirs, and succes* sors, hereby will, give, and grant, unto the said Trustees of Dartmouth College aforesaid and to their successors forever, that when any seven or more of the said Trustees or their successors are convened and met together, for the service of said Dartmouth College, at any time or times, such sev- en or more shall be capable to act as fully and amply, to all intents and purposes, as if all the Trustees of said College were personally present — and all affairs and actions whatso- ever, under the care of the said Trustees, shall be determin- ed by the majority or greater number of those seven or more Trustees so convened and met together. And we do fnrlher will, ordain, and direct, that the President, Trustees, Professors, Tutors, and all such offi- cers as shall be appointed, for the publick instruction and* government of said College, shall before they undertake the execution of their offices or trusts, or within one year after, take the oaths and subscribe the declaration provided by an act of Parliament made in the first year of King George the first, entitled " An art for the further security of his Majes- ty's person and government, and the succession of the crown in the heirs of tlie late princess Sopkia, being prot- estants, and for the extinguishing the hopes of the pretended Prince of Wales, and his open and secret abettors" that is to say, the President before the Govcrnour of our said Prov- ince for the time being, or by one by him empowered to that 10 "DARTMOUTH COLLEGE VS. WOODWARD." service, or by the President of our said Council, and the Trustees, Professors, Tutors, and other officers, before the President of said College for the time being, who is hereby impowercd to administer the same ; an entry of all which shall be made in the records of said College. And we do for us, our heirs, and successors hereby will, give, and grant full power and authority to the Presi- dent hereafter by as named, and to his successors, or iu case of his failure to any three or more of the said Trustees, to appoint other occasional meetings, from time to time, of the said seven Trustees or any greater number of them, to transact any matter or thing necessary to be done before the next annual meeting, and to order notice to the said seven or any greater number of them, of the times and places of meeting for the service aforesaid, by a letter under his or their hands, of the same, one month before said meeting — Provided always, that no standing rule or order be made or altered for the regulation of said College, nor any Presi- dent or Professor be chosen or displaced, nor any other matter or thing transacted or done, which shall continue in force after the then next annual meeting of the said Trus- tees as aforesaid. And further we do by these presents for us, our heirs and successors, create, make, constitute, nominate, and ap- point our trusty and well beloved Eleazar Wheelock, Doc- tor in Divinity, the Founder of said College, to be Presi- dent of said Dartmouth College, and to have the immediate care of education and government of such students, as shall be admitted into said Dartmouth College, for instruc- tion and education ; and do will, give, and grant to him, in said office, full power, authority, and right to nominate, ap- point, constitute, and ordain, by his last Will, such suitable and oaeet person or persons as he shall choose to succeed him iu the Presidency of said Dartmouth College ; and the per- son so] appointed, by his last will to continue in office SUPERIOR COURT, NEW-HAMPSHIRE 1 1 vested with all the powers, privileges, jurisdiction and au- thority of a President of said Dartmouth College ; that is to say, so long and until such appointment by said last Will shall be disapproved by the Trustees of said Dartmouth College. And we do also for us, our heirs, and successors, will, give, and grant to the said Trustees of said Dartmouth Col- lege, and to their successors forever, or any seven or more of them convened as aforesaid, that in the case of the ceas- ing or failure of a President by any means whatsoever, that the said Trustees do elect, nominate, and appoint such qual- ified person, as they, or the major part of any seven or more of them convened for that purpose as above directed shall think fit, to be President of said Dartmouth Collpge, and to have the care of the education and government of the students as aforesaid, and in case of the ceasing of a Presi- dent as aforesaid, the Senior Professor or Tutor, being one of the Trustees, shall exercise the office of a President, un- til the Trustees, shall make choice of and appoint a Presi- dent as aforesaid; and such Professor or Tutor,or any three or more of the Trustees,shall immediately appoint a meeting of the body of the Trustees for the purpose aforesaid. And also we do will, give, and grant to the said Trustees con- vened as aforesaid, that they elect, nominate, and appoint so many Tutors and Professors to assist the President in the education and government of the students belonging thereto, as they the said Trustees shall, from time to time, think needful and serviceable to the interests of said Dart- mouth College. And also that the said Trustees or their successors, or the major of any seven or more of them con- vened for that purpose as above directed, shall at any time displace and discharge from the service of said Dartmouth College any or all such officers, and elect others in their room and stead as before directed. And also that the said Trustees or their successors, or tiie major part of any »ev 12 v DARTMOUTH COLLEGE VS. WOODWARD." en of them which shall convene for that purpose as above directed, do, from time to time as occasion shall require, elect,constitute, and appoint a Treasurer, a Clerk, an Usher, and a Steward for the said Dartmouth College, and appoint to them and each of them their respective businesses and trust ; and displace and discharge from the service of said College, such Treasurer, Clerk, Usher or Steward, and to elect others in their room and stead ; which officers so elected, as before directed, we do for us, our heirs and suc- cessors, by these presents, constitute and establish in their respective offices, and do give to each and every of them, full power and authority to exercise the same in said Dart- mouth College, according to the directions, and during the pleasure of the said Trustees, as fully and freely as any like officers in any of our universities, colleges, or seminaries of learning in our realm of Great Britain, lawfully may or ought to do — And also that the said Trustees and their sucr cessors, or the major part of any seven or more ©f them, which shall convene for that purpose as is above directed, as often as one or more of said Trustees shall die or by remov- al or otherwise shall, according to their judgment, become unfit or incapable to serve the interests of said College, do, as soon as may be after the death, removal, or such unfit- ness or incapacity of such Trustee or Trustees, elect and appoint such Trustee or Trustees aa shall supply the place of him or them so dying or becoming incapable to serve the interests of said College ; and every Trustee so elected and appointed, shall, by virtue of these presents and such elec- tion and appointment, be vested with all the powers and privileges, which any of the other Trustees of said College are hereby vested with. And we do further will, ordain, and direct, that from and after the expiration of two years from the enrollment of these presents, such vacancy or va- cancies as may or shall happen, by death or otherwise in the aforesaid number of Trustees, shall be filled up by election SUPERIOR COURT, NEW-HAMPSHIRE. 13 as aforesaid, so that when such vacancies shall be filled up unto the complete number of twelve Trustees, eight of the aforesaid whole number of the body of Trustees shall be res- ident, and respectable freeholders of our said Province of New-Hampshire, and seven of said whole number shall be laymen. And we do further of our special grace, certain knowl- edge, and mere motion, will, give, and grant, unto the said Trustees of Dartmouth College, that they, and their suc- cessors or the major part of any seven of them which shall convene for that purpose as is above directed, may make, and they are hereby fully impowcred,from time to time,fully and lawfully to make and establish such ordinances, orders, and laws as may tend fo the good and wholesome govern- ment of the said College, and all the students and the seve- ral officers and ministers thereof and to the publick benefit of the same, not repugnant to the laws and statutes of our realm of Great Britain or of this our Province of New- Hampshire, and not excluding any person of any religious denomination whatsoever from free and equal liberty and ad- vantage of education, or from any of the liberties and privi- leges or immunities of the said College on account of his or their speculative sentiments in religion, and of his or their being of a religious profession different from the said Trus- tees of the said Dartmouth College. And such ordinances, orders and laws, which shall as aforesaid be made, we do for us, our heirs, and successors by these presents ratify allow of, and confirm, as good and effectual to oblige and bind all the students and the several officers and ministers of the said College. And we do hereby authorize and im« power the said Trustees of Dartmouth College, and the President, Tutors and Professors by them elected and ap- pointed as aforesaid, to put such ordinances, orders and laws, in execution to all proper intents and purposes. And we do further of our special grace, certain knowl- edge, and mere motion, will, givo, and grant unto the said 14 "DARTMOUTH COLLEGE VS. WOODWARD." Trustees of said Dartmouth College, for the encouragement of learning, and animating the students of said College to diligence and industry, and a laudable progress in literature that they, and their successors or the major part of any sev- en or more of them convened for that purpose as above di- rected, do, by the President of said College for the time be- ing, or any other deputed by them, give, and grant any such degree or degrees to any of the students of the said Col- lege, or any others by them, thought worthy thereof, as are usually granted in either of the universities, or any other college in our realm of Great Britain ; and that they sign and seal diplomas or certificates of such graduations, to be kept by the graduates as perpetual memorials and testimo- nials thereof. And we do further of our special grace, certain knowl- edge, and mere motion by these presents for us, our heirs, and successors, give and grant unto the Trustees of said Dartmouth College and to their successors, that they and their successors shall have a common seal, under which they may pass all diplomas or certificates of degrees, and all other affairs and business of and concerning the said Col- lege ; which shall be engraven in such a form, and with such an inscription as shall be devised by the said Trustees, for the time being, or by the major part of any seven or more of them convened for the service of the said College as is above directed. And we do further for us, our heirs and successors, give and grant unto the said Trustees of the said Dart- mouth College and their successors, or to the major part of any seven or more of them convened for the service of the said College, full power and authority, from time to time, to nominate and appoint all other officers and ministers, which they shall think convenient and necessary for the service of the said College, not herein particularly named or mention- ed ; which officers and ministers we do hereby impower to SUPERIOR COURT, NEW-HAMPSHIRE. 15 execute their offices and trusts, as fully and freely as any of the officers and ministers in our universities or colleges in our realm of Great Britain lawfully may or ought to do. And further, that the generous contributors to the sup- port of this design of spreading the knowledge of the only true God and Saviour among the American savages, may, from time to time, be satisfied that their liberalities are faith- fully disposed of in the best manner for that purpose, and lhat others may in future time be encouraged in the exercise of the like liberality for promoting the same pious design, it shall be the duty of the President of said Dartmouth Col- lege and of his successors, annually or as often as he shall be thereunto desired or required, to transmit to the Right Honourable, Honourable and worthy gentlemen of the trust in England beforementioned, a faithful account of the improvement and disbursements of the several sums he shall receive from the donations and bequests made in England through the hands of said Trustees, and also advise them of the general plans laid, and prospects exhibited, as well as a faithful account of all remarkable occurrences, in order, if they shall think expedient, that they may be published. And this to continue so long as they shall perpetuate their board of trust and there shall be any of the Indian natives remaining to be proper objects of that charity. And lastly our express will and pleasure is, and we do by these pres- ents, for us, our heirs and successors, give and grant unto the said Trustees of Dartmouth College and to (heir suc- cessors forever, that these our Letters patent, or the enroll- ment thereof in the Secretary's office of our Province of New-Hampshire aforesaid, shall be good and effectual in the law, to all intents and purposes, against us, our heirs, aod successor;*, without any other license, grant or con- firmation from us, our heirs and successors hereafter by the said Trustees to be had and obtained, notwithstanding the uot writing or misrecital, not naming or misnaming tiie afore- 16 «' DARTMOUTH COLLEGE VS. WOODWARD." said offices, franchises, privileges, immunities, or other the premises, or any of them, and notwithstanding a writ of ad quod damnum hath not issued forth to enquire of the premises or any of them, before the ensealing hereof, any statute, act, ordinance, or provision or any other matter or thing to the contrary notwithstanding. To have and to hold all and singular the privileges, advantages, liber- ties, immunities, and all other the premises herein and here- by granted or which are meant, mentioned, or intended to be herein and hereby given and granted, unto them the said Trustees of Dartmouth College, and to their successors for- ever. In testimony whereof, we have caused these our Letters to be made patent, and the public Seal of our said Province of New-Hampshire to be hereunto affixed. Wit- ness our trusty and well beloved John Wentworth, Esquire, Governour and commander in chief, in and over our said Province, &c. this thirteenth day of December, in the tenth year of our reign, and in the year of our Lord one thousand seven hundred and sixty nine. N. B. l«The words " and such Professor or Tutor or any three or more of the Trustees shall immediately appoint a meeting of the body of the Trustees for the purpose afore- said," between the first and second lines, also the words "or more" between the twenty seventh and twenty eighth lines, also the words " or more" between the twenty eighth and twenty ninth lines, and also the words, " to all intents and purposes" between the thirty seventh and thirty eighth lines of this sheet were respectively interlined before sign- ing and sealing. And the said Jurors, upon their oath, further say, that af- terwards upon the eighteenth day of the same December, the said letters patent were duly enrolled and recorded in the Secretary's office of said Province, now State of New- Hampshire — And afterwards and within one year from the issuing of the same letters patent, all the persons, named as SUPERIOR COURT, NEW-HAMPSHIRE. 17 Trustees in the same, accepted the said letters patent and assented thereunto, and the corporation therein and thereby created and erected was duly organized and has until the passing of the act of the legislature of the state of New- Hampshire of the 27th of June A. D. 1816, and ever since (unless prevented by said act and the doings under the same) continued to be a corporation. And the said Jurors, upon their oath, further say, that immediately after its erection and organization as aforesaid, the said corporation had, took, acquired, and received, by gift, donation, devise and otherwise, lands, goods* chattels, and monies of great value ; and from time to time since have had, taken, received, and acquired, in manner aforesaid and. otherwise, lands, goods, chattels, and monies of great value ; and on the same 27th day of June A. D. 1816, the said corporation, erected, and organized as aforesaid, had, held, and enjoyed, and ever since have had, held, and enjoyed divers lands, tenements, hereditaments, goods, chattels, and monies acquired in manner aforesaid, the yearly income of the same not exceeding the sum of $26,6*36, for the use of said Dartmouth College as specified in said letters patent. And the said Jurors, upon their oath, further saj', that part of the said lands, so acquired and holden by the said Trustees as aforesaid, were granted by (and are situate in) the state of Vermont A. D. 1785, and are of great value ; and other part of said lands, so acquired and holden as a- foresaid, were granted by (and are situate in) the state of New-Hampshire in the years 1789 and 1807, and are of great value. And the said Jurors, upon their oath,further say, that the said Trustees of Dartmouth College so constituted as afore- said, on the same 27th day of June A. D. 1816, were pos- sessed of the goods and chattels in the declaration of the said Trustees specified, and at the place therein mentioned, as of their own proper goods and rhuttels, and continued so 4 18 "DARTMOUTH COLLEGE VS. WOODWARD." possessed until and at the time of the demand and refusal of the same as herein after mentioned, unless divested thereof and their title thereto defeated and rendered invalid, by the provisions of the act of the legislature of the state of New- Hampshire made and passed on the same 27th day of June A. D. 1816, and the doings under the same as herein after mentioned and recited. And the said Jurors, upon their oath, further, say, that on the 27th day of June A. D. 1816, the legislature of said state of New-Hampshire, made and passed a certain act entitled, " An act to amend the charter and enlarge and improve the corporation of Dartmouth College," in the words following : — An Act to amend the charter and enlarge and improve the corporation of Dartmouth College. WHEREAS knowledge and learning generally diffused through a community are essential to the preservation of a free government, and extending the opportunities and ad- vantages of education is highly conducive to promote this end, and by the constitution it is made the duty of the leg- islators and magistrates to cherish the interests of literature and the sciences, and all seminaries established for their ad- vancement — and as the college of this state may in the opin- ion of the legislature be rendered more extensively useful ; Therefore, Sect. 1. Be it enacted by the senate and house of rep- resentatives in general court convened, That the corpora- tion, heretofore called and known by the name of the Trus- tees of Dartmouth College, shall ever hereafter be called and known by the name of the Trustees of Dartmouth Uni- versity — And the whole number of said trustees shall be twenty-one, a majority of whom shall form a quorum for the transaction of business — And they and their successors in that capacity, as hereby constituted, shall respectively for- SUPERIOR COURT, NEW-HAMPSHIRE. 19 ever have, hold, use, exercise and enjoy all the powers, au- thorities, rights, property, liberties, privilege* and immuni- ties which have hitherto been possessed, enjoyed and used by the trustees of Dartmouth College — except so far as the same may be varied or limited by the provisions of this act. And they shall have power to determine the times and pla- ces of their meetings, and manner of notifying the same ; to organize colleges in the university ; to establish an insti- tute and elect fellows and members thereof: to appoint such officers as Ihey may deem proper, and determine their duties and compensation, and also to displace them ; to del- egate the power of supplying vacancies in any of the offices of the university, for any term of time not extending beyond their next meeting : to pass ordinances for the government of (he students, with reasonable penalties, not inconsistent with the constitution and laws of this state; to prescribe the course of education and confer degrees ; and to arrange, in- vest and employ the funds of the University. Sect. 2. And be it further enacted, That there shall be a board of overseers, who shall have perpetual succes- sion and whose number shall be twenty -five, fifteen of whom shall constitute a quorum for the transaction of business. The president of the senate and the speaker of the house of representatives of New-Hampshire, the governour and lieu- tenant governour of Vermont, for the time being, shall be members of said board, ex-officio. The board of overseers shall have power to determine the times and places of their meetings, and manner of notifying the same ; to inspect and confirm or disapprove and negative such votes and proceed- ings of the board of trustees as shall relate to the appoint- ment and removal of president, professors and other perma- nent officers of the university, and determine their salaries; to the establishment of colleges and professorships and the erection of new college buildings. — Provided always, that the said negative shall be expressed within sixty days from 20 « DARTMOUTH COLLEGE VS. WOODWARD." the time of said overseers being furnished with copies of such acts. — Provided also, that all votes and proceedings of the board of trustees shall be valid and effectual, to all intents and purposes, until such negative of the board of overseers be expressed according to the provisions of this act. Sect. 3. Be it further enacted, That there shall be a treasurer of said corporation, who shall be duly sworn, and who, before he enters upon the duties of his office, shall give bonds with sureties to the satisfaction of the corpora- tion for the faithful performance thereof ; and also a secre- tary to each of the boards of trustees and overseers, to be elected by the said boards respectively, who shall keep a just and true record of the proceedings of the board for which he was chosen. And it shall furthermore be the du- ty of the secretary of the board of trustees to furnish as soon as may be to the said board of overseers, copies of the records of such votes and proceedings as by the provisions of this act are made subject to their reversion and controul. Sect. 4. Be it further enacted, That the president of Dartmouth University, and his successors in office, shall have the superintendence of the government and instruction of the students and may preside at all meetings of the trus- tees ; and do and execute all the duties devolving by usage on the president of a university. — He shall render annually to the governour of this state an account of the number of students, and of the state of the funds of the university ; and likewise copies of all important votes and proceedings of the corporation and overseers, which shall be made out by the secretaries of the respective boards. Sect. 6. 3e it further enacted, That the president and professors of the university shall be nominated by the trus- tees and approved by the overseers : and shall be liable to be suspended or removed from office in manner as before provided. And each of the two boards of trustees and SUPERIOR COURT, NEW-HAMPSHIRE. 21 overseers shall have power to suspend and remove any member of their respective boards. Sect. 6. Beit further enacted, That the governour and council are hereby authorized to fill all vacancies in the board of overseers, whether the same be original vacancies, or are occasioned by the death, resignation or removal of any member. And the governour and council in like man- ner shall, by appointments, as soon as may be, complete the present board of trustees (o the number of twenty-one, as provided for by this act, and shall have power also to fill all vacancies that may occur previous to or during the first meeting of the said board of trustees. — But the president of said university for the time being, shall nevertheless be a member of said board of trustees, ex-officio. And the gov- ernour and council shall have power to inspect the doings and proceedings of the corporation and of all the officers of the university, whenever they deem it expedient — and they are hereby required to make such inspection and report the same to the legislature of this state as often as once in every five years. And the governour is hereby authorized and re- quested to summon the first meeting of the said trustees and overseers, to be held at Hanover on the 26th day of Au- gust next. Sect. 7. Be it further enacted, That the president and professors of the university, before entering upon the duties of their offices, shall take the oath to support the constitu- tion of the United States and of this state; certificates of which shall be in the office of the secretary of this state,within sixty days from their entering on their offices respectively. Sect. 8. Be it further enacted, That perfect freedom of religious opinion shall be enjoyed by all the officers and students of the university ; and no officer or student shall be deprived of any honours, privileges or benefits of the in- stitution, on account of his religious creed or belief. The 'heological colleges which may be established in the univer- 22 "DARTMOUTH COLLEGE VS. WOODWARD." sity shall be founded on the same principles of religious free- dom ; and any man or body of men shall have a right to endow colleges or professorships of any sect of the protes- (ant christian religion : And the trustees shall be held and obliged to appoint professors of learning and piety of such sects, according to the will of the donors. Approved June 27th, 1816, And the said Jurors, upon their oath, further say, that at the annual meeting of the Trustees of Dartmouth College constituted agreeably to the letters patent aforesaid, and in no other way or manner, iiolden at said College on the 28th day of August A. D. 1816, the said Trustees voted and re- solved, and caused the said vote and resolve to be entered on their records(l), that they do not accept the provisions of the said act of the legislature of New-Hampshire of the 27th of June A. D. 1816 above recited, but do by the said vote and resolve expressly refuse to accept or act under the same. And the said Jurors, upon their oath, further say, that the said Trustees of Dartmouth College have never accepted, assented to or acted under the said act of the 27th of June, A. D. 1816, or any act passed in addition thereto or in a- mendment thereof, but have continued to act and still claim the right of acting under the said letters patent. And the said Jurors, upon their oath, further say, that on the seventh day of October, A. D. 1816, and before the commencement of this suit, the said Trustees of Dartmouth College demanded of the said William H. Woodward the property, goods and chattels, in the said declaration speci- fied, and requested the said William H. Woodward, who then had the same in his hands and possession, to deliver the same to them, which the said William H. Woodward then and there refused to do,and has ever since neglected and refused to do, but converted the same to his own use, if the (I) Sec Appendix No. 1. SUPERIOR COURT, NEW-HAMPSHIRE. 23 said Trustees of Dartmouth College could, after the passing of the said act of the 27th day of June, lawfully demand the same, and if the said William H. Woodward was not by law authorized to retain the same in his possession after such demand. And the said Jurors, upon their oath, further say, that on the 18th day of December A. D. 1816, the legislature of said state of New-Hampshire made and passed a certain other act entitled, "An act in addition to and in amendment of an act entitled An act to amend the charter and enlarge and im- prove the corporation of Dartmouth College," in the words following : — An Act in addition to and in amendment of an act, entitled, " An act to amend the charter and enlarge and improve the corporation of Dartmouth College." WHEREAS the meetings of the Trustees and Over- seers of Dartmouth University, which were summoned a- greeably to the provisions of said act, failed of being duly holden, in consequence of a quorum of neither said trustees nor overseers attending at the time and place appointed, whereby the proceedings of said corporation have hitherto been and still are delayed : Section 1. Be it enacted by the senate and house of representatives, in general court convened, That the gov- ernour be,and he is hereby authorized and requested to sum- mon a meeting of the trustees of Dartmouth University, at such time and place as he may deem expedient. And the said trustees at such meeting, may do and transact any mat- ter or thins;, within the limits of their jurisdiction and pow- er, as such trustees, to every intent and purpose, and as fully and completely as if the same were transacted at any annual or other meeting. And the governour, with advice of council, is authorized to fill all vacancies that have happened or may happen in the board ol said trustees, previous to their 24 "DARTMOUTH COLLEGE VS. WOODWARD." next annual meeting. And the governour is hereby authoria-* ed to summon a meeting of the overseers of said Universitj, at such time and place as he may consider proper. And pro- vided a less number than a quorum of said board of overseers convene at the time and place appointed for such meeting of their board, they shall have power to adjourn, from time to time, until a quorum shall have convened. Sect. 2. And be it further enacted, That so much of the act, to which this is an addition, as make necessary any particular number of trustees or overseers of said University to constitute a quorum for the transaction of business, be and the same hereby is repealed ; and that hereafter nine of said trustees, convened agreeably to the provisions of this act, or to those of that to which this is an addition, shall be a quo- rum for transacting business ; and that in the board of trus- tees six votes at least shall be necessary for the passage of any act or resolution. And provided also that an}- smaller number than nine of said trustees, convened at the time and place appointed for any meeting of their board, according to the provisions of this act, or that to which this is an addi- tion, shall have power to adjourn from time to time, until a quorum shall have convened. Sect. 3. And be it further enacted, That each mem- ber of said board of trustees, already appointed or chosen, or hereafter appointed or chosen, shall, before entering on the duties of his office, make and subscribe an oath for the faithful discharge of the duties aforesaid ; which oath shall be returned to and filed in the office of the secretary of state, previous to the next regular meeting of said board, after said member enters on the duties of his office as aforesaid. Approved December 18, 1816. And the said Jurors, upon their oath, further say, that on the 26th day of December A. D. 1816, the legislature of said state of New-Hampshire made and passed a certain other act entitled, "An act in addition to an act entitled an act in SUPERIOR COURT, NEW-HAMPSHIRE. 25 addition to and in amendment of an act entitled an act to a- mend the charter and enlarge and improve the corporation of Dartmouth College, in the words following: — An Act in addition to an act, entitled " an act in addition to and in amendment of an act entitled an act to amend the charter and enlarge and improve the corporation of Dartmouth College." BE it enacted by the senate and house of representatives in general court convened, That if any person or persons shall assume the office of president, trustees, professor, sec- retary, treasurer, librarian, or other officer of Dartmouth University, or by any name or under any pretext shall di rectly or indirectly take upon himself or themselves the dis* charge of any of the duties of either of those offices, except it be pursuant to and in conformity with the provisions of an act, entitled " an act to amend the charter and enlarge and improve the corporation of Dartmouth College," or, of the " act in addition to and in amendment of an act entitled an act to amend the charter and enlarge and improve the cor- poration of Dartmouth College," or shall in any way direct- ly or indirectly wilfully impede or hinder any such officer or officers already existing, or hereafter to be appointed a- greeably to the provisions of the acts aforesaid, in the free and entire discharge of the duties of their respective offices, conformably to the provisions of said acts, the person or persons so offending shall for each offence forfeit and pay the sum of five hundred dollars, to be recovered by any per- son who shall sue therefor, one half thereof to the use of the prosecutor, and the other half to the use of said University. And be it further enacted, That the person or persons who sustained the offices of secretary and treasurer of the trustees of Dartmouth College, next before the passage of the act entitled " an act to amend the charter and enlarge and improve the corporation of Dartmouth College," shaft 26 DARTMOUTH COLLEGE VS. WOODWARD. continue (o hold and discharge the duties of those offices, as secretary and treasurer of the trustees of Dartmouth University, until another person or persons be appointed in his or their stead by the trustees of said University. And that the treasurer of said University, so existing, shall in his office have the care, management, direction, and superinten- dence of the property of said corporation, whether real or personal, until a quorum of said trustees shall have conven- ed in a regular meeting. Approved December 26, 1816. And the said Jurors, upon their oath, further say, that the said William H. Woedward, before the said 27th day of June, had been duly appointed by the said trustees of Dartmouth College, Secretary and Treasurer of the said corporation, and was duly qualified to exercise and did ex- ercise the said offices and perform the duties of the same ; and as such Secretary and Treasurer rightfully had, while he so continued Secretary and Treasurer as aforesaid, the custody and keeping of the several goods, chattels, and property in said declaration specified. And the said Jurors, upon their oath, further say, that the said William H. Woodward was removed by said Trustees of Dartmouth College (if the said Trustees could bylaw do the said acts) from said office of Secretary, on the 27th day of August A. D. 1816, and from said office of Treasurer on the 27th day of September then next following, of which said removals he, the said William H. Woodward, had due notice on each of said days last mentioned. And the said Jurors, upon their oath, further say, that the corporation called the Trustees of Dartmouth University was duly organized on the fourth day of February A. D. 1817, pursuant to and under the said recited acts of the 27th day of June, and of the 18th and 26th days of Decem- ber A. D. 1816 ; and the said William H. Woodward was on (he said fourth day of February A. D. 1817, duly ap- SUPERIOR COURT, NEW-HAMPSHIRE. 27 pointed by the said Trustees of Dartmouth University, Sec- retary and Treasurer of the said Trustees of Dartmouth University, and then and there accepted both said offices. And the said Jurors, upon their oath, further say, that this suit was commenced on the eighth day of February A. D. 1817. But whether upon the whole matter aforesaid, by the Ju- rors aforesaid in manner and form aforesaid found, the said acts of the 27th of June, 18th and 26th of December A. D. 1816 are valid in law and binding on the said Trustees of Dartmouth College, without acceptance thereof and assent thereunto by them, so as to render the plaintiffs incapable of maintaining this action, or whether the same acts are re- pugnant to the constitution of the United States and so void, the said Jurors are wholly ignorant and pray the advice of the court upon the premises. — And if upon the said matter, it shall seem to the court here, that the said acts last men- tioned are valid in law and binding on said Trustees of Dartmouth College, without acceptance thereof and assent thereto by them, so as to render the plaintiffs incapable, of maintaining this action, and are not repugnant to the constitu- tion of the United States, then the said Jurors, upon their oath, say that the said William H. Woodward is not guilty of the premises above laid to his charge, by the declaration aforesaid, as the said William H. Woodward hath above in pleading alleged. — But if upon the whole matter afore- said, it shall seem to the court here, that the said acts last mentioned are not valid in law, and are not binding on the said Trustees of Dartmouth College, without acceptance thereof and agsent thereto by them, so as to render them in- capable of maintaining this action, and that the said acts are repugnant to the constitution of the United States and void, then the said Jurors, upon their oath, say that the said Wil- liam H. Woodward is guilty of the premises above laid to his charge, by the declaration aforesaid, and in that case, 28 DARTMOUTH COLLEGE VS. WOODWARD they assess the damages of them, the said Trustees ot Dartmouth College, by occasion thereof to twenty thousand dollars." Afterwards at the same term, the argument was opened on the part of the plaintiffs by Mr. Mason and Mr. Smith, and on the part of the defendant by Mr. Bartlett and Mr. Sullivan, and the cause was continued nisi, for further ar- gument, in Rockingham County on the next circuit. At the September Term in Rockingham County, present all the Judges, vis. Hon. WILLIAM M. RICHARDSON, ciiif jtstice. Hon. SAMUEL BELL, > JUSTICE « Hon. LEVI WOODBURY, $ JUSTICEB - The cause came on to be again argued. Mr. Mason. — By the charter of 1769 a corporation is created, by the name of " The Trustees of Dartmouth Col- lege." The charter recites, that much expense and great labour had been bestowed, in erecting and supporting a charity school, which had become highly useful ; and that individuals, as well in England as in this country, were dis- posed to make donations, for its enlargement, and more libe- ral endowment ; and that the king, " willing to encourage the laudable and charitable design," established the corpo- ration. Twelve persons are appointed under the name of trusteeSy to constitute the corporation, and it is expressly provided, that it shall forever thereafter consist of twelve trustees, and no more. To them is granted the right to ac- quire, and hold real and personal estate, and to dispose of the same for the use of the college ; and to appoint future trustees to fill vacancies in their board ; and also to appoint the necessary officers of the college, and to assign them their duties and salaries ; and to make laws and regulations for the proper government of the institulion, together with all the usual powers of such corporations. " To have and hold all SUPERIOR COURT, NEW-HAMPSHIRE. 29 Mid singular the -privileges, advantages, liberties and im- munities, and all other the premises, herein and hereby, granted and given, or which are meant, mentioned, or intend- ed to be given and granted unto them, the said trustees of Dartmouth College, and their successors forever." The first act (of 2fth of June 1816) makes the twelve trus- tees, under the charter, and nine individuals, ,to be appoint- ed by the Governour and Council, a corporation, by the name of " the trustees of Dartmouth University ;" and transfers to them all " the property, rights, powers, liber- ties and privileges" of the old corporation, with power to establish new colleges and an Institute ;— -subject to the controul of a board, of twenty-five overseers, to be appoint- ed by the Governour and Council. The second act makes provision for obviating certain dif- ficulties, which had occurred in attempting to execute the first. And the last act authorizes the defendant, who was the Plaintiffs' treasurer, to retain and hold for a certain time, all their property against their will ; and subjects them to heavy penalties, should they impede or hinder the execu- tion of the acts. Under colour of these acts, the defendant claims to hold the property mentioned in the declaration. The question is whether the acts are obligatory, and bind- ing on the plaintiffs ; they never having accepted or assent ed to them. By the necessary construction of these acts, the old cor poration is abolished, if they are valid ; and a new one es tablished. The first act does, in fact, create a new cor- poration ; and transfers to it all the property and privileges of the old. The old corporation can, in no sense, be said to continue, when its property and privileges, of every kind, are thus taken away, and transferred to another corporation. The trustees and overseers of Dartmouth University consti- tute a corporation, if th*» acts are effectual for any purpose ; 30 DARTMOUTH COLLEGE VS. WOODWARD. and that corporation is, essentially, different, from the cor- poration of the trustees of Dartmouth College, as established by the charter. The two corporations are different in their corporate names ; in (he natural persons that compose them ; in the form and manner of their organizations ; and in their rights and privileges. The old corporation consists of twelve trustees ; the new of twenty one trustees, and twen- ty five overseers. In the old corporation the trustees, by filling vacancies, as they happened, appointed their own suc- cessors, and enjoyed and exercised all the privileges, grant- ed by their charter, and were subject to no controul, but that of the law of the land. In the new corporation, the trustees, in rhcir most important acts and doings, are subject to the controul of a board of overseers, dependent for their appointmenls on the Governour and Council. Subject to this controul, the new trustees have all the rights and powers of the old ; and they have also other most important rights and powers, which the old trustees never had, nor claimed. Of course, new duties are incurred, correspondent to the new- ly granted rights. In the first act it is provided, that " they (i. e. the new trustees) and their successors, in that capacity, as hereby constituted, shall respectively forever have, hold, use, ex- ercise and enjoy all the powers, authorities, rights, property, liberties, privileges and immunities, which have hitherto been posiessed, enjoyed and used by the trustees of Dartmouth College ; — except so far as the same may be varied or lim- ited by the provisions of this act. And they shall have power (among other things) to organize colleges in the Uni- versity ; to establish an Institute, and elect fellows and members thereof; — and to arrange, invest and employ the funds of the University." What other or more appropriate language could have been used, if the old trustees had sur- rendered their charter, and the legislature had intended to SUPERIOR COURT, XEW-HAMPSHIRE. 31 establish a new institution, to supply the place, and enjoy all the property and privileges of the old corporation ? In an act for that purpose, terms could not have been used more significant and appropriate, than those contained in this act. They are in substance, that the corporation, as hereby es- tablished, shall have artd enjoy all the property and rights, which have hitherto been held and enjoyed by the old cor- poration ; — except so far as the same may be varied or lim- ited by this act. It is true, Ihe act purports to include the old trustees, in the new corporation, but they have not accepted the act, nor consented to become members of the new corporation, and consequently they are not members. For they can neither be compelled to become members of the new corpo- ration, against their will ; nor to exercise new powers, or submit to new restrictions, in the old corporation. It was neither expected, nor desired that the old trustees should unite with the new ones. The intention doubtless was, in this indirect way to abolish the old corporation, and get rid of the trustees. The manner, in which the injury was inflict- ed, does not lessen the grievance. But if it should be held, that the old corporation is not, ab- solutely, abolished, it could avail nothing, in support of the validity of the acts. For the legislature is no more compe- tent to change, and essentially alter the rights of the plaint- iffs, than to abolish them. And it cannot be denied, that the acts do, in many particulars, essentially, affect and alter both the corporate, and individual rights and powers of the old trustees. That alterations and new limitations are imposed is admitted, by the very terms of the first act. The new trustees are to enjoy and exercise all the proper- ty, and privileges, which had been enjoyed and exercised by the old trustees, — except so far as the same may bevari ed or limited by the })rovisions of that act. Before the passing of the acts, the plaintiffs were sole 32 DARTMOUTH COLLEGE V S. WOODWARD. owners of all the property, acquired under (heir charter, and were, alone, entitled to exercise all the privileges, granted by it. By the acts, others are admitted, against their will, to become joint owners with them, of the property, and to a joint participation, of all the privileges. This forcible in- trusion, under pretence of joint ownership, violates the plaintiffs' rights, as essentially, as would an entire ouster. The whole organization of the corporation is changed. — Instead of oue board, consisting of twelve members, there are two boards, — one of twenty one members, — the other of twenty five. By the charter, the trustees had the right of making all suitable regulations, for the institution, subject to no appeal. By the acts, all the votes, and doings of the trustees may be negatived by the overseers ; in whose ap- pointment, the corporation has no agency. Not only are new trustees forced in, to participate with the old ones, but new trusts, and new duties are created. — An Institute and new colleges are to be established, and the fund*, acquired under the charter, may be applied to their establishment and support. The President of the College, a member of the old cor- poration, held his office and salary, dependent on the twelve trustees alone. The tenure of his office is changed, and he is now dependent on others, who have already attempt- ed to remove him. If the legislature can, at pleasure, make such alterations and changes, in the rights and privileges of the Plaintiffs, it may take them away entirely. If a part may be destroyed or taken away by one act, the rest may, by an other. The same power, that can do one, can do the other. I shall contend for the Plaintiffs that these acts are not obligatory : I. Because they are not within the general scope of legis- lative power: II. Because they violate certain provisions of the consti- tution of this State, restraining the legislative power : SUPERIOR COURT, NEW-HAMPSHIRE, 33 111. Because they violate the constitution of the United States : On the first point, the attempt will be to show, that the legislature would not have been competent to pass these acts, and make them binding on the plaintiffs, without their as- sent, even if there were no special restrictions on the power of the legislature, either in the constitution of this state, or of the United Stales. Numerous instances have occurred, where it has been the duty of the courts of law, in this state, as well as in most other states of the union, to examine into the legality of the doings of their respective legislatures. And the cases, in which the courts have been obliged to declare legislative acts unconstitutional and void, are vastly more numerous, than judging from the theory of our governments, was ta have been expected. As the constitutions attempt to define, with exactness, the powers granted to each depart- ment of government, it might have been expected, had not experience shown the contrary, that each department would have carefully confined itself, within its prescribed limits. The celebrated maxim that the legislative, executive, and judicial powers of government, ought to be kept sepa- rate and distinct, and be vested in different departments, was well understood, and duly appreciated, at the time of form- ing 1 lie constitution of this slate ; and is recognized and a- dopted in the 37th article of (he bill of rights. The due observance of this principle, according to the opinion cf tin i;'ost celebrated statesmen, and political writers, is essential to the preservation of a free government. " There can be no liberty, where the legislative and executive powers arc u- nited in the same person, or body of magistracy :" or, " il the power of judging be not separated from the legislative and executive powers"(l). Mr. Madison, speaking of tlilr principle, says, " no political truth is certainly of greatc C.) Monitsfj. spirit of Laws, II. 11- (J. G. 1 Vol. 181. H 34 DARTMOUTH COLLEGE VS. WOODWARD. intrinsick value, or is stamped with the authority of more enlightened patrons of liberty." " The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether heredi- tary, self-appointed, or elective, may justly be pronounced the very definition of tyranny"(2). Incompliance with this fundamental principle of all free governments, our constitution has erected the three depart- ments, and given to each its proper powers. The chief labour and difficulty has always been, to keep the legislative power, within its limits : and to protect the other departments from its encroachments. The legislature is too numerous to be restrained by considerations of individual responsibility. Confident in its influence with the people, it acts with a boldness and intrepidity, of which the other de- partments are incapable. This is the united opinion of the most able judges, after a critical examination of the course and tendency of our governments. "The legislative de- partment is every where, extending the sphere of its activi- ty, and drawing all power into its impetuous vortex." " It is against tiie enterprising ambition of this department, that, the people ought to indulge all their jealousy, and exhaust all their precautions"^). Mr. Hamilton on the same sub- ject says, "we have seen, that the tendency of republican governments is, to an aggrandizement of the legislative, at the expense of the other departments'^^). " They (the legislature) have accordingly, in many instances, decided rights, which should have been left to judiciary conl rover- »y"(5). Legislative bodies seem to consider themselves as rep resenting, exclusively, the sovereignty of the people, and as having the right to exercise any power, that ihey may deem expedient, unless specially prohibited. It is o-ftea (-2) 47th No. of Federalist. (.>) 4Sth Xo. of Federalist. (i) 49th Xo. of Federalist. '5) Jefferson's notes on Virginia, IS*.'- SUPERIOR COURT NEW-HAMPSHIRE. 35 gravely contended, that the legislature, thus representing the people, is superior to the other branches of the gov- ernment, and that it may, of right, exert a general con- trouling power over them. Such a doctrine is entirely in- consistent with that vital principle of all free governments, that the three great powers should be Jte.pt separate and independent. This axiom requires, that each department should confine itself to the powers granted to it, and not interfere with, nor exercise those, granted to the other departments. No in- terference whatever ought to be permitted, except where there is, by the constitution, a plain delegation of power ; as in the instance of the qualified negative, of the acts of the legislature, by the Governour. The different depart- ments are co-ordinate, independent, and equally the depos- itaries of sovereign power. Each has what was delegated to it, by the people, the great source of all power, and nei- ther has more. Each of the three powers is, in its nature, sovereign, within its proper sphere of action. Within the limits, prescribed for it, the judiciary department is as sub- stantially sovereign, as the legislative is within its limits. And the Courts of justice have as much right, to enact and promulgate new laws, as the legislature has to decide pri- vate controversies. For there is no more ground for a pre- tence, that power is given, by the constitution, either direct- ly, or by inference, to the legislature to decide on matters of private right, than that power is given to the Courts, to enact general statutes. And one department, whenever it shall attempt to act, beyond the limits of its authority, is entitled to no more obedience or respect, than an other would be, when making a similar attempt. The Con«titution of this State, and that of the United States, apparently jealous of the encroaching tendency of the legislative power, have not only defined it, with caution and exactness, but have also, in many instances, where from 36 DARTMOUTH COLLEGE VS. WOODWARD. former experience, the greatest danger was apprehended, guarded it with special prohibitions. But these "parch- ment barriers" will have little effect, unless carefully guard- ed, and firmly defended by the judiciary. The powers arc divided, and granted to separate and independent depart- ments, to the end, that each may, in its turn, be checked and restrained, in any attempt, to exercise powers not grant- ed to it. To restrain the legislative department, from over- leaping its boundary, the chief reliance is placed on the Ju- diciary. That the Courts of law, not only have the right, but are bound to entertain questions, and decide, on the constitu- tionality of acts of the legislature, though formerly doubted, seems to be now, almost universally, admitted. But an er- roneous opinion still prevails, to a considerable extent, that the courts, in the discharge of this great and important duty, ought to act, not only with more than ordinary de- liberation, but even with a degree of cautious timidity. The idea is, that these are dangerous subjects for Courts, and that they ought not to declare acts of the legislature uncon- stitutional, unless they come to their conclusion, with ab- solute certainty, like that of mathematical demonstration ; and where the reasons are so manifest, that none can doubt. A Court of law, when examining the doings of a co-ordinate branch of the government, will always treat it, with great decorum. This is proper in itself, and necessary to pre- serve an harmonious understanding, between independent departments. So also, it ought to be, after the most care- ful deliberation only, that a proceeding of such co-ordinate branch should be pronounced void. Because the result is always important. But the examination is to be pursued with firmness, and the final decision, as in other cases, must be according to the unbiased dictate of the understanding. An act of the legislature must, necessarily, have the sanc- tion of the opinion of a majority, of a numerous body of SUPERIOR COURT, NEW-HAMPSHIRE. 3T men. It cannot therefore be supposed, that the reasons, against the validity of such an act, will ordinarily be so plain and obvious, as to leave no manner of doubt. To require then, that Courts shall abstain, from declaring acts of the legislature invalid, while a scruple of doubt remains, is nothing less, than to demand a surrender of their jurisdic- tion in this particular ; in the due exercise of which consists the chief, if not only efficient security, for the great and fundamental principle of our free governments. Experience shows, that legislatures are in the constant habit, of exerting their power to its utmost extent. They intentionally act up to the very verge of their authority : and are seldom restrain- ed by doubts or timidity. If the Courts, fearing a conflict, adopt a course directly opposite, by abandoning their juris- diction, and retiring, whenever a plausible ground of doubt can be suggested, the time cannot be distant, when the leg- islative department " will draw all power into its impetuous vortex." The constitution of this State gives to the Legislature all legislative power, and no other, that has any relation to the matter, under consideration. If therefore the passing of the acts, in question, be not within the general scope of thelegiS' lative power, they cannot be valid. The acts are predicated on no previous proceedings a- gainst the plaintiffs, showing any misconduct ; but the at- tempt is, by a mere declaration of the sovereign will of the legislature, to take from the plaintiffs the whole, or a part, (and it makes no difference which) of their property and privileges ; and to transfer them to others. That cannot be done by the exercise of the legislative power. That pow- er is confined to the enacting of laws, and providing the proper ways and means for their execution, and finds there a sufficiently broad field of operation. Whenever a legisla ture rightfully performs other functions, it must be by vir- tue of special poTer, delegated for the purpoae. A legis- ■ I 38 DARTMOUTH COLLEGE VS. WOODWARD lattire can never, by virtue of i(s general legislative power, interfere in questions of private right. A legislature within its proper sphere of action, is governed by its discretion alone ; it can have no other guide. But private rights are not held by the uncertain tenure of arbitrary discretion. — " An elective despotism was not the government we fought for" (6). The security of private rights is the only valuable and important advantage, which a free government has over a despotick one. If the rights of individuals must be liable fo be violated by despotick power, it matters not, whether that power rests in the hands of one, or many. Numbers im- pose no restrain!, and afford no security. Experience has shown, where all the powers of government have been unit- ed, that their being exercised by a numerous assembly, has afforded to private rights, no security against the grossest acts of violence and injustice. The Legislature can make laws, by which private rights may become forfeited. But the Courts of justice are alone competent to adjudge and declare the forfeiture. While the legislative and judicial powers are kept separate, it can never be competent for the legislature, under any pretence what- ever, to take property from one, and give it to another, or in any way infringe private rights. Were that permitted, all questions of private right might be speedily determined by legislative orders and decrees ; and there would be no oc- casion for Courts of law. The deciding on matters of private right appertains, plain- ly and manifestly, to the judiciary department. It consti- tutes the chief labour of Courts of justice. As then one department cannot exercise the powers belonging to anoth_ er, it follows, that the legislature cannot, rightfully, assume any part of this jurisdiction, thus belonging to the judicia- ry department. The province of the legislature is to pro- {6) Jefferson's notes on Virginia, page 195. SUPERIOR COURT, NEW-HAMPSHIRE. 39 Tide laws, and ^. r 15) 9 Crane h iO. 46 DARTMOUTH COLLEGE VS. WOODWARD. It is impossible, without disregarding all established prin- ciples and authorities, on this subject, to consider a private eleemosynary corporation, a publick trust, and its members, publick officers of the state, and therefore incapable of hav- ing any rights, of the character of private rights. In most eleemosynary corporal ions, the objects of the char- ity, that is those who are individually to receive (he benefit of it, arc admitted and constituted members of the corporation. In a hospital, incorporated on that plan, (he poor and sick to enjoy the benefit of the charily, must be admitted mem- bers of the corporation. Can they be said, to hold the property and privileges of the corporation, in trust for the publick, and to be all publick officers of the state 1 It has never been supposed, that the rights of a corporation so constituted were, in relalion to the publick, different from those of a corporation, constituled as ours is. It is admitted, the plaintiffs are trustees of the revenues of the corporation, and bound to apply them to the objects intended to be provided for, and that this trust may be en- forced against them. But this is a private, not a publick trust. So also the corporate privileges are held in trust, partly for individual members of the corporation, but chief- ly for those, who, though not members, are to receive the ultimate benefit of the charity. But although the plaintiffs hold the property and privileges in trust, they are still the legal owners, and have all the legal righls thereto apper- taining. "When a trustee asserts, in a Court of law, his right to properly, conveyed to him in trust, it is surely no sufficient answer, to tell him the properly is designed for the use and benefit of others, and that he individually suf- fers no injury, and therefore is entitled to no remedy. The chief design, of conveying properly in trust, is to constitute the trustee a legal protector of it ; because the cestui que trust is generally incompetent. A benefit to the trustee personally is not designed. The Irue principle is, that a trustee, having the legal right. SUPERIOR COURT, NEW-HAMPSHIRE. 47 is entitled to ali its remedies ; and Courts of justice, Instead of restraining Lira, often compel him to exert them. Were; the law otherwise, all trust property would lie at the mercy of every invader. The cestui que trust cannot protect it, because not the legal owner ; and if the trustee may not, it is without protection. In no case is the propriety and neces- sity, of allowing legal protection to property, in the hands of trustees, more apparent, than in that of corporations, like the present, for charitable purposes. For it is most manifest, the charity can, in no other way, be protected. To hold that trustees, on the ground of a supposed want of interest, are incompetent to protect the subject matter of the trust, would destroy, not only all charitable corporations, where trustees are introduced, but all trusts whatever. In corporations, for the promotion of commerce, or the management of mere money concerns, it is not necessar}', nor always the case, that those, who contribute the funds, and participate in the profits, should be members of the cor- poration. Persons, having no interest in the funds, may be members of the corporation, and hold them in trust for those who are entitled to the profits. The trustees, in such a corporation, would unquestionably be competent in law, to protect all its rights. There is then no ground, for raising such an interest in the state, or such a trust for those, to be benefitted by the institution, as shall defeat ibe plaintiffs' rights. This is a private corporation, and of that kind the most favoured in law. And it has legal rights, if any corporation can have such rights. Any principle, which can be assumed, to de- prive this corporation of legal rights, will be equally appli- cable to every other corporation, of whatsoever kind. The most private corporation, that can be established for the purpose of trade, or the management of money concerns, can make out no better claim to legal rights. A corpora- tion, for the most charitable and benevolent purposes, sure- ly has, both by legal principles, and according to the com- 48 DARTMOUTH COLLEGE VS. WOODWARD. inoii opinion of mankind, rights, as inviolable, as those of & corporation, for the purpose of commerce and traffick. If these acts of the legislature can be supported, they can pass similar acts, in relation to any and every corporation. It is then for the defendant boldly to maintain, that no corpora- tion has legal rights ; but that all their property, and pre- tended privileges are held, at the mercy of the legislature. Corporations must claim all their rights, by virtue of grants from the state ; but they are not, for that reason, less secure or inviolable, than similar rights of individuals, derived from the same source. Peculiar privileges, grant- ed by the state to individuals, although intended to pro- mote the publick interest, become vested rights, and cannot be resumed. On what ground rests the distinction between these, and similar privileges, granted to private corporations? There is no secret or implied condition, to a grant, or char- ter of incorporation, that it may be revoked or annulled by the legislature, whenever it pleases. The British Parliament can, as it is held, abolish corpo- rations. So it can pass acts of attainder, and of pains and penalties. But neither can be done, by virtue of the ordi- nary and legitimate legislative power, which belongs to our legislature. According to the theory of the British gov- ernment, the Parliament is omnipotent. " A corporation may be dissolved by act of Parliament which is boundless, in its operations'^! 6). In modern times however, the ex- ercise of these extraordinary powers, which are entirely incompatible with the existence of private rights of any kind, has been seldom resorted to. The attempt was made, by the Bill introduced into Par- liament, in the year 1783, by Mr. Fox, for new modelling the charter of the East India Company. The attempt was resisted and defeated. The city of London, in their peti- tion against the bill assert " that it was not only a high and dangerous violation of the charters of the Company, but a (10) 1 Black. 484. SUPERIOR COURT, NEW-HAMPSHIRE. 49 total subversion of all the principles of the law and consti- tution of that country." Lord Thurlow termed it " a most atrocious violation of private property, which cut every En- glishman to the bone*" Mr. Pitt opposed it, as being " a daring violation of the chartered rights of the Company" (17). The bill did not pass. But the attempt was so strongly denounced, by publick opinion, that it ruined the party, which made it. In times of the greatest excess of arbi- trary power in England, resort was seldom had to this un- limited power of Parliament. The great attempt to destroy, or controul the corporations, in the reign of Charles II. was made by the oppressive use of judicial proceeding, through the servility of dependent judges. The charters of the city of London, and of the colonies of Massachusetts and Con- necticut, were declared forfeited on informations of quo warranto. But whatever be (he extent of this undefined and arbitra- ry power, of the British Parliament, I trust it will not be contended, that it has descended to our legislature. The taking away of the colonial charters, under colour of that power, is justly classed among the grievous oppressions, which led to our independence. "Chartered rights" were then deemed, of too sacred a nature, to be voted away, as the passions or caprice of a legislature might incline. Will it now be asserted, that the British Parliament or King, or both united, were competent to abolish, or new model the colonial Charters 1 If it could be done, by legislative power alone, they might, for they possessed the whole legislative power over thai subject matter. In the opinion of the Supreme Court of the United States, in the case of Terrett & al. vs. Taylor & al. before mentioned, it is said, "The title was indefeasibly vested in the church- es, or rather in their legal agents. It was not in the power ©f the crown to seize or assume il, nor of the Parliament (\7) Parliamentary Register ITS.'', 4. 'A iO DARTMOUTH COLLEGE VS. WOODWARD. unless by l!ie exercise of a power (he most arbitrary, com- pressive, and unjust, and endured, only because it could not be resisted." "The dissolution of the form of govern- ment did not involve in it a dissolution of civil rights, or an abolition of the common law, under which the inheritances of every man in the state were held. The State itself succeeded only to the rights of the crown"(I8). If the plainliifs forfeited none of these rights, by the revolution m government, the legislature had no more power over their rights, than previously existed, in the hands of some depository of power. The Parliament of Great Britain had no rightful power whatever over this corporation. The le- gislature of this state succeeded to all the power, which the King, who granted the charter had, and to no more. Tn England the creating of corporations appertains to the King, and he has all the legitimate power, that exists for dissolving them ; except what is vested in the judicial Courts(19). He can institute proceedings in the Courts, and for just cause obtain a forfeiture of all corporate rights and privileges ; and then regrant them, as he pleases. He may also grant charters, to old corporations, with new mod- ifications, which, if accepted, are binding. All this may (he legislature of this state do. But the King cannot abolish a corporation, or give it a new organization, or alter any of its powers or privileges, without its consent. This is the well established, and ac- knowledged doctrine of the common law(20). On the ground that the King cannot resume the grant of a corporate privi- lege, it is held that the giant of a franchise, already granted, is void (21). The King's grants, of corporate rights, bind him, as much as his grants of land. When therefore he has granted such rights, he cannot resume and regrant them, till it has been determined by due trial, in a Court of law, that they have become forfeited. (18) OCVanehsn. (i?) ] Black. 3. 472. l-Oj ! K.n«r «. Amonr, 2 T. R. 515. Kins* vs. Pasmore, 3 T. R. 24». SUPERIOR COURT, NEW-HAMPSHIRE. 51 The remedy for the King, in such case, was a writ of quo warranto : in place of which, in latter times, the infor- mation of quo warranto has been used, as being more con- venient. "A writ of quo warranto (says Judge Blackstone) is in tbe nature of a writ of right, for the King against him, who claims or usurps any office, franchise, or liberty ; to enquire by what authority he supports his claim, in order to determine the right. It lies also, in the case of the non- user, or long neglect of a franchise, or misuser or abuse of it." "The judgment, on a writ of quo warranto being in the nature of a writ of right, is final and conclusive even against the crown" (22). So far then from resuming his grants of corporate rights, at pleasure, the King was obliged to try his claim, for a forfeiture, like any other person, and if the determination was against him, the corporation was secured in the quiet enjoyment of them. Corporations forfeit their rights, by non user or misuser, and are to be vacated by trial and judgment (23). Their powers cannot be newly modified, or altered, without thein consent. In case of the offer of a new charter, to an old corporation, it may be accepted or rejected, as the corpora- tion pleases ; or part may be accepted, and part rejected (24). " During the violent proceedings, that took place in the latter end of the reign of Charles the II. it was among other things, thought expedient to new model most of the corporation towns, in the kingdom ; for which purpose, many of those bodies were persuaded to surrender their charters, and informations in the nature of quo warranto were brought against others, upon a supposed or frequently a real forfeiture of their franchises, by neglect or abuse of them"(25). Would the King, in those violent times have taken the trouble, of resorting to the Courts of law, if it had been supposed, that he might have resumed his grants, at (22) 3 Rlack. 202. 3. 2 his. 2S2. (23) Thin? vu. Pasmor<>, 3 T. R. 244.-9 Cranch 51. (24) 3 Kuir. 1050.—,; T. K. 2H>. 240 (25) 3 Black. 203. J'Z DARTMOUTH COLLKGtl VS. WOODWARD. pleasure. There was no pretence, that he could of his own authority, anil without the agency of the Courts, lawfully interfere with, or controul any of the rights of corporations. As successors to the King, then, the legislature have no power, to pass the acts in question. And it may be safely asserted, that before the change in the form of government, the plaintiffs could not have been rightfully deprived of their property or privileges, without a trial in due course of law. Do they now hold their rights by a tenure less secure, and more subject to arbitrary controul, than they did before the revolution ? If the legislature may annul or repeal grants of corporate privileges, what shall restrain them from doing the same with grants cf land ? What are to be the limits of this newly discovered authority ? Should the royal grants of land, made before the revolution, be examined, more in- stances of heedless extravagance will be found, than in any grants of corporate privileges. If one may be resumed, so may the other, for they both rest on the same principles for security. We know from experience, that the legislative power is of an encroaching nature. Permit the legislature, in this in- stance, to abolish a charter of corporate privileges, and there will be no ground left, on which they can be restrain- ed, from abolishing patents or grants of land. The great principle of security, for private property, will be destroy- ed. And let it be remembered that the attempt to vacate legal rights and titles, vested in individuals, has, in fact, been made by the legislatures of more than one of the states, in the Union. The only means of security is to abide by settled principles, and firmly resist the first attempt at en- croachment. The law affords the same security and protec- tion, for the enjoyment of franchises or privileges, as it does for other rights. An action for a disturbance of a franchise or privilege, is well known in law, and may be as easily maintained, either by an individual, or a corporation, as for any other injury. SUPERIOR COURT, NEW-HAMPSHIRE. 53 A.S then a grant of privileges, to an individual creates le- gal rights, which cannot be infringed by legislative acts ; and as there is no distinction, known in law, as to the effect of such a grant, when made to an individual, and when made to a private corporation, it follows, that the grant to the plaintiffs created legal rights, that were duly vested, and which of course cannot be infringed by the legislative acts in question. It is of no consequence, as it respects the right, whether the privileges, granted to the plaintiffs by their charter, are valuable, in a pecuniary point of view, or otherwise. They are essentially of the nature of private property, and consequently entitled to protection, like oth- er private property. The plainliffs, in their aggregate capacity, are entitled to the franchise of being a corporation, and of enjoying all the privileges contained in their charter, according to its provis- ions. The President of the College is entitled to the quiet enjoyment of his office, with all the privileges and perquis- ites incident to it. And so also, the other members of the corporation are, individually, entitled to enjoy their respec- tive privileges. In Miller vs. Spateman,(26) it is held, " That the law takes notice, that the natural members of the corporation, of whom the corporation consists, are not stran- gers to the corporation, but are the parties interested in all the revenues and privileges of the corporation, of which they are members." A corporation may take a grant for the benefit of their particular members." In the celebrated case of Ashby vs. White, where an individual member of the corporation sued for an infringement of his right of suffrage, to which he was entitled, as a corporator, among the reasons assigned by the House of Lords for their judgment, it is said ; " The inheritance of this privilege is in the corpora- tion aggregate ; but the benefit, possession, and exercise is in the persons of those who, by the constitutions of those charters are appointed to elect. And in all cases, where a (2G) i Satinil. 3ii. :')4 DARTMOUTH COLLEGE VS. WOODWARD. corporation hath such a privilege, the members thereof, in their private capacity, have the benefit and enjoyment there- of. It appears by other instances, that it is usual and prop- er for corporations to have interests granted them, which enure to the advantage of the members, in their private ca- pacities"^). Many cases are there stated of actions being maintained for the violation of such rights(28). Besides the right of the President to his office and emol- uments, each individual trustee has the privilege of being a member, and of acting according to the provision of the charter, in all matters, relating to the government of the cor- poration, and in the management of its property, and in the conducting of all its concerns. These privileges, that the members of the corporation hold, in their private capa- cities, constitute vested rights, which are subject to no con- troMl, but that of the law of the land. It is not a new doctrine, that in a free government, the legislative power, without any direct and express restric- tion, is incompetent io abolish, or take away vested rights. It results from the very nature and design of a free govern- ment. This is plainly and forcibly asserted by Judge Chase, in delivering his opinion, in the case of Calder vs. Bull. "The purposes, for which men enter into society, will deter- mine the nature and terms of the social compact ; and as they are the foundation of the legislative power, they will decide what are the proper objects of it. The nature and ends of legislative power will limit the exercise of it. An act of the legislature, (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be consid- ered as a rightful exercise of legislative authority. The obligation of a law, in governments, establishsed on express compact, and on republican principles, must be determined by the nature of the power, on which it is founded." " A (27) 3 HatselPs precedents, 221. 128) Walter vs. Hanger. Moore. 832.— Broeks Abr. Corporation, 8.1 SUPERIOR COURT, NEW-HAMPSIHRE. 55 law that destroys or impairs the lawful private contracts of. citizens ; a law that makes a man judge in his own cause ; or a law that takes property from A. and gives it to B. it is against all reason and justice for a people to entrust a leg- islature with such powers ; and therefore it cannot be pre- sumed that they have done it. The genius, the nature, and the spirit of our state governments amount to a prohibition of such acts of legislation ; and the general principles of law and reason forbid them. The legislature cannot change in- nocence into guilt, or punish innocence as a crime ; or vio- late the right of an antecedent lawful private contract ; or the right of private property. To maintain thai our fed- eral, or stale legislature possesses such powers, if they had not been expressly restrained would, in my opinion, be a political heresy, altogether inadmissible, in our free repub- lican governments"(29). If then a correct view has been taken of the powers of the legislature and of the rights of the plaintiffs, it would not have been competent for the legislature to pass these acts, if there had been no special restrictions on the legisla- tive power ; because they are not within the general scope of that power, and consequently void. II. There are special restrictions, on the power of the leg- islature, in the constitution of this state, which these acts violate. They violate thai part of the 15th article of the bill of rights, which provider, " that no subject shall be arrested, imprisoned, despoiled, or deprived of his property, immuni- ties, or privileges, put out of the protection of the law, ex- iled, or deprived of his life, liberty, or estate ; but by judg- ment of his peers, or the law of the land." If these acts are valid, the plaintiffs are deprived of their property, and of the " immunities and privileges," granted to them by their char- ter, by other means, than the judgment of their peers, or the (W) 3 I)all SS3 56 DARTMOUTH COLLEGE VS. WOODWARD. law of the land. The acts of (he legislature take away their fights and privileges, without any trial whatever. This provision of the Bill of rights was unquestionably de- signed to restrain the legislature, as well as the other branch- es of government, from all arbitrary interference with pri- vate rights. It was adopted from magna charta, and was justly considered by our forefathers, long before the forma- tion of our constitution, as constituting the most efficient se- curity of their rights and liberties. Lord Coke, in his commentary on magna charta, explains the phrase "by the law of the land" to mean " by due course and process of /aw." That is, no subject shall be deprived of his property, immunities, or privileges, but by judgment of his peers, or by due course and process of law. This then surely cannot be done by special act of the leg- islature, without judgment of peers, and without any process of law. To make his meaning still more plain, if possible, that Parliament was bound by this provision of magna char- ta, Lord Coke says, " against this ancient and fundamen- tal law, and in the face thereof, I find an act of Parliament made, &c. (30) directing certain summary and arbitrary pro- ceedings, by colour of which act, shaking ihisfundamental law, it is not credible what horrible oppressions and exac- tions, to the undoing o; infinite numbers of people, were committed by Sir Richard Empson and Edmund Dudley." " and the ill success thereof, and the fearful ends of these two oppressors, should deter others from committing the like ; and should admonish Parliaments, that instead of this ordinary and precious trial per legem terrae, they bring not in absolute and partial trials, by discretion"(31). It is sufficiently apparent, that Lord Coke understood this provision to extend to, and bind Parliament. Hence his complaint that Parliament had in that instance violated it, (30) Stat. 11, Hen. 7. (31) 2 Inst. 51, SUPERIOR COURT, NEW-HAMPSHIRE, 51 by dispensing with trials according to the law of the land ; and authorizing, in certain cases, the exaction of forfeitures, on trials by the arbitrary discretion of magistrates. For even that act of Parliament, so justly denounced for its " horrible oppressions," did not, like the present acts of our legislature, attempt to devest, and take away private rights, without any trial at all. The construction of the provision has always been according to Lord Coke's opinion. It has never been doubted, that Parliament was morally bound by it. But the difficulty in England has been that Parliament, being omnipotent, in all matters of civil institution, is too powerful for the constitution, and cannot be restrained. The same construction has been uniformly given to this provision, in the Courts of the different states of the Union. The Superior Court of South Carolina, in the case of Bow- man vs. Middleton, decided that an act of the colonial legisla- ture of 1712, taking property from one, and vesting it in an- other, without trial by jury, was void ; because it infringed this provision of magna charta, which bound the legislature. They say, "that the plaintiffs can claim no title, under the act in question, as it was against common right, as well as against magna charta, to take away the freehold of one man, and vest it in another : and that too to the prejudice of third persons, without any compensation, or even a trial, by the jury of the country, to determine the right in question. That the act was therefore, ipso facto, void. That no length of time could give it validity, being originally found- ed on erroneous principles" (32). In a subsequent case, in the same Court, Waties, J. said he had gone into a long in- vestigation of the technical import of the words lex terrae, " that they meant the common law, and ancient statutes, down to the time of Edward II. which were considered, as part of the common law. That this was the true construc- tion, given to them, by all the commentators on magna char- (32) 1 B*y. 252. .iU DARTMOUTH COLLEGE VS. WOODWARD fa from whence they were adopted by (he constitution of South Carolina. If the lex terrae meant anylaw,which the legislature might pass, the legislature would be authorized by the constitution, to destroy the right, which the consti- tution had expressly declared should forever be inviolably preserved. This is too absurd a construction to be the true one. He understood therefore the constitution to mean, that no freeman shall be deprived of his property, but by such means, as are authorized by the ancient common law of the land. According to this* construction the right of property is held under the constitution, and not at the will of the legislature" Q&). Of the same import is the opinion of the Supreme Court of Massachusetts. "If this (an act of the legislature) is to be construed a disposal, by the leg- islature, of lands owned by that proprietary, (under which the plaintiff claimed) or by any individual, claiming by their grant or allotment, it militates directly, with a well known provision of magna charla, revived and enforced in the bill of rights, prefixed to the constitution of government, for this Commonwealth; that no subject shall be deprived of his property, but by the judgment of his peers, or the law of the land $ not any private and special statute, for the pur- pose, but that taw, which affects alike, under the same cir- cumstances, the whole territory and community" (34). This provision of magna chart a is introduced into the 5th article of the amendments of the constitution of the United States. The terms, in which it is there expressed, show conclusively that it was understood in the same sense, that we contend it always has been understood. They are, that "no person shall be deprived of life, liberty, or property, without due process of law." This is manifestly design- ed to secure a trial, according to the established laws of the land ; and it certainly restrains the legislature, from depriv- (33) 2 Kay. 59. (34) Little vs. Frost, 3 Mass. R. 117. SUPERIOR COURT, NEW-HAMPSHIRE. 6$ ing an individual of his life, liberty, and property, without such trial. The two phrases " law of the land" and "due process of law," as used in the two constitutions, doubtless hare the same meaning. If otherwise, however, the result will be the same. For the legislature of this state is as much bound by this provision, in the constitution of the United States, as they would be, were it contained in our own constitution. If the plaintiffs are deprived of their property by tJie acts in question, it certainly has not been done by due process of law. The law provides no such summary process, by which individuals may, without trial be deprived of their rights. Thus has this provision been always understood, as im- posing a restraint on the legislative power, from the time it was first introduced into magna charta, down to the present time. It has been incorporated into the constitution of most of the states of the Union, and it is believed, that not a single judge, or commentator, either before, or since it was introduced into our constitution, has attempted to give it a different meaning. The terms used are general, em- bracing the legislature, equally with the other departments of government ; and any reaion, which can be assigned, for excepting the legislature from this restraint, may, with equal force, be applied, for excepting either, or both Ihe other departments. Indeed if this provision were not ap* plicable to the legislature, it would be idle and useless. The previous part of this article of the bill of rights, together with others, regulating the manner of trials, are more espe- cially designed, to restrain the judiciary. This seems to be the only provision, to be found in the constitution of this state, against the legislature's passing special acts, for the regulation of individual cases. It restrains the legislature, from passing acts, which spend their force on one, or more individuals, and are not to apply to others, under similar circumstances. The law of the land is applicable to the community at large, £0 DARTMOUTH COLLEGE VS. WOODWARD. The greatest if not only effectual, security, against legis- lative oppression, is, that the law must be general, embrac- ing all under like circumstances, and including the legisla- tors among the rest. An oppressive law, applicable to the whole community, will soon be repealed. But if the legis- lature, under the influence of prejudice, or passion, to which all bodies of men, however constituted or selected, are occa- sionally subject,can pass acts, havingthe force of laws,to apply to a soli'aryindividualonlyjhe maj r be destroyed, before pub- lick sympalhy can be excited, for his relief. A law, according to any just definition, that ever has, or can be given of it, must be genera! in its operation. It is a rule of conduct, for all, within fhe principle it establishes. An act of the legisla- ting, prescribing a particular rule, for the government of one or more individuals, therein named, would not have the force of law, but would be void(35). This principle is not in- consistent with the power of the legislature to pass private statutes. Such statute 8 !, instead of taking away, confer priv- ilege>3 ; and whatever regulations are imposed, in considera- tion of the privileges granted, become binding, by the assent of the parties, at whose application, the statutes are passed. If this construction, which baa always hitherto been put on the article of the bill of rights, under consideration, is to be still abided by, it is conclusive in favour of the plaintiffs. Their charter grants them certain " immunities and privi- leges." This article provides, in effect, that {hey shall not be deprived of these " immunities and privileges," but by due trial, had according to the well known general laws of the land, which are binding on the whole community. The acts of the legislature, which are made for the purpose of depriving them of their immunities and privileges, without any trial whatever, must therefore be declared to be void. These acts violate also the 23d article of the bill of rights, which provides fhat, " retrospective laws are highly injuri- ous, oppressive and unjust. No such laws therefore should (35) Holden vs. James, 11 Mass. Rep. 39C. SUPERIOR COURT, NEW-HAMPSHIRE. 61 be made, either for the decision of civil causes, or the pun- ishment of offences." T. ! iere can be no ground for dispute, as to what consti- tutes a retrospective lav,'. In the case Calder vs. Bull, Judge Chase says, "every law, that takes away, or impairs rights, vested agreeably to existing laws, is retrospectivc''(36). The correctness of tills definition of retrospective laws has never been disputed, as is known. It was adopted, and made the ground of decision, in the case of the Society vs. Wheeler, in the Circuit Court of the United States, in this District. In the very able opinion there delivered, it is said, " upon principle, every statute, which takes away, or impairs vested rights, acquired under existing laws, or cre- ates a neiv obligation, imposes a new duly, or attaches a new disability, in respect to transactions or considerations already past, must be deemed retrospective ; and this doc- trine seems fully supported by authorities" (37). It is not only against natural justice, but utterly inconsistent with every correct idea of a law, that it should be made to ope- rate retrospectively on past actions, and vested rights (38). This article prohibits the passing of retrospective laws of any kind, as well such as affect the rights of property, and individual privileges, as those, made for the punishing crimes. The latter, which are generally called ex post fac- to laws, and which are no more unjust than the former, have been denounced, by a most respectable authority, as being a more unreasonable, and cruel method cf ensnaring people to their ruin, than that adopted, by the worst of the Roman, emperors, who wrote his laws in a small character and hung them up on high pillars, to prevent their being read(39). It is hoped, that it has been already sufficiently shown, that the plaintiffs have vested rights, acquired under ex- isting laws. If so, these acts, which infringe their rights, (36) .3 Hall. .301. (.37) J(.:.ll. JOS. (:>H) Dnsh vs. Vsri Klonck., 7 John JR. 47" !■■,[') 1 Mack, afi. 6*2 nARTMOlTTH COLLEGE VS. WOODWAAU. are retrospective, and void. The plaintiff's rights were per- fect and complete. They were in the full enjoyment of their property and privileges, and by no existing law, could they hare been ousted or molested. If this article does not protect such rights, it is not easy to perceive what rights are protected by it. The 37th article provides, that the three essential powers of government "ought to be kept, as separate from,and inde- pendent of each other, as the nature of a free government will admit, or as is consistent with that chain of connection, which binds the whole fabrick of the constitution in one in- dissoluble bond of union and amity." This article has al- ready been noticed, as bearing on the general powers of the legislature. It may also, with propriety, be considered as imposing a special restraint against, the legislature's exer- cising judicial power. The limitation, with which this great elementary principle is adopted, does not, in any degree, lessen its force, in relation to the question under considera- tion. The bill of rights establishes general principles, by which the constitution of government was formed, and ac- cording to which, it is to be construed. The three depart- ments of government are connected together, and in certain particulars, dependent on each other. The constitution de- clares the extent of this connection and dependence. Pow- ers are, in certain cases and for special purposes, given to one department, which partake of the nature of the general powers of an other department. This qualification was ne- cessary to preserve consistency in the different parts of the constitution. For the conducting of impeachments, for in- stance, the legislature is vested with judicial power. It would therefore have been absurd, after this express grant of judicial power, in that case, to have declared, without qualification, that the legislature should exercise no judicial power. By the proper construction of this article, each depart- ment is restrained, from exercising any of the general pow- SUPERIOR COURT, NEW-HAMPSHIRE. 63 ers of another department, except in cases, where it is es- pecially authorized by the constitution. A construction that should leave each department at liberty, to exercise the powers of another, whenever it might deem it expedient, would render the provision of the article useless. Indeed the language admits of no other construction than that be- fore stated. Ti:e substance is, that the three powers of government shall be kept, as separate and independent, as is consistent, with the nature of a free government, and the provisions of the constitution. The free government, here meant, is doubtless one, where the rulers have no powers, other than what are delegated to them, by the people. Is it inconsistent with the nature of such a government, or with the provisions of our constitution, that thclegislature should abstain from the exercise of judicial power, in cases where that power is not granted to them, but is granted to another department? We have already seen, that no free govern- ment can exist, without such a restraint on the legislative power. Under the first point, it was shown, that the general leg- islative power did not extend, to the devesting of private rights, and that the passing of these acts which take from the plaintiffs their rights, and give them to others, was sub- stantially an exercise of judicial power. That the legisla- ture did not examine witnesses, and hear the parties, before they decided on their rights, shows only the extent of the oppression, and the total incompetency of the legislature to exercise judicial power, in such cases. As then no special authority is given to thclegislature, to exercisejudicial pow- er, in this or similar cases, the acts violate also this article of the constitution. III. It is contended that the acts violate the 10th section of the 1st article of the constitution of the United States, which provides that "no state shall pass any bill of attain- der, ex post facto law, or law impairing the obligation of rmtracts.'" r i DAKTMOl Til COL1.KGE VS. VVOOMVAKD. Tiiis comprehensive provision was intended as well k> supply Hie omissions and deficiencies, in (he constitutions of the several sinter, as to afford an addilional and uniform se- nility, Cor private rights throughout the United States(40). The charter of 1709 is a contract, within the true mean- ing of that term, as used in the constitution of the United States. Everv grant, whether from a private individual, or from a state, is a contract. A grant from a state being necessarily made, with greatdeliberation and formality, con- stitutes a contract of the most solemn nature. It is of fa- miliar knowledge, that a grant from one individual to anoth- er, either of lands, or of incorporeal rights, amounts in legal estimation to a contract. In like manner, a similar otcP(43). The same doctrine may be found in the reports of cases, where this point has been incidentally discussed. For it seem* T4.3; 1 Kyd Cy- SUPERIOR C0TTRT, NEW-HAMPSHIRE. &? never to have been seriously contended, that a private cor- poration could be established, without the voluntary consent of the corporators (44). The acceptance is always averred in pleading, when a right is derived under a charter; and issue may be taken on the fact of acceptance, as is done in the case of the King vs. Pasmore(45). So the non acceptance may be averred, to defeat the operation of a charter(46). Th'i3 shows conclu- sively that the grant is a contract, and not a law, to be re- pealed at the pleasure of the legislature. Judge Blackstone in pointing out the difference, between a contract and a law, says " In compacts, we ourselves determine, and promise what shall be done, before we are obliged to do it ; in laws we are obliged to act, without ourselves determining, or promising any thing at all" (47). That the contract was made on a sufficient consideration, or motive, is apparent, from the recital in the charter of the benefits and advantages expected. The trustees, by ac- cepting the charter, completed the contract, and incurred an obligation, which, they say, they have faithfully per- formed. If they have not, the law affords an ample reme- dy- It is impossible to have any just or correct idea of a cor- poration, without considering the creation of it, as resting in a contract. In the case of the King vs. Pasmore, Judge Buller says " The question referred by the jury, for the opinion of the Court, is whether the letters patent were or were not duly accepted by the persons, to whom they were granted" " And I do not know how to reason on this point better, than in the manner urged by one of the relators' council ; who considered the grant of incorporation to be a (44) Rex vs. Vice Chancellor of Cambridge, 3 Burr. 1656.— Newling vs. Francis, 3 Term R. 197.— King ts. Pawnorc, S TermR. 240.— Ellis vr Marshall, 2 Mass. R. 26> (45) 3T.R. 200. (46) Ibid. '47) 1 Black, is: 68 DARTMOUTH COLIAGR VS. WOODWARD. compact between the crown and a certain number of indi- viduals" (IK). A grant, by one part}', and an acceptance of it by the other, necessarily involves the idea of a con- tract ; and without considering it as a contract, there can be no reasoning about it. There can be no question, wheth- er a charter of incorporation, be of the nature of a contract, that cannot be repealed, or of a law, that may be repealed. If a law, whence the necessity or propriety of acceptance by the grantees ? Must a law, after it is duly enacted, be accepted or assented to by an individual, in order to make it binding on him ? So a charter of incorporation may be surrendered, and by the surrender, the grantees are released from all obligations arising under it. Can individuals, in that manner refease themselves, from the obligations imposed on them by a law ? If then the charter, creating this corporation, must ac- cording to established principles, be held to be a contract, within the meaning of the constitution of the United States, the plaintiffs are still entitled to enjoj r all the privileges and immunities, thereby assured to them. And consequently the acts of the legislature, which so manifestly impair the obligation of that contract, by violating those privileges and immunities, is unconstitutional and void. It is not easy to foresee all the consequences, of adopting new and untried principles. It might be worth while to consider, for a moment what is to become of the property of a private corporation, abolished by a legislative act.' — The doctrine of the law is, that the lands of a corporation, in case of a dissolution, by whatever means, revert to the grantors. If the old corporation is abolished, 'what shall prevent the grantors or their heirs from asserting their claims to the lands, which have been granted it ? Their right would, in that event, seem to be unquestionable. Is then another strain to be made, on the principles ofthecon- (48) 3 Term R. 245. SUPERIOR COURT, NEW-HAMPSHIRE. 69 stitution, by taking away from (he grantors their right, to the reversion of the lands, for the sake of vesting them, in the new corporation, according to the design of the acts in ques- tion ? But it must be remembered, that a part of the landed property of the old corporation, and that not the least valu- able> is situated under a jurisdiction, over which the legisla- ture of this state, has no controul. Is it to be expected, that (he state of Vermont will, without an effort to assert ils rights, permit lands, lying within its own jurisdiction, which it gave to Dartmouth College, for certain uses, to be trans ferred to another institution, and converted toother uses ? If these acts are held to be valid not only this College, but every other literary and charitable institution must become subject to the varying, and often capricious will, of the legislatures. Their revenues will be blended ,with the publick revenues, and liable to be applied to any use, which the emergency of occasions may, in the opinion of the legislatures, require. The liberal and benevolent, when dis- posed to aid such institutions, can have no security, that their donations will be applied, to the objects intended. A striking instance of this has already occurred. The individ- ual, at whose solicitation, these acts were passed, in a de- vise of property, for the support of certain professorships, in the newly established University, fearing that some future legislature would apply his donation, to other purposes, has expressly provided, in case these acts shall be "rendered nu- gatory, be altered, or repealed, tmless by the consent of the new trustees, as now constituted," that his devise shall there- by become void ; and the property be transferred to other uses. This idle attempt, to restrain the power of a future legislature, so as to prevent its following the example, now set, shows not only the fears, that donations will be misap- plied ; but also the impossibility of securing them to any certain use, while subject to ihr arbitrary (ontroul of a leg islature. TO DARTMOimi college vs. woodward. The attempted innovation would affect the character 6T our literary institutions, not less than their revenues. To be useful and respectable, they must be stable and indepen- dent. So obvious is this, that in most countries, under ar- bitrary governments, the universities and literary establish- ments, of the higher order, have been permitted to enjoy great privileges, with as much independence, as could con- sist with the nature of such governments. If our semina- ries of learning are to be reduced, to a state of servile de- pendence on the legislatures, and are to be new modelled, tj answer the occasional purposes of prevailing political par- ties, all hopes of their future usefulness must be abandon- ed. In the early settlement of New-England, the establish- ment of Colleges was among the chief cares of the wisest and best men of that period. They have remained to the present time, substantially on the same ancient model ; and Trith scanty means have been eminently useful. The pres- * bold experiment, if carried into effect, will probably terminate in their final destruction. Mr. Sullivan. — The ca3e, presented to the considera- tion of the Court, is not that of a private corporation, com- plaining that the legislature had oppressively and without a trial seized on property held to its own use ; it is not .the case of a private corporation complaining that the legisla- ture had wantonly deprived it of any means of acquiring property, which had, at any time, been granted to it; but it is the case of a publick corporation, created expressly — created exclusively for the publick interest, complaining that the legislature, the guardians of that interest, have under- taken, without consent, to alter and amend its charter. Are the acts to amend the charter, and to enlarge and improve the corporation of Dartmouth College, constitution- al ? This is the question to be decided by the Court. SUPERIOR COURT, NEW-HAMPSHIRE. H The right of the Court to declare those acts of the legisla- ture, which are repugnant to the constitution, to he uncon^ stitutional and void, is not denied. If, for example, the leg- islature should pass an ex post facto law, making that act a crime, which was innocent at the time of its being done, it would be not only right, but the duty of the Court to pronounce it void. When the constitution prohibits the passing of particular laws, and the legislature does pass them, the safety of the people requires, that the Court should in- terpose and prevent their operation. While it is agreed, that the Court has power to declare every act of the legis- lature, which violates the constitution, to be unconstitution- al and void ; it must also be agreed, that it is a power, which ought never to be exercised, but with the greatest caution. It is important to the peace and happiness of the community, that the most perfect harmony should exist be>» tween the different departments of government. The ju- dicial department should never pronounce an act, deliberate- ly passed by the legislature, to be unconstitutional in a case of a doubtful nature; its repugnancy to the constitution should be plain, palpable, indisputable, in order to justify such a decision. Courts will presume, that every act, which is passed, comes within the constitutional powers of the legislature. I shall attempt, in the first place, to show, that the Cor- poration of Dartmouth College was a publick corporation. If it was, no doubt can be entertained, as to the right of the General Court to alter and amend its charter; in such a manner as, in their judgment, would best promote the pub- lick welfare. Whether this corporation was publick or private, is not to be determined by considerinsr, whether it was founded or endowed by the bounty of the government or by that of an individual. — It is said by Lord Hardwir.ke, that " it is (he cxtensivaiess of the objects to be benefitted, that constitutes. 72 DARTMOUTH COLbEGB VS. WOODWARD. » charily o publick or a private one"(l). Willi equal pro- priety it may be asserted, that it is the extensiveness of the objects or persons, for whose benefit a corporation is creat- ed, that shows it lo be of the one description or the other. A corporation, erected for the benefit of its own members, holding property and exercising its powers and franchises., for I heir use and advantage only, is private ; so also, is a corporation, holding property in trust for a number of indi- viduals, and exercising its powers and franchises for the ad- vanlage of those individuals alone : but a corporation, cre- ated for the benefit of the inhabitants of a whole State or Province ; holding property for their use, and exercising all ils powers and franchises for their advantage is a publick corporation. For whose benefit was Ibis corporation erect- ed 1 For the benefit of the persons composing it, or, for that of the publick? Lei the charter answer the questions. The language of the charter is, " That we considering the prem- ises, and being willing lo encourage the laudable and charita- ble design of spreading Christian knowledge among the sav- ages of our American wilderness, and also, that the best means of education be established in our Province of New- Hampshire /or //ie benefit of said Province, do of our spe- cial grace, certain knowledge, and mere motion, by and with the advice of our Council for said Province, by these pres- ents will, ordain, grant, and constitute, that there be a Col- lege, erected in our said Province of New-Hampshire, by the name of Dartmouth College, for the education and instruction of youth of the Indian tribes in this land in reading, writing, and all parts of learning, which shall appear necessary and expedient for civilizing and christianizing children of pagans, as well as in all liberal arts and sciences ; and also of English youth and any others. And the Trus- tees of said College may and shall be one body corporate and politick in deed, action, and name, and shall be called, fl) a Atkyns. 8i>. SUPERIOR COURT, NEW-HAMPSHIRE. 73 named, and distinguished by the name of the Trustees of Dartmouth College." This corporation, then, as its char- ter shows, was established, not for the advantage of the corporators ; not for the advantage of a small number of individuals ; but for the benefit of the whole people cf the Province of New-Hampshire. As the end, for which private corporations are establish- ed, is the benefit of individuals ; and as all the rights, priv- ileges, and franchises, conferred on them, are granted with, this view ; individuals have always a direct, a beneficial in- terest in the property held by such corporations ; an inter- est which they may transfer to others — which may be taken for their debts — and which, in the event of their death, de- scends to their representatives. But as the end, for which this corporation was erected, was to promote the welfare of the whole community ; as all its rights, privileges, and fran- chises were granted for this purpose, neither the corpora- tors themselves, nor any other individuals had any benefi- cial interest in the property held by the corporation ; they had no interest that could be transferred to others ; none that could be taken for their debts ; none that could de- scend to their representatives in case of their death. The corporation was a mere instrument to effect the important publick purposes, for which it was instituted. A publick corporation, by force of the term, whether it has the government or an individual for its founder, must mean a corporation erected for the publick benefit. It appears from the charter, that the corporation of Dart- mouth College was established for the express, the avowed purpose of promoting the welfare of a whole Province. It was an instrument, formed to attain objects, in which no in- dividual had a particular interest, but in which the commu- nity had a deep one. It was vested with power to hold prop- erty in trust for the publick, but it could hold none for the nse of the corporators. It was clothed with various pow 11 M DAKTMOt'TH COLLEGE VS. WOODVVAttU. ers, capacilies, and franchises, all of which were lo be ex- erciscd for the benefit of Ihc publick, but not one of them: for the advantage of its own members, or of any individuals whatever, In short, it was created — it existed only for publick purposes. If a corporation of this description be not a publick one, then, in rr?y opinion, no publick corporation over did, or ever can exist. If this corporation was a publick one, the right of the Gene- ral Court to alter and amend its charter must be clear. All English writers who treat of corporations., agree, that they maybe dissolved by an act of the government('2). If the legislature have power to dissolve corporations, they may, without doubt, alter and amend their charters. Judge Swift in his system of the laws of Connecticut observes, " It is manifest that the legislature have power to dissolve or alter all corporations of a publick nature" (3). In this and in other states of the Union, publick corporations have been altered, modified, enlarged, and restrained in almost number- less instances, and the right of the legislatures to do this cannot justly bb questioned. In the case of town corpora- tions, whose limits arc fixed by charier, the Genera! Court has repeatedly altered them. Towns have besn divided i their limits have been contracted or enlarged., at the pleasure of the legislature, against the will and the remonstrances of the towns interested. The limits of the towns of St rat ham and Newmarket were extended, from the banks lo the chan- nel of Exeter river, in order to subject them to a heavy bur- then, while the towns were opposing the extension with their utmost might. The town of Pembroke aiTords another ex- ample of the exercise of this power. It will be proper to mention the circumstances of this case, because the right of the legislature to extend the limits of towns was considered by the Court. — Pembroke was indicted for not repairing a bridge over a certain river. Their defence was, that the (2) 1 Hlnck. Com. 4SS. — 2 Kvd cm Corporations. 4i~. (3) 1 Vol. '_\>». SUPERIOR COURT, NEW-HAMPSHIRE i. SUPERIOR COURT, NEW-HAMPSHIRE. 8* «ration of this the Indians released their claims. The act, exempting the lands from the payment of taxes, was repeal- ed, and the lands were taxed. The court decided, that the repealing act violated this article in the constitution. These cases only show, that if a state makes a grant of lands for a valuable consideration, the legislature of such state cannot pass an act to repeal the law by which the lands themselves or any privileges annexed to them are granted. Neither of them has the remotest tendency to show, that a charter of incorporation is a contract within the meaning of the consti- fution. No court has ever so decided. If, when a charter of incorporation is granted, any altera- tion of it, without the consent of the corporation, impairs the obligation of a contract within the meaning of the constitu- tion of the United States, then the state legislatures have no power to alter the limits of a county — or a town — or a parish. Not a single new burthen — not a single new du- ty, can they impose upon either. All the laws of this state and of other states of the Union, limiting the powers and taking the rights of Banks ; imposing new duties upon them, and subjecting them to penalties for not performing those duties, are void. Little did the makers of these laws imag- ine, that if they deprived corporations of a single right or privilege — if they limited any one of their powers, to pre- vent the publick from suffering serious and distressing evils, that they violated the constitution of the United States. — The most sharp sighted adversary of the constitution did not perceive, that this article would ever prevent the state legislatures, from passing such laws as they thought proper, in relation to the civil institutions existing within the states. If this be the true construction of the article, and it had been so understood, when the constitution was proposed to the consideration of the people, it would have given a death blow to the instrument. " A constitution is the form of government delineated by 84 DARTMOUTH COLLEGE VS. WOOD WARM. the mighty hand of the people." It is the solemn expres- sion of their will. Their intention should always guide in its construction. If Courts should extend its operation be- yond that intention, they would substitute their own will, in the place of the will of the people. They might in this w*y, convert a wise and salutary provision in the constitu- tion, into an instrument of injustice and oppression. In order to ascertain the true meaning of this article then, we should always keep in view the intention of the people — the particular evils contemplated by them, and against which they designed to guard. This is the polar-star, that should direct us in its construction. Without this rule to guide us, such an extended interpretation may be given to this provis- ion, as to despoil the state legislatures of most of their powers. They may be left, indeed, with the empty name of sovereign, but with scarcely an attribute of sovereignty. If this rule be disregarded, the time may come, and that time may not be distant, when it will be denied that the state legislatures have power to pass any law for the limita- tion of actions founded on contracts. It might be contend- ed, that they have no authority to pass such a limitation act, with far more plausibility, than that they have no authority to alter the charter of a corporation. It might be said, that a limitation act violates the constitution of the United States, because it not only impairs, but destroys the obligation of contracts. It is suggested, that there is a distinction be- tween the obligation of a contract, and the remedy given by the legislature to enforce that obligation ; that the remedy may be modified, as the legislature may think proper, with- out impairing the obligation of the contract. Precarious in- deed is the right of the state legislatures to pass such laws, if that right has no better foundation, than the suggestion that has been mentioned. This suggestion, that a limita- tion act is only the modification of a remedy and does not impair the obligation of contracts, is entirely unfounded,, It SUPERIOR COURT, NEW-HAMPSHIRE. 85 is manifest, that the obligation of one party to perform his contract can exist only in consequence of the remedy est the other party to enforce its performance. Take from ono party his remedy to compel the performance of a contract, and the other party is not obliged to perform it — his obli- gation is destroyed. A limitation act takes away all rem- edy. It is further said, that a limitation act does not take away the remedy of the creditor, but only establishes, that certain circumstances shall be evidence that the contract has been performed. This suggestion is as unfounded as the other. Courts of law say expressly, that the debt ex- ists notwithstanding the statute of limitations, but that the creditor is deprived by it of his remedy(12). But what circumstances does the law establish, as evidence of the performance of the contract? There can be no circumstance from which performance can be inferred, but the acquies- cence of the creditor beyond the period of limitation. If this be evidence of performance, then, if a man bring an action upon a note of more than six years standing, the de- fendant plead the general issue, and a verdict pass against him ; he may move in arrest of judgment and prevail in his motion ; because the acquiescence of the plaintiff, which is proof of payment, appears on the record. But all the au- thorities agree, that a motion in arrest of judgment in such a case could not prevail. In order that the estates of deceased persons may be set- tled, in a reasonable time, the legislatures of the different states have enacted laws, that creditors, who do not exhib- it their claims against such estates, within limited periods, shall be barred from recovering them. These laws impair the obligation of contracts. They furnish no evidence, that the contracts have been performed, but merely take (12) 1 Saunder's Rep. 283. a 2 — 2 Sauti. f, .». r. — _ 2 Pew Williams 375. 4 Gwil. Hat. -iS-i.--', Bitrr 2C.V*. *J6 DARTMOUTH COLLEGE VS. WOODWARD. ,away the remedy of (hose creditors, who neglect to exhib- it their claims. The legislatures of the different states are constantly making laws on the subject of contracts. The welfare of the people requires them to exercise this power. The laws, thus passed by them, frequently affect existing con- tracts and impair their obligation. But these laws must all be regarded, as repugnant to this provision in the constitu- tion unless its construction be limited by considering the intention of the people ; the particular evils they had in view, and which it was their design to prevent. This charter, it is said, is a grant ; but it is only a grant of powers for publick purposes. The trustees were publick agents. If the legislature should, by an act or resolve, ap- point a number of individuals as agents, for the purpose of effecting some important object of a publick nature, every one would say, that they might take from these agents any powers or authorities, that had been granted, or might con fer any new ones at their pleasure. Suppose the legislature should think proper, to make them a corporation, for the sole purpose of better promoting the object in yiew, they would be agents of the publick still, and as much under leg- islative controul after their incorporation as before. To be- lieve the contrary is to suppose, that there is some magick in the charter, that instantly makes the deputy superior to his principal ; that raises the servant above his master. If the trustees were publick agents, and the General Court could not limit, or take any powers that had been conferred on them without violating the constitution of the United States, » DARTMOUTH COLLEGE VS. WOUDW AKD. will be made. To have required rest riel ions on the leg- islatures of the slates, in such a case, would have betrayed a species of delirious jealousy, never entertained by the reflecting and enlichlened people of this country. It is objected, that these acts are repugnant to that arti- cle in our bill of rights, which declares, 4< that, no subject shall be arrested, imprisoned, despoiled, or deprived of his properly, immunities, or privileges, put out of the protec- tion of the law, exiled, or deprived of his life* liberty, or estate, but by the judgment of his peers, or by the law of the land." The trustees complain that they have been de- prived of their properly. But what property was this arti- cle intended to protect? It was unquestionably that prop- erty, in which a man has a direct, a beneficial interest; prop- erty which he holds to his own use ; and for which he is en- titled to a compensation, when taken from him. If the prop- erty, held by the trustees, has been taken from them, which is denied, they had no beneficial interest in it ; they did not hold it to their own use : they were entitled to no com- pensation for its loss. Have these acts made the trustees poorer than they were ? This cannot be pretended, without accusing them of a breach of trust — of appropriating to their own use properly belonging to the publick. I entertain too high a respect for the character of the trustees to suggest or to believe this. Will the Irustees avow, that they be- lieve themselves to be entitled to a compensation for this property ? I am confident they will not. So far then, as respects the taking of property, they complain where no in- jury has been sustained. —But how far does this article pro- tect property, in which a man has a beneficial interest? So far, that it cannot be taken from him, but by the judg- ment of his peers or by the law of the land. Surely, if the property of a corporation or of an individual be taken by an act of the legislature, it is taken by a law of the land. Every government has power to take private property r SUPERIOR COURT, NEW-HAMPSHIRE. 89 when required by the publick good. This power is clearly recognized by the twelfth article in our bill of rights. It is there said, "That no part of a man's property shall be tak- en from him or applied to publick uses, without his own con- sent, or that of the representative body of the people." It has been the practice of the General Court, ever since the adoption of the constitution, to pass laws to authorize the taking of private property for the purpose of making high- ways, turnpike roads, canals, &.«. and their right to do it has been uniformly recognized by our courts of law. But it is said, that the General Court has no power to au- thorize the taking of a man's property by a private act ; that it can be done only by publick, standing laws, which must operate equally on all the citizens of the state. This is extremely incorrect. The act to regulate the extinguish- ing of fires, passed in April 1781, authorizing the firewards of the town of Portsmouth to pull down, blow up, or remove houses or other buildings, is private. All our acts, creating turnpike corporations, canal companies, &c. and authorizing them to take the property of individuals, are private. Our courts have always regarded them as laws of the land. In these cases, property is taken from the owners not by pub- lick, standing laws, operating on all the citizens of the state, but by private acts operating on a small number of individ- uals. The legislature and the courts of this state are coun- tenanced by the legislatures and the courts of other states, in considering such private acts as have been mentioned, as laws of the land. The constitution of Massachusetts has precisely the same provision, as that mentioned in our bill of rights. Yet the General Court of that Commonwealth has, in frequent instances, created turnpike corporations, canal companies, &.c. and authorized them to take the prop- erty of individuals. Their courts, as well as the legisla- ture, have always considered these acts, as laws of the land 13 90 DARTMOUTH COLLEGE- VS. WOODWARD. within the meaning of the constitution. They have been considered in other states also as laws of the land. It is objected, that these acts are retrospective, because they deprived the trustees of vested rights, and are, there- fore, void. Rules are often adopted in relation to govern- ment, which appear plausible in theory and arc indeed true to a certain extent, but which can never be carried into ef- fect, according to the terms, in which they are expressed. No political axiom is more frequently repeated than this, lhat the legislative, executive, and judicial departments of government must be kept separate and distinct. Yet the states, that have adopted th's maxim in its most extensive terms, have blended, in some degree, the authorities of these different departments. They have given to the governour, a qualified negative on the legislative, which is an exercise of legislative power; they have made the senate a court for the trial of impeachments, which is an exercise of judicial authority. They have even vested in the legislature the executive power of pardoning ofFcnces(13). In the same manner, those states, that have adopted the maxim that ret- rospective laws are oppressive and unjust, and have pro- hibited their being passed, have, in many instances, depart- ed from it, and passed laws of this description. Our bill of rights declares, that retrospective laws should not be made for the trial of civil actions or the punishment of offences. This scciiis to be the language of caution rather than of prohibition. It shews, lhat there was in the minds of the framers of our bill of rights "a conflict between jealousy and conviction ;" — a dread of retrospective laws in general without any restraint, and a conviction that in some case* they must be passed. Laws are frequently made, that. strictly speaking, are retrospective — they deprive the citi- zens of vested rights ; yet they are allowed to be constitu- tional. The limitation act, operating on demands, that ex- (15) Sec 47th Number of the Federalist, by Mr. Madison. SUPERIOR COURT, NEW-HAMPSHIRE $\ isted before it was passed, is retrospective ; but courts in this state have decided it to be constitutional. The decis- ion has been the same in Massachusetts^ 4). A citizen of Massachusetts conveyed to his four sons certain lands in equal portions in fee simple. Three days after the conveyance, the General Court of that Common- wealth made a law, by which it was enacted that all estates, which had been or which should be conveyed to two or more persons, should be deemed to be tenancies in common, unless it should be manifestly the intention of the alienor, that they should be jointenancies. The Supreme Court said, it was unnecessary to decide whether the words of the conveyance created a jointenancy or a tenancy in common, because the statute had a retrospective effect, comprehend- ed the conveyance, and made it a tenancy in common(15). The legislature may constitutionally enact laws, by which privilege- once granted to individuals by former laws, are revoked(16). They may pass laws, affecting the rights of parties in actions already pending(l7). All laws dividing towns ; or altering their limits ; or alter- ing the limits of parishes, deprive them of vested rights. The laws passed in this state, forbidding banks !o issue bills payable at a future day — to order — or subject to any con- ditions — or payable at any other place than at the banks ; whenee they were issued, deprive them of vested rights. So also do those laws, passed by different states, that prohibit their issuing bills under certain denominations. Such laws are retrospective, but they are allowed to be constitutional. It is alleged, that no vested right can be devested out of one and vested in another, without the intervention of a court of justice. This position is not correct. — By a law made in February 1791,(18) the selectmen of the different (U) 8 Mass. Rep. 430. (15) 4 Mass. Rep. 566. (10) 1-2 Mass. Rep. 443. (171 Mass. Kep. 303. fl8) 1 State liawb, 385. 0'2 DARTMOUTH COLLEGE VS. WOODWARD towns in this state arc authorized, on application made to them, to lay out highways, whether they are for the bene- fit of the publicly, or particular towns, or the individuals ap- plying for them. Hundreds of instances have happened, iu which selectmen have taken the lands of individuals for highways by virtue of this law. Here the vested rights of those individuals, whose lands are taken, are devested, with- out the intervention of a court of justice, and vested in oth- ers. It is no answer to say, that the fee remains in the in- dividuals whose lands are taken; for the right to the actual occupation of the land is a vested right as much as any that can be named. These acts are alleged to be unconstitutional, because they operate on one corporation on\j. Suppose there was only one bank in the state, and it should make its bills paya- ble at a distant day ; and the General Court should make a law, forbidding any bank to issue bills not payable on de- mand. It could operate only on a single corporation, yet no one would deny the power of the General Court to make it, on that account. The legislature of Massachusetts pass- ed an act in March 1792, prohibiting the Massachusetts bank to issue bills of a less denomination than five dollars. No person ever supposed the law to violate the constitution, because it operated only on a single bank. An act, divid- ing a town, or extending or contracting its limits, operates on a single corporation only. But what are the rights that have been taken from the trustees ? They have been deprived, it is said, of their right of visitation. That right never belonged to them. The Court have been told, that this College was a private charity; that Doctor Wheelock was its founder and visitor ; and that he transferred his right of visitation to the trustees. It is be- lieved, that not one of these positions is Well founded. This was not a private, but a publick charity. In order to determine to which class it belonged, we are not to con- SUPERIOR COURT, NEW-HAMPSHIRE. 93 sider, whether it was founded by the government or by an individual. The government may be the founder of a pri- vate charity; and an individual of a publick one. The rule, by which this is to be determined, was considered and es- tablished by Lord Hardwicke in the case of the Attorney General vs. Pearce(19). " It is, says his lordship, the ex- tensiveness of the objects to be benefited, that constitutes a charity a publick or a private one." This, then, was un- questionably a publick charity. Lord Holt informs us, that some corporations are created for publick and some for pri- vate charities ; that the former are not subject to any foun- der; but to the general laws and statutes of the realm(20). This corporation, being established for a publick charity, was not subject to any founder, but to the general laws and statutes of the state. Suppose this was a private charity, who was its founder? ft has been asserted that Dr. Wheelock was the founder, but the assertion is supported by no evidence. It is incum- bent on the trustees to prove that he founded it, if they claim the right of visitation under him. It is not intended to detract from the merit of Dr. Wheelock by denying that he founded this charity. He is entitled io the highest praise, for his extraordinary exertions in procuring donations from various persons, in Europe and in this country, for the establishment of the College. The charter, probably in con- sequence of these exertions, calls him the founder. But this does not make him so. "The first gift of the reven- ues is the foundation, and he who gives them is in law the founder" (21). Many individuals made donations, but who made the first ? It does not appear. I am instructed to say, that Dr. Wheelock made very liberal donations to Moor's Charity School, an institution in the neighbourhood of the College, though entirely distinct from it, but that he (19)2 Atkyns&a. (20)3 Salk. 102. '21) I Black. Uom. 480 fl > DARTMOUTH COLLEGE VS. WOODWARD. m:ulc none to flic College itself. The charter states, that Dr. VVheelock, on or about the year 1754, at his own ex- pense, and on his own estate and plantation in Lebanon in Connecticut, set on foot an Indian charity school; and that, with theassistar.ee of several well disposed persons, he had, for several years, clothed, maintained, and educated a num- ber of the children of the Indian natives. In no part of the charter is it mentioned, that he made any donation to the College. If he did, there is no evidence of the fact. It docs not appear then, that he was the founder or that he had power to transfer the right of visitation to the trustees. If Dr. Wheelock was the founder and visitor of the Col- lege, he did not transfer to the trustees the right of visita- tion. There are no words in the charter making them visi- tors. It is agreed, that no particular form of words was necessary to make them visitors, but there must be some words clearly showing that this was his intention. Where certain persons are appointed trustees or governours, they are not necessarily visitors(22). The law seems to be well set- tled, that where the management and application of the funds given to a charity, are vested in trustees or governours, they are not visitors (23). The reason is apparent. It would de- feat the charity, if the same men, who have the right of ap- plying its funds, should possess also the exclusive right of deciding, whether those funds were properly applied. In this case, it is said, that the trustees had the legal estate in all the lands and property given for the use of the institu- tion. They certainly had the application and management of its funds. They could not, therefore, have been visit- ors, ff we had had a court of chancery in this state, the trustees would have been subject to its inspection and con- troul, but as we had no such court, they were subject to the inspection and controul of the legislature. That the legislature may exercise some of the powers of a court of fC'2) 2 P. Williams 327.-2 Kyd 188. 189. 194. [23) 2 Kyd 1S8 SUPERIOR COURT, NEW-HAMPSHIRE. &> chancery, in the absence of such a court, so far r.s relates to trusts, is admitted bj the Supreme Court in Massachu- setts^). It is alleged, that these acts have deprived the corpora- tion of Dartmouth College of the franchise of subsisting as a corporate body; that they have destroyed it and created a new corporation in its place. Nothing can be more un- founded. It is true, the name of the corporation has been changed, but that does not destroy it, nor affect its rights, its privileges, or its duties. The name of a corporation, like that of an individual, is a mere accident ; it is not of its essence. " Where an alteration, is made in the name of a corporation, it retains the property, franchises, rights, and privileges, which belonged to it before the alteration, and is equally liable to all claims to which it was subject" (25). An addition has been made to the number of trustees, but it is the same corporation still. If individuals are disannex- ed from one parish and annexed to another, by an act of the legislature, is the parish, to which they are annexed, des- troyed as a corporation ? If an addition be made to the mem- bers of a town corporation, by any means whatever, does it cease to be a corporation? The General Court recognize the existence of this corporation in the most express terms. They say, " That the corporation, heretofore called and known by the name of the Trustees of Dartmouth College, shall be called and known by the name of the Trustees of Dartmouth University." It is urged, that to make any addition to the number of trustees was improper, because it was the intention of the donors, that the property given by them should be managed by twelve trustees and no more. This is not true, because the principal donations were made before it was known of what number the corporation would consist. When a man gives property for a particular object, he intends that it (24) V2 Mass. Rep. 53r (-25 j 2Ky<1232. 9f> DARTMOUTH COLLEGE VS. WOODWARD. shall be applied (o that object, but it is a matter of no im- portance iohim, whether the application be made by twelve trustees or by twenty. The trustees allege, that the General Court attempted to compel them to act under an amended charier; and that they had no power to do if. Many cases have been cited on this point, but they only show, that the King cannot com- pel corporations to accept or act under amended charters, not that Parliament cannot compel them. The authority ot" Parliament, as every one knows, is much more extensive than that of the King. The King cannot grant to a corpora- tion exclusive privileges, Parliament may -> the King cannot dissolve a corporation, Parliament possesses the power. — Corporations in this state have frequently been compelled to act under amended charters. The cases of Pembroke, Stratham, and Newmarket, that have been mentioned, are examples. Indeed this is always the case, where the limits of towns or parishes are altered. Banks, likewise, in the several instances that have been named, have been compel- led to act under amended charters. But it is not true, that the General Court attempted to compel the trustees to act under an amended charter ; they gave them permission to do it, but did not attempt to compel them. It is objected, that these acf3 are repugnant to the thir- ly-seventh article in the bill of rights ; which declares, that the legislative, executive, and judicial departments of gov- ernment shall be kept separate and distinct. In passing these acts, it is said, that the General Court exercised ju- dicial powers. It is not very easy to perceive, how the al- teration of the charter of a College is an exercise of judicial authority, any more than the alteration of the charter of a town, or a parish, or a bank. For a court of law to under- take to alter the charter of a corporation, either publick or private, would afford something of novelty at least, injudi- cial proceedings. By these acts the General Court, it is in- SUPERIOR COURT, NEW-HAMPSHIRE. 9? misled, have declared a forfeiture. Who ever imagined, that when the General Court altered the charter of a town, they declared a forfeiture ? Who ever suspected, that when they altered the charter of a bank, they declared the char- ter forfeited ? The case of Terrett & al. vs. Taylor & al.(26) is said lo be decisive of the present. There is no resemblance between them. The legislature of Virginia asserted a right to all the property of the episcopal churches in the respec- tive counties in the state ; and authorized the overseers of the poor, in each parish, wherein any glebe land was vacant or should become so, to sell the same and appropriate the proceeds to the use of the poor of the parish. The su- preme court decided, that the act taking this property from the churches and giving it to the poor of the several parish- es, was unconstitutional and void. If the legislature of New-Hampshire had taken the property holden by the trus- tees for the purposes mentioned in the charter, and had given it to the poor of the town of Hanover, there would have been some resemblance between the cases : but even riien the resemblance would not have been striking. In the case cited, the property was taken from those who had the beneficial interest ; in this, it is not. In that case, the prop- erty was given for one purpose and applied to another ; in this, the property is employed for the same purposes, for which it was designed. It is indeed alleged, that the funds may be diverted from their proper objects ; that they may be employed for the establishment of an institute. The in- stitute, if there should be one, will undoubtedly be so form- ed as to promote the objects mentioned in the charter. The responsibility of the legislature wiil prevent the funds of the institution from being misemployed. In order to form a correct opinion of the justice of the complaint, made by the trustees, in relation to the taking of f-26) 9 Crunch 43. u 98 DARTMOUTH COLLEGE VS. WOODWARD property given to the use of the institution, we should be careful not to confound the corporation with the members composing it. The law regards them as separate and dis- tinct. The legal title to property, granted to a corporation does not vest in the corporators, but in the corporation it- self, which is made capable of holding it as an individual. In whom was the legal title to this property before the pass- ing of these acts ? In the corporation of Dartmouth College. In whom is the legal title now ? In the same corporation existing under a different name. The legal title was in the corporal ion, while the beneficial interest was in the publick. The trustees have not been deprived of the privilege of be- ing members of the corporation. By these acts they were considered as members of Dartmouth University, the same corporation with Dartmouth College, but with another name; they were a majority of the members ; as members they could hold property, and could exercise all their rights, privileges, and franchises for precisely the same purposes, as they could before these acts were passed. If they refus- ed to act as members, they have no just reason to com- plain. It has been repeatedly said, that if the trustees had con- ducted improperly, an information should have been filed, and their charter declared forfeited by the judgment of a court of law. Whether the General Court were induced to alter this charter, on account of any abuses of which the trustees had been guilty, is not now to be considered. It was sufficient that, in their judgment, it might be so amend ed, as to be better adapted to the end, for which it was Formed. Abuses, however, might have taken place, by which no forfeiture would have been incurred. To file an information in the case of a private corporation may be proper; bur, to do it, in the case of a publick corporation, like that of Dartmouth College, would be in the highest de- cree imprudent. Suppose the trustees had bean guilty o*" SUPERIOR COURT, NEW-HAMPSHIRE. 99 great abuses of (heir trust, an information had been filed,, and their charter had been declared forfeited, what would have been the consequence T Would the trustees have lost anj thing ? Not a cent. The publick, and not the trus- tees, would have been the sufferers. The publick would have lost all the benefit of the property, that had been giv- en to promote the objects of the corporation. When the charter of a corporation is declared forfeited by the judg- ment of a court of law, the property given to it reverts to the donor or his heirs(27). It has been stated, that if the General Court can alter this charter, the corporation holds it at then' mere will and pleasure. This is one side of the picture, let us view the other. If the General Court cannot alter it, then the cor- poration may hold it in defiance of all human power. If this corporation was erected for the purpose of advancing the publick interest, there is a peculiar propriety in having its charter subject to the will of those, who are the guardians of that interest. This is far more proper than that a corpo- ration, created entirely for the publick good, should hold its charter, as fixed and unalterable as the decrees of fate } although the publick good may loudly demand its amend- ment. The legislature, it is urged, may abuse their power, and may, by an improper interference, discourage donations. But is there no danger that the corporation will discourage donations, by an abuse of its trust, if it may claim to be in- dependent of the legislature? If it really possesses those rights and privileges, which are said by counsel to belong to ir, donors can have no reasonable security that their boun- ty will not be misapplied. In the first place, wc are told, that the corporation i* placed beyond the controul of the legislature. They have no authority to amend its charier ; to touch its properly: (27) 2 Kyi Sir, 100 DARTMOUTH COLLEGE VS. WOODWARD to take from it a single right or privilege ; or to limit the exercise of any one of its powers. In the next place, we are told, that the trustees are visitors of the College and of the application of its funds. This places them beyond the coutroul of every court of law, let them do what they will with the property given to the institution. " The sentence of a visitor, on subjects within his jurisdiction, is final and conclusive, and the king's courts cannot, in any form of pro- ceeding, review the sentence" (28). It is within the juris- diction of a visitor, — it is his duty to see, that the funds given to the institution of which he is visitor, are proper- ly applied : and when he decides, his sentence is conclu- sive on all courts. Suppose the trustees should appropriate the funds of the College to their own use. If they are vis- itors as to the application of the funds, as is contended, no court of law can make them accountable. A visitor is him- self subject to no visitation — to no controul. Where is the man, though possessed of the most charitable and benevo- lent feelings, that would give to a corporation, raised so far above all responsibility ? Such a corporation is a monster, that would devour all charities. The very sight of such a monster, placed beyond all legislative, all judicial controul, like the terrifick head of Medusa, would convert even chari- ty herself into stone. The counsel on the other side have expressed an opinion, that the legislature are a very improper body to superintend literary institutions. The people, when they formed their constitution, thought otherwise. By that instrument they declare "That it shall be the duty of legislators, in all fu- ture periods of this government, to cherish the interest of literature and the sciences, and all seminaries and publick schools." The people did not expect, that this would be done by donations merely, but by wise and salutary laws. It is feared, that the legislature, under pretence of aiding ('28) '2 Kjci on Corporations 106. SUPERIOR COURT, NEW-HAMPSHIRE. 101 these institutions, will deprive them of their property, or their most valuable rights and privileges. But no such dan- ger is to be apprehended. If the property of a literary in- stitution should be seized by the legislature, and appropriat- ed to a use, different from that, for which it was designed ; or if any oppressive laws should be passed, injuring and re- tarding its growth, there would be an universal burstof indig- nation throughout the state. Any legislature that should act in this manner would be considered as unworthy of con- fidence, and would lose their offices. The members of the legislature know this. Our frequent elections make them feel their dependence on the people, and keep them faithful 10 their duty. Most of them have children or friends to be educated at the seminary ; they must, therefore, feel the strongest wishes for its prosperity. The interest of the leg- islature, as well as that of the publick, will become sentinels over the rights and privileges of the corporation, and will protect them. 1 am aware, that in examining and deciding this question, prejudices, strong and inveterate, are to be encountered. We are too apt to imagine, that there is something of sanc- tity, investing the rights and privileges of corporations. But it is justly remarked, that " a corporation is nothing more than a mean to an end." In this case the promotion of Christianity and the dissemination of knowledge were the ends ; the incorporation of a number of individuals was the mean of obtaining them. When the sovereign power of a state has a right to effect certain objects, it is necessarily incident to such power to employ all the means, by which those objects may be effected ; it is also incident to such power to alter and to shape the means, already employed, in the best and most advantageous manner. Without the power of alteration, the very means employed might defeat (he end. If, then, this corporation was only the mean o^ obtaining the ends, that have been mentioned, the legisla- 10*2 DARTMOUTH COLLEGE VS. WOODWARD. lure; had a riiifit to alter and to form it in such manner, as in their judgment, would best effect the ends proposed. That a corporation, created for the sole purpose of pro- moting the publick interest, may be altered in such a man- ner as the publick interest requires, is a principle as obvi- ous to common sense as any that can be imagined. When the important purposes, for which this corporation was erected, are taken into view, as well as the duty of the legislature in relation to them, no doubt can be entertained of their right to alter and amend the charter. Civil government, like every other work of man, must be imperfect : the aids of religion are necessary to remedy its defects. Whatever may be the form of government adopt- ed by a people, without morality they cannot be happy, But so feeble is the influence of laws and of political insti- tutions on the morals of mankind, that no nation can be ex- pected, without religion, to practice the duties which moral- ity enjoins. It is justly remarked, that the duties of chari- ty, benevolence, gratitude, and, indeed, all our duties of im- perfect obligation, without the aids of religion, would remain undischarged. Human laws cannot enforce their perform- ance. It is religion alone that, by meliorating the temper and dispositions of the heart, can lead to the discharge of these duties, so important to the happiness of society. It is this alone, that can prevent the commission of those se- cret offences, which human tribunals cannot know, and which, of courne, they cannot punish. But these effects arc not to be expected from those absurd systems of relig- ion, that so long prevailed in the world; which allowed their votaries to indulge in licentiousness, and to trample every principle of morality underfoot; which afforded a justification of every vice " by the example of some god." Nor are they to be expected from those false and absurd systems that stiil prevail ; which substitute trifling, super- cilious observances in the place of genuine piety and moral SUPERIOR COURT, NEW-HAMTSHIKE. 103 goodness ; which promise, as the highest rewards of virtue beyond the grave, the unrestrained indulgence of the sen- sual appetites ; which afford a seat in paradise without pu- rity of heart. It is from Christianity alone, that these salu- tary effects can be expected. It is this system, that teach- es the most perfect lessons of morality and points out our duties in every relation, and under ail circumstances and conditions in lift?. While the religion of men wants a suffi- cient motive to action ; Christianity presents motives the moat powerful, that human imagination can conceive. It al- lures to the practice of virtue by promises of perfect and endless felicity ; it deters from the practice of vice by threats of the most awful punishment. This religion, " which has the promises of this life and of that which is to come," the constitution has enjoined it as a duty on the legislature to encourage and to promote. — The same instru- ment has made it the. duty of the legislature to diffuse know- ledge among the people. It declares that " knowledge is essential to the existence of every free government." Hence it has happened, that between despotism and knowledge, ?here has been a perpetual warfare. In despotick govern- ments, it is necessary that the people should be kept igno- rant of their rights, lest they should break the chains with which their oppressors have bound them. Knowledge and virtue are the main pillars, on which the fabrick of our free- dom rests. Destroy these, and the tottering edifice must fall to the ground, and we must be crushed beneath its ru- ms. Then would the last hope of liberty expire. Then would the gloomy predictions of the advocates of despotism be realized, that no nation will ever be found capable of maintaining a free government. These objects, so impor- tant to the happiness of our country, and the promotion of which is among the most sacred duties of the legislature, it was the professed design of this charter to attain. Ti'.i- "orporatioti, bvin'j' ;• mere instrument to effeet these oh 104 DAKTM OU'ill COLLEGE VS. WOODWARD it was both the right and the duty of the legislature to alter and amend its charter in such a manner, as would, in their judgment, be best calculated to obtain them. If the legis- lature had refused to amend the charter, thinking it too sa- cred to be touched, they would have imprudently given up the substance for the shadow ; they would have weakly sacrificed the end to the means. Mr. Smith. — The question to be discussed is whether, on the facts stated, the acts of the legislature of this state of the 27th of June, 18th and 26th of December 1816, are valid in law and binding on the trustees of Dartmouth College with- out their assent. I freely admit, that this is a question of mere constitutional right, and that it is not sufficient that the plaintiffs satisfy the court that those acts are impolitick, inex- pedient and such as have no tendency " to amend or im- prove the corporation of Dartmouth College." To me, in- deed, it appears, that the constitution of this literary semi- nary is made worse, not better, by these legislative provis- ions ; that the charter of 1769 was a good one, requiring no alteration, and is every way adapted to such an institution at the present day. J hazard little in predicting that should this new organization continue for any length of time, expe- rience, the surest test of measures, would satisfy its friends, that most of the new provisions were inconvenient, some of them impracticable, and others useless, or worse than use- less. I admit they were well enough calculated to answer one purpose, if that was the end proposed, that of enabling the minority of the college government to outvote the ma- jority. But though in my judgment the charter of the col- lege required no alteration, and, as altered, that it has not been amended or improved, yet I am not disposed to deny that the college stood in need of encouragement, and had very powerful claims to the fostering care of the legislature SUPERIOR COURT, XEW-HAMPSHIRE. 105 surd of all good men ; not to enlarge its charter but its funds, that it might more effectually answer the end of its creation, and by diffusing knowledge and learning more generally through the community, conduce essentially to the preservation of our free government. But the pre- sent action was not brought lo obtain the opinion of the court on any of these questions, but on the right of the plaintiffs to continue to be a corporate body, and to hold and enjoy in future, as they have held and enjoyed in times past, their corporate property and their corporate franchises and powers for the use of Dartmouth College, unimpaired and unaffected by the acts of the legislature of the last year, to which, on the fullest consideration, they have deemed it their indispensable duty to refuse their assent. The ground taken by the defendants counsel on the form- er argument, and now, renders it necessary, in the first place to enquire, whether the acts in question, essentially alter the charier of 1T69 ; or whether the alterations are to be re- garded as immaterial. Were it not for the suggestions which have fallen from the bench, at different times in the course of the argument, I should have thought, that on this part of our case, two opinions could hardly have been entertained. The change of name is not in itself a matter of much con- sequence. Rut it is believed that this business of baptizing anew, individuals or corporate bodies, against their wills, by legislative acts, has not been usual.* If there is any thing, which seems peculiarly to be a person's own, it is his name. He may prefer the old to the new as more suitable to his con- dition. Here too, Ihe change of name seems to indicate a change in the nature of the body ; — for upon the principles of the common law, an university, on the model of those at: Oxford and Cambridge is a civil, while a college is an elee- mosynary corporation. It is ea*y however to conceive of circumstances which micht justify this act. imposing a new •in f'o. »S. If. 106 DARTMOUTH COLLEGE VS. WOODWARD. name— such an increase in the funds by the liberality of the state, or the Jovers of literature who guide its councils, as would require the formation of several colleges at the same place. Gratitude for the favour, to say nothing of the pro- priety of the thing, from the enlarged endowment, would soon reconcile modest men to a high sounding title. But passing from the names of the two corporations let us look into their conslitutions as settled by the charter and by the legislative acts. A.s it respects the members, the charter declares their number shall be twelve and no more ; the acts provide that the number shall be twenty one. This is important. The trustees are not officers of the corporation but constituent members ; the integral parts of the corporate body. En- creasing or diminishing these essentially alters the constitu- tion of the corporation(l). The trustees named in the charter were appointed chiefly if not entirely, (according to the established usage in such cases) (2) at the nomination of the persons providing the funds, or a person acting for them. The additional trus- tees, provided by the acts, are appointed, not by the cor- poration, as all new members by the charter were to be ap- pointed, but by the governour and council, as civil officers of the state are appointed : — and vacancies, before a certain time, are to be filled up in the same way. This in the event, gave to the state the appointment often trustees be- fore the organization of the corporation created by the acts ; and " nine trustees convened agreeably to the new provis- ions are made a quorum for transacting business." This last provision was made before the new corporation was organiz- ed ; so that the new was no way dependent on the old for its existence. By the charter all the powers of the corporation are vest cd in the twelve trustees. By the acts not only nine nev; (1) 2 Rro. C. C. Gf)2.— 12 Mod. 232. anon. f'2) 13 Vez. Jr. 530. Atty. Gen vs. Dixie. SUPERIOR COURT, NEW-HAMPSHIRE. 10i members are added, but a board of overseers is constituted, consisting of twenty-five members appointed by the govern- ourand council, with a negative, on all the important acts oi. the trustees : — and vacancies, in this latter body, are to be filled up, in all future time, by the governour and council ; that is, this branch of the college government is perpetuated, not in the mode prescribed by the charter, by the govern- ment of the college, but by the government of the state. The power to maintain perpetual succession, that is of electing members in the room of such as go off, is said to be necessarily and inseparably incident to a corporation :(3) where a corporation has not this power, it is dependent on some other person or body politick for its continuance. As it respects the funds or corporate property, this was held by the twelve trustees chosen under the charter, cloth ed with the trusts declared in that instrument in strict con- formity with the will of the donors. The acts transfer it to the trustees " as constituted by the acts ;" — so in like man- ner it is provided, that the new trustees " shall forever have, hold, use, exercise and enjoy, all the powers, authorities, rights, liberties, privileges, and immunities" which the char fer vested in the trustees of Dartmouth College. New powers are also conferred ; and, what is much more material, new and different uses and trusts are created and declared : they (the new trustees) " have power to organize colleges in the university ; to establish an institute and elect fellows and members thereof: to arrange, invest and employ the funds of the university, 1 ' which the same acts had just taken from the college. It will hardly be pretend- ed that the trustees had authority to do any of these tilings ; if not, it seems to follow, that thry alter and vary the origi- nal end and purpose of the institutional). In exercising these powers, privileges and immunities and applying the funds, the new trustees are in most cases, sub* (.,) 1 Mac. 475.-2 Mac. 37. fi) 2 V' 4, Jr i2— <2 Urn C.C. C>Cr2 108 DARTMOUTH COLLKtifc VS. WOODVvAKJ). ject to the controul of a board of overseers, entirely tlje crea- ture of the state. The acts in question farther give the governour and council the power, and make it their duty, " to inspect the doings and proceedings of the corporation And of all the officers of the university whenever they deem it expedient ; and to report their doings to the legislature ;" that they, I suppose, according to the memorial present- ed by the late president of the college — containing a "sur- render of all his official, civil and political rights,"(5) may exercise " the sacred right to visit and oversee this literary establishment." It is not apprehended that the acts are more catho- lic on the score of " perfect freedom of religious opin- ion" than the charter. The former indeed go a step far- ther, in making it compulsory on the trustees to accept donations, " for the endowment of professorships of any sect, of the protestant christian religion." How far this provision, which has the merit of being entirely new, may contribute to advance the science of theology as a branch of academical instruction is not for me to conjecture. Ex- periments of ihis sort, professorships "of all and any opin- ions" had better, perhaps, have been first made in the new institute, a term broad enough to comprehend any thing and every thing. It seems a problem not yet solved, which is better — to have professorships " of no particular religion ;" — " of all sects in religion," wrangling it out in the best way they <:an in the same seminary; — or professorships "of no religion." The old way was to have professors of divinity leaving it to the trustees to elect. The charter gave the trustees the power to appoint a treasurer ar.d clerk, or secretary, and to remove them at pleasure. The defendant had been appointed to both these oinces ; but was removed from both and another appointed before the acts of December, 1816. The act of the 26th of December iii eiTcct reappointed him, and gave him as ■S See Documents relive to l)a:-t, roll, published by Los:. 1316. v. 6. SUPERIOR COURT, NEW-HAMPSHIRE. 109 treasurer so constituted " the care, management and superin- tendance of the property of the corporation whether real or personal." The same act, as a convenient mode of settling the ques- tion now before the court, (and the legislature were not then ignorant, that the old trustees had, by a solemn declaration refused their assent to the acts) subjected them, and the of- ficers of the college, those appointed before as well as those appointed after the 27th of June 1816, to heavy penalties should they presume to exercise their offices, except under the new acts which they considered as unconstitutional and void. Their " freedom of opinion" consisted in the right of resigning — of surrendering, in humble imitation of their late president, their official rights, leaving it to the governour and council to appoint others in their room ; — or of becom- ing members of the new corporation against the dictates of their conscience — or of continuing to exercise the offices they then held, and as they believed constitutionally held, at the hazard of incurring the threatened penalty. Such was the enlightened policy and liberal views of the trainers of these acts. After this brief review of the constitution of this semina- ry as provided by the charier, and by the acts in question, it can hardly be matter of surprize, that the independent members of the old board refused any connection with the new. None but independent members would have ventur- ed on this course. But I confess it does seem strange !o mo, that any advocate should now be found, gravely to contend, that tiie acts have made no essential change in the corporation as constituted by the charier. They have (hanged the name, the number of members, the manner of their appointment, and of maintaining a perpetual succession ; have created a board of overseers, chosen and io be pcrprl uated by (he state, have divested the r.oi potation of the pro- perty given it by the founders and other donors—have a! J 10 DARTMOUTH COLLEGE VS. WOODWARD. tcred the uses for which it was given, and applied it to new uses and trusts : — have appointed an officer for the corpora- tion and invested him with power to hold their property against their will. They have made a new constitution for this seminary. It seems to make a necessary part of the defence to this sui!, that Dartmouth College has passed away — has no long- er even a name tc live. Its powers and all its property have been given to another corporate body, who are the real de- fendants. If the new corporation come in the place of the old, then the old no longer exists. If they exist for any purpose and with any rights, one would think, the new cor- poration have little interest in denying them their charter, common seal, and records : and yet the new corporation claim the right of converting these to their own use. — It is certainly true, that the old corporation has not been dissolv- ed in any of the ways mentioned by law writers, except on the supposition that our legislature, like the British parlia- ment, possess unbounded and unlimited power(6). The counsel are necessarily driven to that: they are bound to contend that the acts have annihilated the old corporation and created a new one in its stead. Upon their principles they may at once boldly venture on this ground. They liave asserted in the broadest and most unqualified terms the ight in the legislature to do, what we say they have done. it is their doctrine that corporations of this description, like clay in the hand* of the potter, may be modified, altered or moulded into any shape, at the pleasure of the legislature: — or to use the late President Whcclock's language again, be made to undergo such " organic improvements and modal re- forms in its system and movements, (7) as the wisdom of the legislature may judge expedient:" — In short that all such corporation?) may be annihilated by the legislature " the true (f,) 1 Biac. 4S.7. (7 j Sec Doc ; Infive la Dart. Coll. pub. by Leg. 181C>, p. 7. SUPERIOR COURT.. NEW-HAMPSHIRE. ^ j j sovereign" of the slate. All this we deny aj>d ^ ^ • ground we meet our opponents. I shall contend that, by the constitution of {fib 9(.( e these acts are not binding on the plaintiffs without tl? r \» -«_ sent; — and that they violate the constitution of th©Oi\ifej States. To maintain these positions, it is not necessary that I shoula satisfy the court that all their provisions are unconstitution- al. It is sufficient that any of them are so. The doctrine is well established, (8) that a corporation in being, may take such parts of an amended charter, as they choose and reject the rest ; so, they may reject the whole, though some parts be good ; — they are not obliged to pick out the good threads from an ill woven web. Before we can determine, as to the validity of these acts it will be necessary to ascertain the true nature of this cor- poration, and to what class it belongs. Ciearly, the legisla- ture have more power over some corporations than over others. Corporations differ from each other in their constitution, powers, and objects or purposes of the association. But some things are incident to them all. A number of persons, I speak of corporations aggregate, are invested with a political char acter and personality, (9) wholly distinct from their natural capacity, and chiefly intended as the means of perpetuating in succession their rights and their duties. The charter generally specifies the purposes of the association, and marks the limits and extent of the franchises conferred, and how they shall be enjoyed. But there arc many powers, rights, capacities, &c. inseparably incident to corporations. If the charter be silent, the law annexes these ; they are im- plied ; such as to have perpetual succession, the power ot electing members in (he room of such as go off; to sue 01 be sued ; \o purchase lands n:ul hold them for the benefit I'S) .i Unix 1017.106.5. — UJurr L.M90 — 1 i) hi. V. ■■■>! 8 " "i, i \Vo 471 —1 lila.;. i>'\ 1 io o/llTMOUTH COLLEGE VS. WOODWARD of »i*»«nstiA»t'°n ; to have a common seal, and (o make stat- for $ government of the corporation (10). Though, ibr/>ra# P ur P oses » Dartmouth College may be considered a^a/tj V° as i J' et it is not an ecclesiastical corporation in the jlhgn.-.i sense of the term(ll). But there is another division* proper to be stated at greater length, I mean of civil and elee- mosynary corporations. We have both sorts. Our civil cor- porations are created for government, and for " the carrying on of divers special purposes." Our counties, towns, parish- es, school districts, &c. are civil corporations for government ; and our banking, insurance and turnpike companies, are civil corporations for particular purposes — no way connected with charity. In England, the general corporate bodies of the universities of Oxford and Cambridge fall under the head of civil corporations ; because merely for government ; not for dispensing alms, but for governing the particular colleges which dispense them. A civil corporation for government, for example, a town in this state, is where persons living within certain limits, are by the supreme power, erected in- to a body politick for the exercise of their civil and politi- cal rights, and the performance of their civil duties — among these are the rights of suffrage, the duty of supporting pub tick instruction in religion and morality, of supporting schools and of executing the laws for the maintenance of the publick police. The whole state is divided into districts for these purpose?. Our government depends for its organization on these corporate bodies. The state is nothing but the ag- gregate of these civil corporations. Annihilate these, and the great body politick could no longer exist without an en- tire new organization. Each citizen, and all the citizens are benefited by this division of the state into towns or town- ships. Their rights and duties are better and more advan- tageously performed, in these districts, than they could be in any other manner. Towns, generally hold little or no (10) 1 Wo. 474.— 1 Blac.475. "JM Wo. 47?.— 1 F.lae. 470. SUPERIOR COURT, NEW-HAMPSHIRE. 1 13 corporate property. They have few of the incidents said to be inseparable from corporate bodies ; yet they have as many as are necessary for the purposes of the association. They stand in no need of by-laws or private statutes for the better government of the corporation, as the rights and du- ties of one, are the same as in every other. They are all governed by the same general laws. As soon as the terri- tory becomes inhabited, this incorporation takes effect: — it is granted many times before; — in which case, the lan- guage is "all who shall or may inhabit within certain lim- its be and hereby are erected into a body politick, &c." — and the inhabitants of every town are "invested with all (he powers, rights and privileges which any town in the slate hold and enjoy ; and these are such, as the con- stitution and the general laws, common and statute, con- fer. A member of a town corporation cannot be said, in the usual sense of the term, to accept the charter. He may withdraw from the corporate body, by removing from the limits, when he pleases and without its consent. He cannot be amoved or disfranchised for any cause. These may properly be called publick corporations ; because they are created exclusively for publick purposes — their objects common to all ; and not for the advantage of any particular citizen or citizens ; and are all governed by the same general laws(12). They are essential component parts of the state, and aggregately taken are the state. Counties, parishes, and school districts are of the same general nature as towns, but more limited in their objects. But we have civil corporations, which bear a closer resem- blance to those existing at common law, than the corporate bodies (if they may be so called) which have been just men- tioned. I allude to our corporations for carrying- on the busi- ness of banking — insurance — for making canals — turnpike roads — erecting bridges, &c. These are created for speciuH ' l '.>) 2 I). fc E. 352.— 4 T). Sj K H ' in il4 DARTMOUTH COLLEGE VS. WOODWARD. purposes, which are supposed to be beneficial to the state, and advantageous to the individual members,but which noway relate to the general rights or duties of citizens ; or to the civil government of the state. In the case of a bank, for ex- ample, the members agree to raise from their private prop- erty a joint stock — they procure an act of incorporation, to enable them to manage this property more beneficially than could otherwise be done. When incorporated, the owners of this stock acquire new and distinct powers and privileges, in relation to this object : — these privileges are special, pe- culiar to the members, different from those enjoyed by the other citizens. — As the stock after the association and before the incorporation was private property, so it remains private property after the incorporation ; and the franchise or privi- lege of managing it as a corporate body, is peculiar to the stockholders, and of course is private property. This is therefore in every sense a private civil corporation. The corporation can claim and exercise this corporate franchise itgainst the state, and that, on the score of compact, as long as it performs the conditions on which it was granted : — and it is the province of the courts of justice to judge between the corporation and the state, whether, these conditions have been performed or broken. The corporate property and the members of the corporation will of course be subject to the legislative, executive and judicial controul of the state as to every thing not relinquished by the state ; or granted to the corporation by the charter. The legislature cannot in- fringe the grant they have made ; they cannot re-create or organize anew the corporation, at their pleasure. It may sometimes be a matter of difficulty to determine, how far the power of legislation may be extended in such cases. But it may be safely affirmed in general terms, that it cannot touch private corporate property or corporate rights, any more than i( could the private property, or private rights of ^ natural person; the corporation is a subject of the slate, SUPERIOR COURT, NEW-HAMPSHIRE. 115 ijut it is an individual, and its property is the property of an individual, though an artificial one. Eleemosynary corporations are such as are constituted for the perpetual distribution of the free alms, or bounty of the founder of them, to such persons as he has directed(13). Of this kind are hospitals for the poor, sick, and impotent; and colleges or free schools for the promotion of piety and learn- ing and imparting assistance to learned men, by means of funds, provided and devoted to these objects, by beneficent individuals or publick bodies. The very essence — sine qua non— of eleemosynary corporations is properly dedicated to charitable uses. A corporation without any funds can hardly be called an eleemosynary corporation ; because there are no alms — free bounty — to be distributed. When a number of individuals create a fund out of their pri- vate property to carry on any business for their advantage ; and procure an act of incorporation, the better to effectuate {he object in view, this is not an eleemosynary, but a civil cor- poration. But if the same individuals should devote this fund to a charitable use, to heal the sick, educate the ignorant, or to improve the moral condition of their fellow men, and ob- tain an act, or charter, erecting them into an hospital, or free school ; this would be a charitable institution, and the owners would, by the incorporation, acquire a new facul- ty, or power for the management, and application of this property to the use designated by them. Their right, as individuals, to the property thus dedicated would cease, and become vested in the same persons in their new character. The effect of the incorporation would be, to unite several wills into one will ; and several persons into one artificial per- son, capable in law to hold, manage and apply this fund. So far the operation is the same in this, as in Hie case of a civil corporation. The difference is in the circumstance of the impropriation of this property to charitable uses — this ap \: ] Mhc 'in 116 DARTMOUTH COLLEGE Y&. WOODWARD. propriation is made by the individuals and not by the arti* ficial person ; so that the latter merely takes and holds, in an artificial capacity, what they before held, as natural per- sons, and to the same uses. Formerly, as individuals, they held the property dedicated to charitable uses ; — now, they, in their corporate character, hold it to the same uses, and the law will enforce the perpetual execution of the uses. The utility of the corporate character is manifest. It is the means of perpetuating the appropriation, and of consolidating several willsi nto one. This creature of the law was provided, not for creating property, or devoting it to charity ; but of en- abling individuals to live forever,and to be always of the same charitable mind. The powers conferred by the charter, or tacitly annexed by law, are just such as are wanted. They are to it, what the constitution of the state is, to those who administer the government ; — or as Blackstonc express- es it, they are to the artificial being, what the laws of natur* are to natural persons(14). This artificial person makes by- laws and statutes for its government, and the management of its affairs, which is the exercise of its political reason ; and such by-laws are to this little republick,what the general laws of the state are to the great body of the people. When this artificial person is created it is at once clothed with rights, and liable to the performance of duties. As it is the creature of the law it is of course subject to the law, and has rights which it can claim, and has duties to perform, all which may be enforced at law. It can claim the same protection for its rights which natural persons can, and in the same man- ner may be compelled to perform its duties. The principal of these duties is that of answering the end of its creation ; — of forever holding, managing, and faithfully applying its proper ty to the charitable uses declared by the donors (15). In the case of civil corporations they are visitable by the judicial courts ; that is, subject to the general and common (14) 1 lilac. 408. r 15) 1 Blac. 47 I) ,V E. :m. ;>«<> i |Jtu< 4X2. 118 j ) a RTMOUTH COT ,LEGE VS. WOODW \R1 ). Jhe institution. Wilhout the exertion, and constant activity of such a power, — the power of visitation — 'he charity, we may he sure, would soon come to an end. The master, fellows, and scholars arc unfit depositaries of this power. What security would there be that their duties would be performed ? An interested majority might oppress the minor- ity — The revenues might be misapplied or unjustly divid- ed and distributed, (19) the instructers might exact too much obedience, while the scholars might be disposed to yield too little. Statutes, rules, and regulations, will often be wanted : who shall make and enforce them? These considerations, and such as these, satisfactorily ac- count for i\\e office of visitor, and shew, that the right of vis- itation was created of necessity by the common law(20). It requires but little knowledge of the human heart to perceive, how admirably this provision is calculated to enlarge the number of charities, and to secure their faithful, and ju- dicious application. Nothing can be more flattering to the pride of those, who are rich enough to give, than this do- minion retained over the thing bestowed. Every good mind must be gratified with this posthumous power as it were, of dispensing alms to the deserving, and protecting it, in all time to come, from abuses. We have seen the origin of visitatorial power and the neces- sity for a visitor. His powers and duties are well stated in the celebrated ense of Philips and Bury (21). The visitatorial power is a necessary one, springing from the endowment — the property, which the founder had in the lands assigned to sup port the charity. " The charity is a creature of \hc founders, ,md he may order and dispose of his own as he pleases." — i( Every man is the master of his own charity, to appoint and qualify it as he plcaseth." He makes the constitution for his college, and " the members must submit to such laws, as he is pleased to give them." — "They must be contented to enjoy (19)2 D. fcE. 352. f2(>) 1 15 Inc. 48.3.— 1 Ld. Rav. 8.-2 1). & E. 353. 21) 1 !/!. Ra-. 5.— 1 Mwt/106.— 2 D. & B.340 SUPERIOR COURT, NEW-HAMPSHIRE. Hi* the charity, in the same manner, (hey received it from the foun- der. They who take the bounty, must submit to his constitu- tion and laws," which are his terms and conditions. The founder is patron and visitor of course : after-visitors by his appointment, or by appointment of the law, can do every thing which the founder could do, except that of altering the constitution. It is their duty in every instance, to effec- tuate the intention of the founder, so far as they can collect it from the statutes, and from the nature of the institution. They may make statutes, and rules for the government of the college, — not repugnant to those of the founder or the law of the land. The king cannot make statutes, on a private foun- dation, without the donors consent. The visitor has author- ity at all times to hear the complaints, and redress the griev- ances of the members of the college, according to its consti- tution and statutes. He is bound to enquire into the state of the college and all its affairs, and to inspect and regulate the conduct of those, who partake of the charity, or who have any agency in managing its concerns. His powers, though great, are deemed "most useful and convenient for colleges and learned societies" (22) — they are inherent in the private donor or founder. — "Of common right" they belong to him, his heirs or appointee(23). We shall have occasion to mention hereafter the controul exercised by courts over the government of a college and its revenues. Where the king founds a college, this right of visitation very properly belongs to him (24). Our legislature are not. satisfied with this, but claim the right to visit institutions founded by others. But, by merely granting the charter to a corporation founded by private persons, the king acquires no right as founder; nor are any of the founder's rights im- paired. The "fundatio incipient," or the incorporation (&!) i 1). fc E. 293.-2 Vez. Jr. Cl'J. {::,) .' I), fcc H. .i'."j. 346. 3.58.— 1 V, /. Si in-, 'hi.'. 175.— v.' CI. I!:ic. C'J ..'," ■ Co.LUt.96. >\ 156. — J Viz. Jr. 4 ' njo-5. — -J Cramli 16;,. f, ~ 1 III- -iS i. n. 1 \. — y [». Win- ".''. — ''. !> >v i; <: I l!!u.' iS.> 120 DARTMOUTH COLLEGE "VS. WOODWARD. gives no controul over the institution after it is erected. It is the endowment which confers the right of visitation (25). " Patronage and visitation are necessary consequences one upon another" (26). "It is the donor which creates the charitable foundation" (27). But all eleemosynary corporations are not constituted, in England, precisely in the manner which has been stated. Instead of incorporating the objects of the charity — the per- sons who are to receive the benefit of it — trustees are some- times incorporated, who are to dispose of it according to the will of the founder ; that i3, for the uses he has declared (28). At the first settlement of this country, few individuals were rich enough to found a college or any other charit- able institution, alone : — And the law of visitation by the heir of the founder did not suit our law of descent. Accord- ingly, in our corporations of the eleemosynary kind, trustees are incorporated, and to them is committed both the funds and the visitatorial power. These trustees, by whatever name they are called, are generally the principal, and most respectable donors. It never occurred to our wise men of former days, that the best way of promoting any charitable design, was to give the funds to the publick ; — or to deny to these corporations the power of perpetuating themselves. It is believed that the colleges, academies, free schools, hos- pitals, asylums, the theological institution at Andover, and charitable institutions generally in New-England, and in the other states of the union have been endowed and incorporat- ed in the way just mentioned. When the government, or official men of high standing, are pleased to enrol themselves- among the benefactors, some high and permanent officer or officers of the government are constituted members ex-offi- cio. (2,-i) 1 Elac. 481. (iifi) 2 D. k E. 352. (271 1 Vez. Senr. 472. by Lord Hardwicke. f 28) 1 Vez. Senr. 472.-2 D. & E. 352. 3.— 10 Co. 2S SUPERIOR COURT, NEW-HAMPSHIRE. 121 From the nature of a charity constituted in this way it is manifest, that a visitor, as distinct from the trustees or gov- ernors, is not wanted : — " A visitor does not in such case arise by implication,but the trustees have thai power"(29). — It would savor of absurdity to give one man, under the name of visitor or overseer, the controul over ten men, as capable of executing the trust, and as disinterested as himself. And if he has no such power, his office would be somewhat like that of the old overseers of a will, whose only power was to hold the candle while the executors counted the money. In the charter of Andover Academy, and i* is believed some others of our institutions, the trustees are called "visitors," and " sole visitors." But whether so called or not, it is ve- ry apparent, that the whole power of visitation is vested in them: they are visitors, governours, and overseers of the charity, as well as the legal owners of the funds: — appoint- ed by the founders and donors as their perpetual represen- tatives, to protect the interests of the charity. The law confers on them full power for so doing : — And the same law, as we shall see, furnishes the most effectual means of cor- recting any abuses of the trust. This mode of constituting an eleemosynary corporation does not vary its nature. In the other mode, the objects of the founders bounty hold the property, and the visitor has the perpetual power of governing it. Both the corporate property, and the power of governing the institution are private ; because the proper- ty designated to the charity was private. In this, ihe trus- tees have united in them, the property and the power of visitation, subject as to the former, in a particular manner, to the controul of the judicial courts: — and the visitatorial power is transferred to the trustees by Ihe founders or donors themselves, as effectually, as if done by deed. These do- nors also, in the charter which they procure, make such con- stitution for the charity, as, in the plenitude of (heir power ! Vc/. Senr. 47-2.— 10 »V r 17 122 DARTMOUTH COLLEGE VS. WOODWARD. they think meet: — "the king makes the corporation, but the founder has power to dispose and order it as he* thinks fit:" (30) — and the will of the donor is a fundament- al law to the trustees. If they deviate from it, they vio- late their trust ; and the procedure may be corrected, and where wilful, the trustees punished. So, any after-donor may give on such terms and conditions as he chooses : and by these, the trustees are bound, if they accept the donation. In all this good, I had almost said divine, work of charity, it may be thought that I have taken too little notice of the king as acting for the nation. I do consider the real efficient parties to be, first of all, the founder or donors ; then, in a case like this, the objects of their bounty — the persons to be educated as tbey come in succession on the stage. I con- sider the incorporation of trustees, as giving to them the le- gal and equitable property in the funds destined to the chari- ty ; and the charter as affording the most perfect evidence of the mind and will of the donor, that they should during life, that is forever, possess and exercise all his rights and powers as founder and visitor. At the same time I admit there must be another party, in the transaction ; and that there can be no incorporation without the consent of the king or supreme power ofthe-state. He may, if he pleas- es, leave individuals to administer their own charitable funds in their own way, with no other means of continuing the property, than by endless conveyances from one to another; and no other power of government over the institution, than what reason and a sense of moral obligation may supply. — If it were an object to discourage education, a disposition sometimes imputed to kings, he would undoubtedly take this course. I admit also thaL he has the power, and that it is his duty when applied to for a charter, to judge of the utility of the particular design in hand, and to make the beat bargain ye can with the charitable donors respecting the establish* fSO) C. J- Holt, 12 Mo'l. 232. SUPERIOR COURT, NEW-HAMPSHIRE. 123 Eient. — Undoubtedly Ihe terras of the charter are matter of compact between these parties: — the general views of both must be the same, but each may judge for itself, as to the details. In ancient times, these charters were very laconic, as much so, as the acts incorporating some of our towns.* The law conferred the necessary powers and capacities. But in later times, the charter, or act of incorporation usually contains the fundamental laws, that is, the constitution of the body, and such special provisions as are thought necessary by the donor, and approved by the king, to effectuate the ends proposed. The law which has a remedy for every real grievance, provides that in case the king should be be- trayed into an improper grant, — one hurtful instead of benefi- cial to the publick or nation, the charter may, when so ad- judged in due course of lavv, be repealed. I have been thus particular, in stating my ideas of the na- ture of publick and private civil corporations, and the nature of charitable institutions in general, and of the rights and powers of the founder and of visitors in particular, from a belief, that it is all important to a correct decision oi" this cause:— without this we shall never come to a correct result. I could refer the court to many cases and passages in the books which treat of corporations but have thought it un- necessary, believing the current of authorities to be strong, in favour of the view I have endeavoured to present of the subject. Let us now examine the constitution of Dartmouth Col- lege. lis original funds arose altogether from the donations of individuals : principally obtained through the agency of Dr. Eleazer YVheelock. In no sonsr, and in no way can it be said, that they originated with the king or the publick Not a cent of money, or an aero of land was given by the ^ ' " That Trnmyitaine be calk-d IJof/»i "—And, that " Wiunicumir-t h>: ci.ll.-rt f-Tr.mpUm," -Sec 124 DARTMOUTH COLLEGE VS. WOODWARD. province or any publick body, till long after the college went into operation. Who, that has the smallest acquaintance with the law of eleemosynary corporations, can read the charier and not perceive, that this corporation was consider- ed by its framers, as eleemosynary ? * It speaks of the funds as private from beginning to end ; — Dr. Eleazer Wheelockas the agent in procuring them; — treats him as the founder ; — as requesting the charter ; — suggesting its various provisions and nominating the trustees : — who can read it and then say, that this was not just what he would have it to be. It is just what the law says it ought to be ; the creature of the founder or donors. I have already said, and I repeat it, that in my poor judg- ment, it is an excellent one, and does great honour to the head and heart of its author. The college was erected, and the trustees made a body politick with certain powers and privileges, particularly that of perpetuating themselves, to effectuate the charitable design of its donors. The incorporation, and, in this form, was a mean to that end. Throughout the whole charier the corporation is treat- ed as a private one, and as a party grantee, standing in> the place and sfead of the donors. In what part of this instrument do we find any evidence of a transfer of the property to the king or the publick? It seems not a little absurd to talk of the grant of the privilege and pow- er of managing the property, and governing the institu- tion granted by the king to certain persons, having the power io perpetuate themselves, as powers and privileges granted, in any sense, to the king or the publick. Suppose it had been intimated at the time of granting the charter that its effect end operation would be, to pass the property, and place it beyond the controul of the corporation: — that the king or his successors, even the republick, If its existence ;iad been then foreseen, might, whenever they chose, become SUPERIOR COURT, XEW-HAMPSHIRE. 125 the governours of the institution, instead of Dr. Eleazer Wheelock, and the rest of the trustees ? there might indeed have been a college created — on paper; but it would have been like your university with its eighteen professorships, without professors- — with its many colleges, its institutes and fellows, without funds, and without that confidence which, is able to procure them ; — which has no patron (for the leg- islature bestow nothing but the improved charter) except its late President, who will trust no legislature but the pres- ent. The king might have incorporated a college; — But he must have been the patron himself. Dr. E. Wheelock never would have parted with his funds on any such terms. This charter gives the donors all the security, which a char- ter can give, that they shall have the administration of these funds forever. They are vested in trustees " to be ex- pended in the education and instruction of youth of the In- dian tribes, in this land, and also of English youth, and any others." All the powers, franchises, and immunities usual- ally bestowed on colleges are granted, and in terms irrevo- cably granted, to the trustees, named in the instrument. The law then of eleemosynary corporations, so constituted in England, or in this country, the common law is the law of this corporation. Whatever any charitable institution can claim to hold, as to their property, offices, and corporate franchises against the king, the state, and all the world, this corporation can claim and hold. We are now in a court of law : and I need not say, that I speak of our legal rights. What arbitrary power can do, or attempt to do, is not the question: but can the legislature, by a legislative act change the constitution of this seminary, and new model it at their pleasure 1 I contend they have no such power : because this is private proper!} , both as it respects the funds:, and the corporate franchises. Our opponents contend that this is, what they are pleased to call a publick corporation, cre- ated exclusively for the publick interest ; and to make sure *26 DARTMOUTH COLLEGE VS. WOODWARD. work of if, that even if the corporation be a private one, the legislature had the right of making the alterations they have made. I do not understand the defendant's counsel as denying that there are in this country eleemosynary cor- porations. Nothing can be clearer than that Dartmouth College was of (hat description. There are two respects, indeed in which cbaritabte corporations may, in a certain sense, be considered as publiek or private. 1. The properly may arise, and the endowment be made, by the king, in which case it is an institution of " royal foundation." If the state found a college and endow it out' of state property, th'13 would, in respect of the foundation, be "a publiek institution." And we freely admit, that where the state are the pa- trons of a college, they may justly claim the superin- tendence and government of it. Where the endowment is by an individual or individuals, in the same sense the in- stitution is a private one. It will not be pretended that Dartmouth College, in this sense, is a publiek institution, Though the state have given lands they were not the real founders. They were not the first benefactors, who, and who only, are considered as founders. These grants imply that the college was founded ; and they are made on such terms and conditions as the state thought fit. 2. One char- ity may be distinguished from another on account of its ex- tensiveaess. When the objects of the charity are, or may be, many, it is in this sense publiek ; — when one only, or a small number, private. In this sense I agree this was a publiek charity. Many were intended to be benefited, and many have been educated in this respectable seminary. Perhaps no college has done more good, with so small means. The number of the objects of the charity may af- fect the remedy to enforce the execution of a trust ; but we $eny that it all affects the right of patronage ; — the rights SUPERIOR COURT, NEW-HAMPSHIRE'. *~? and powers of the founder or donors;' or the visitatorial power. Property given in trust for an individual, or a small number of persons, is usually given to private trustees, who never become incorporated. They hold and manage it as private persons rand chancery compels Vuu execution of the trust. When property is given to uses, it passes to cestui que use. There may be cases in this country, where the same thing would take place, in the case of property giv- en in trust. There are also cases, where chancery com- pels a conveyance of i'ne legal estate to cestui que trust. But wiiere the objects of the charity are not designated by the donor, devisor, or testator, but are to be selected by the trustees, at their discretion, chancery does not take the le- ^al or equitable property from the trustees; but, leaving fhem in the exercise of the power and discretion bestowed, and confided in them, by the donor, &c. superintends tho execution of the trust — corrects all abuses, and sees that the beneficial uses are not disappointed. But it is proper that we should confine our attention at pre- sent to the cases of charities incorporated. In the sense of " exteusiveness"most eleemosynary corporations, and all col- leges, whether the endowment were by the publick, or by pri- vate persons, are publick. The objects are many, and to be selected by the corporation, its governours or visitors. It is to be managed in an institution or society ; — small, when compared with the whole state, but large when compared with the objects of limited and special trusts, created in deeds, wills, ike. and where executors, or particular persons, are to execute them. It is manifest that such institutions, as colleges, must be managed by some disinterested and dis- creet person or persons. Hence originated corporations — the powers of founders, donors — the office and duly of vis- itor, &c. Now where are the cases, authorities or even dicta to be found, shewing, that the " extensiveness ' (.; the charity affects the right of donor" founders. <>■ ' .-1 - 128 DARTMOUTH COLLEGE VS. WOODWARD. supplying their places? — that if the charily is extensive, the right of patronage is lost; the king is patron, and may gov- ern the institution, and visit it as a private founder does, and new-model its constitution at his pleasure ? Where do we find a division of eleemosynary corporations into publick and private, and a different law for each ? It seems incumbent on our opponents to produce such au- thorities. The thing does not seem reasonable in itself. The munificent friend of learning who bestows property enough to educate one hundred ingenious young men, destitute of the means of education, seems to have as much right, to say the least of it, to govern them, and superin- tend their education, as he who provides for the education of ten only. No such line is drawn in any case. The opinion of lord Hardwicke, in the attorney general against Pearce(31), is supposed to militate with this doc- trine. The question was, on the construction of a will, in which the testatrix bequeathed a certain sum to each of the publick charities, mentioned in the will of Mrs. S. of which she was executrix. Several charities of a publick nature were given in Mrs. S.'s will. What did the testatrix in the last will mean by publick charities, was the question. Lord Hardwicke was of opinion the word " publick was used by way of description. The extensiveness of the charity makes it publick." " A devise to the poor of a par- ish is a publick charity. Where the trustees have a dis- cretion to choose out the objects, though each particular ob- ject may be said to be private, yet, in the extensiveness of the benefit accruing from them, they may very properly be call- ed publick charities. A sum to be disposed of by a particu- lar person, and his executors, among poor house-keepers, is a publick charity." In the same sense, I admit that Dart- mouth College was a publick charity ;— not, as lord Hard- wicke observes, that the charter of the crown has made it so ; (311 3 Alk. 87. SUPERIOR COURT, NEW-HAMPSHIRE. 129 for that only makes it more permanent, than it otherwise would be. Certainly, Dartmouth College is uncommonly exfensire io its objects ; for it embraces in the arms of its charity, — " the Indians in this land, English youth, and oth- ers ;" — and extensive in its uses— the spread of the gospel,as well as the education of youth. But what will our opponents do with lord Hardwicke's case, of a devise to the poor of a parish, or a sum to be dispos- ed of among poor house-keepers ? — These are publick charities. Does the administration of these belong to the king or the state? — and can the legislature interfere in the superintendence and management of the funds, or in the se- lection of the objects ? The same remark would apply to lands given to a town for the use of the ministry or schools-. Can the legislature change the trustees without the consent of the town, that is, of those, in whom the donor or testator has placed both the fund3 and his confidence ? Have the legislature the same supervision of these funds, as they have of publick money, publick officers, and the publick property of the state? Philips and Bury was the case of a college. It was found- ed by a private person (William Stapleton). The rec- tor and fellows were made a body-politick ; — and by the founder's statutes, the bishop of Exeter and his sucess- ors were constituted visitors. The visitor deprived the rector. The latter brought an ejectment for the rectery- house ; — still claiming to be rector. It did not occur to the three learned judges of the king's bench, who held that the king's courts had, in that case, jurisdiction, that this being a publick corporation, the bishop of Exeter had no jurisdic- tion : — that the property was publick properly, because dedicated to a very extensive charitable use ; — nn use every way publick ; and so the college visitable by the king in bis courts, and no where else. This would have made very 18 130 DARTMOUTH COLLEGE VS. WOODWARD. short work of the dispute, between the visitor and Df. Bu- ry, the deprived rector. C. J. Holt and the House of Lords were just as ignor- ant of this doctrine — of eleemosynary corporations devoted to publick uses, being publick corporations, and so sub- ject to no visitation, but merely to the common law of the land, and in the court of king's bench, — where, and where only, according to this doctrine, all misbehaviour of colleg- es must be enquired into, and redressed, and all their con- troversies decided. On the contrary, they held "that the vis- itor's authority was by the common law"--" the founder hav- ing reposed in him so entire a confidence that he will admin- ister justice impartially" — and in the government of the in- stitution faithfully execute his intentions — " that his deter- minations are final," and, under the circumstances of that case, " examinable in no other court whatsoever" (32). C. J. Holt, in the same case(33) says, that corporations constituted for private charity (and he applies this to Exe- ter College) are entirely private and wholly subject to the rules, laws, &c. of the founders" or donors "and to no others." In another report of the same case(34), the language is, •'But private and particular corporations for charity, (apply- ing this to the same college) founded and endowed by pri- vate persons, are subject to the government of those who erect them ;" — meaning here, the person who provides the revenues, not the king, who gives the charter. All the cas- es speak of colleges founded by individuals, as subject to private visitation ; — treat the property as private property ; —and the king, as having no superintendence, or controul, except that, which flows from the exercise of judicial pow- er ; which we shall have occasion to consider hereafter. (32) 1 lilac 480. 3—1 L.Ray 5 —2 D. So E. 31C. — 2 Kyd on Corp. 179:— - t See also 2 D. k E. 2!)(>-3i5- (33) 1 L. Ray. 8- r34)2D.&E.?5?- SUPERIOR COURT, NEW-HAMPSHIRE. 181 It has been stated here, and elsewhere, that acts of incor- poration, of a similar nature to the present, have been fre- quently amended, and changed by the legislature ; — for ex- ample, the boundaries of towns altered, — towns divided, &c. If lam correct in what I have stated of the nature of our towns and other civil corporations for government, — such as regard the publick policy of the country, — the adminis- tration of justice, &c.(35) the argument from precedent is quite inapplicable. There is no analogy between those and eleemosynary corporations. As it respects counties, towns, parishes, and smaller divisions, why should not the legislature regulate their limits, and alter them as occasion may require ; just as they arrange the militia into divisions, brigades, regiments I &c. The one arrangement is made, for the more convenient performance of some of the duties, which citizens owe the state ; and the other division, for the more convenient performance of other similar duties. "These sorts of corporations," says C. J. Holt(36), "are subject to no founder, or visitor, or particular statutes, but to the genera! and common laws of the realm, and by them they have their maintenance and support." So Mr. Justice Story in Terret vs. Taylor(37) " the legislature may, under prop- er limitations, have a right to change, modify, enlarge or restrain them" (speaking of corporations which exist only for publick purposes such as counties, towns, &c.) " securing, however, the property, for the uses of those, for whom, and at whose expense, it was originally purchased." Do the de- fendants counsel contend, that if a town should acquire by gift, or otherwise, a fund for the support of a school, for the inhabitants of such town, that the legislature could constitu- tionally annex another town, giving to all the inhabitants of the new corporation, equal right to participate in this fund 1 But it has been much insisted on, that this corporation is,rt publick one, and its funds, franchises and immunities have be (.,5) 4 I), k E.2-U- (.>£) 1 I,, liav 8. f3~j ( J Crunch 52 132 DARTMOUTH COLLEGE VS. WOODWARD. come publick, and so subject to legislative controul, — be- cause the public k, and not any particular individuals — wheth- er trustees or others, — have exclusively the whole beneficial interest ; and the legislature are the guardians of that inter- est ; — The trustees are mere publick agents, and removable at pleasure, &c This claim of right seems to be founded, on the greatness of the gift. An individual bestows a sum, the income to be dispensed in charity, among some few individuals. This is a limited charity and the publick have no claim. But he en- larges the fund as his love for bis fellow-men enlarges, — pro- vides for a proportionate increase of the objects to partici- pate in his bounty, — and to make the charity perpetual pro- cures an artificial being to be created, with the right and pow- er of dispensing it forever, according to his mind and will. — This operates as a transfer of the property to the state ; and is a virtual repeal of the powers and privileges granted by law to him as patron and founder. The state it is thought have a right to say to this gener- ous individual, "you intended this for us and not for your- self : — why do you complain that we choose to manage it in our own way ? We know better what we want, and what will benefit us than you do. Depend upon it we will man- age it well." To all this, may not the donor reply, " I had rather do you the favour in my own way. I supposed I had your solemn engagement, that I might do so. If you take back your grant, I will take back mine." This would seem reasonable. C. J. Holt in Philips vs. Bury seems to be of that opinion. " The will of the donor is his reason for ordering and disposing of his own, &c. But Holt lived more than a contury ago. But where do we find it written in the law, that those who are to enjoy the beneficial use of college funds, can claim, — or that any person in their behalf, or as their trustees or guardians can claim to hold and man- age the funds, and superintend the institution, which the do- SUPERIOR COURT, NEW-HAMPSHIRE. 1 33 nors have placed in other hands ? This doctrine, 1 sup- pose must be looked for among the leges non scripts. It seeras little better founded, than the much older one, that dominion is founded in grace. It harmonizes about as well with the law, as the doctrines of a sect of modern philanthro- pists, the basis of whose system is, " that the land holders are not proprietors in chief, — but mere stewards : — the land is the people's farm." This beneficial interest in the state, which is every- thing, (if any thing like what is claimed,) — how is it to be enforced ? when violated, what is the remedy ? — Would an action lie in the name of the state, against the corporation, to recover the college lands 7 And as to the government of the institution, could the state confer a de- gree in the arts ? (I admit their competence to judge of the qualifications of the candidates) — could they appoint, or re- move, an officer of the college ? We admit the right of the judiciary to enforce the trusts, as far as courts have ever gone, or ought to go. But this concession avails the de- fendant nothing. Has the state no way of enforcing its rights but by its legislative acts ? This proves that it has no such claim in law or justice. Every legal or equitable right has its remedy. When the state asserts its claims to disputed rights by legislative acts, it is an admission that its claims will not bear examination. Is it pretended that the state has the same estate and in- terest in the college lands and funds, as in the medical house ?<\38) There, the state secured a title to themselves in the land, before they erected the building, and then became proprietors of the land, building and all : and so made a good speculation out of the college As to these, no one has ev- er called in question their title. But the truth is, the right now claimed for the state, is a hie discovery. Did the stale of Vermont understand tha! (38)Seunc< 22.] .Time (S'i'i 134 DARTMOUTH COLLEGE VS. WOODWARD this state made any such claim, when they (Vermont) made the liberal grant of lands, mentioned in the statement? Were those lands granted for theexclustve benefit of New-Hamp- shire ? What act of this state, before 1816, asserts, or hints at, any such claim ? So far from it, that all the proceedings of the state imply the contrary ? In the act of 1789 granting lands to the college, the pre- amble states, "that the institution had been and would be useful to mankind in general, and this state in particular." the grant is, "to the Trustees of Dartmouth College their successors, and assigns forever, for the benefit of said col- lege ;"— not for the benefit of New-Hampshire. It is well known, that colleges are intended, (and are always so admin- istered) to be open to all ;— no regard is had to state lines. Conditions were annexed to the grant, implying that without such conditions, the disposal of the avails of the grant was entirely with the trustees ; — "that in the expenditure, and application of this, and all grants made by the state, the su- preme executive magistrate and council should be incorpo- rated with the trustees." — The grant of 1807 contains simi- lar conditions, and declares a particular use, or trust, iu rela- tion to the avails : — appropriating them " wholly and exclu- sively'''' to assist the education of the indigent youth of this state. This was hardly generous as it respects Vermont. Bn! the legislature had aright, with respect to their own to bo selfish. The trustees, in relation to the avails of this grant, are to be "responsible and subject to the direction of the legislature, for the faithful discharge of their trust relative thereto." These conditions, the state had a right to annex to their grants, and when the grants were accepted, flic conditions were binding on the trustees. But do not they clearly shew the sense cf the legislature, as to their controul, — or rather want of controul, over the other funds, and the college government? This claim, in behalf of the legislature to pass the acts in question is just as destitute of mafler of fact to support it. SUPERIOR COURT, NEW-HAMPSHIRE. V35> as, on the assumption of the fact, it is, of just reasoning, and of the authority of precedents. The donations which constituted the college funds, the charter informs us, were made f«r the purpose of "chris- tianizing the Indians," and they were so applied for some time: afterwards additions were made to that object, and to " promote learning among the English," and " be a means to supply a great number of churches with a learned, and orthodox ministry." It appears then, that Dartmouth Col- lege was erected for the "education and instruction of youth of the Indian tribes, in this land," in all parts of learning, necessary for civilizing and christianizing the savages; and also of English youth and any others." What interest then, had the province of New-Hampshire, in this institu- tion, except, that it was located within its limits? Suppose the trustees, immediately after the founding of the college, had made an ordinance or law, (they had power to make such, as might tend to the good and wholescmo government of the college, and to the publick benefit of the same, not excluding any person from free and equal liberty and advantage of education, on account of his speculative sentiments in religion) that none but subjects of this state, should receive any benefit from the institution ? Would not this law have been a violation of the constitution of the col lege ; a perversion of its funds ; a wrong done to the gener ous contributors ? If so, with what propriety, can it be said, that the college was created exclusively for the inhabitants of this state ? That the state are cestui que trusts, and have the whole beneficial interest ? Was the christianizing and edu- cating the Indians no object in founding this institution ' I' is believed, there were no Indians within the limits of tin; province. What is the nature of the interest vested in the slate The benefit of having a college erected within its borders : This benefit would have been nearly- or quite a> meat, i '" l&> DARTMOUTH COLLEGE VS. WOODWARD. location had been, on the western, instead of the eastern, bank of Connecticut river. Let it be admitted, that the people of this state derive a benefit from the college ; what title does this confer ? Is there not always a benefit accru- ing to the publick, from the useful employment of the facul- ties, and property of individuals ? Here the benefit is too ex- tensive for the purpose of the defendants argument. If the legislature are guardians of any interest, it is that of the In- dians in this land, and of the English youth. Who consti- tuted them guardians of all these? — not the authors of this char- ity. The legislature appointed themselves guardians. The truth is, the legal and equitable property is in the trustees, to be applied to Indians and others, in their discretion — in the manner usual in colleges ; — subject to the controul and su- perintendence of the judicial courts. The donors might have established a college, for the exclusive benefit of this province ; but they did not. It is sufficient to say, their views were altogether different. And so have been the views of ail men in this state till now. But it is said the annulling of the college charter works no injury to the trustees. It is a sufficient answer to say, that it hinders and prevents them from answering the end of their creation; the end of their politicalbeing. — It takes from them the power of administering the property entrusted to them by the donors, whose representatives they are, according to their declared instructions. The rights of the trustees and visitors and governours have been stated and need not be here repeat- ed. Sitting in the chair of the founder, they have all the rights he had. These rights are infringed,and they are hinder- ed from performing their duties. They are deprived of that controul over the property, and that power of inspecting and governing the institution which the law has wisely said, re- mains with the donors. The munificent Dr. Phillips, late nf this place (Exeter), gave all his estate which was large, to charitable uses- He liberally endowed the academy here, SUPERIOR COURT, NEW-HAMPSHIRE. 137 which bears his name, for the education of youth ; bavin" no regard to town, or state lines, in the selection of objects. He procured a charter from the state, constituting himself, and his nominees trustees, with power of perpetuating themselves, and of selecting the objects of the charity, and of governing the institution. Can the legislature substitute themselves in the place of these trustees, in relation to these powers and duties 1 Is there one man who hears me who believes that #r. Phillips would have made the donation, had he enter- tained any suspicion of the fact ? I know it has been objected to us, that our doctrine plac- es this institution beyond all controul ; — takes away all se- curity, that the beneficial uses intended by the contributors and donors, will be enjoyed ; — is at variance with the just claims of the state, to cherish, and protect the interests of literature. If these objections were founded in fact, it would go far to shew, that what I have stated, as the doctrine of Ihe com- mon law, cannot be correct, — or if it be the English common law, it is repealed by the revolution, and our free constitu tion, and of course is no longer binding here. But how arc the facts. We are so far from denying the right of the leg islature, " to spread the advantages of education, through the various parts of the state ; — to cherish the interests of literature and the sciences, and all seminaries and publick schools ; — to encourage private and publick institutions, re wards and immunities, for the promotion of the arts and sri ences," — that we hold these to be among its most important duties ; — all of which are violated, by the acts in «jtiestion :- These duties we believe to have been at all times, too much neglected, and by none more, than by the legislature of 1816. who in words, acknowledge their obligation and importance The legislature may erect an university, consisting of as many colleges as they please ; anil endow the institution and govern it in their own way: But are not nf liberty to ( her 19 *38 DARTMOUTH COLLEGE VS. WOODWARD. ish the interests of literature, by destroying or altering those erected, for the purpose, and endowed by munificent indi- viduals. We hold, that the power here claimed for, and ex- ercised by, the legislature, would effectually discourage, and prevent all charities of a permanent nature, founded by indi- viduals. We are so far from placing this institution above controul, that we claim for it the protection of the law, against what we consider, as a deadly blow aimed at its existence, by the persons exercising the supreme power of the state. And when, and by whom, has it ever been denied, that the in- stitution, its administrators, property, and rights are al! a- menable to the law, and proper subjects of judicial enquiry? — that the judicial department of the government which can and ought to protect its rights, and redress its wrongs, is bound to enforce the performance of all its duties. On this subject, we have been explicit from the beginning. An institution like this, unprotected by the judiciary, could not exist; and uncontrouled by the law, might be a nuisance, instead of a benefit. The charter may be repeal- ed, for causes known to the law. All contracts and disputes between this corporate body and others are within the ju- risdiction of courts (39). As it respects the state, and the interest the publickhave in all literary establishments, it is for the judiciary to pro- tect these interests, and make them effectual : — to keep this corporation within the limits, prescribed by the charter, and the law of the land. If the trustees put a wrong con- struction on the charter, the constitution, or law of the slate, or make statutes repugnant to these ; the courts will correct the procedure ; compel it to act up to the design of its foun- ders, and to apply the corporate property forever, to the uses intended by them, and to no other; — to govern the in- stitution according to its fundamental laws — just as the do- '30} I Wo. 470- SUPERIOR COURT, NEW-HAMPSHIRE. 139 nors themselves would have done — as far as can be collect- ed from their will expressed in the charter, and instruments of donation : to restrain all abuses of trust ; — to protect eve- ry member, officer and student of the seminary in the enjoy- ment of his rights and privi!eges(40). And where the trustees or governours have, as they have in this case, not only the powers of government, but the le- gal estate, and are entrusted with the receipt of the rents and profits, it is clear, that with respect to these, they are considered as trustees, and are accountable for all breaches of trust. Lord Commissioner Ashurst says, (41) " There is no doubt as a general position, that this court has a controuling power over all charitable institutions. As little doubt is there, that this court will grant an injunction, whenever it is properly laid before them either by positive or probable ev- idence, that the trustees are acting in a manner inconsistent with the trust ; and are either doing, or about to do, what will be detrimental to the charity," &c.(42) Many and various are the occasions, which may call for the interference of the judicial courts(43) : and the exercis of these judicial powers, is not deemed inconsistent with the visitatorial power, which we claim for the plaintiffs : — But it is not to be carried so far, as to interfere, with the discretion- ary powers, confided by the founders to the trustees : — the power of selecting the particular persons, who are to receive the benefit of the charity ; — of making statutes, and rules, not inconsistent with the laws of the state and of the institu- tion ; — of interpreting and enforcing tbrrn within the limita- tions before stated ; — of prescribing the course of educa- tion, &c. &c.(44). As to all these, neither judicial courts, nor any other body of men can, or ought, to substitute their . - ! \V«. 170. (41) i2 V./.. Jr. 4'.}. 1-iU) H I P. W'nn..1'2(i.- U'lk-fii.u n i ' r.S-l — 2AtV. \.\ iH >. — ! Mac. iS" l t+ I J Vl Si IT. ."• I I t 146 DARTMOUTH COLLEGE VS. WOODWARD discretion in the place of the donor's discretion, or that of his visitors or trustees ; — for the law presumes, and I think right- ly, in favour of the latter. It says on these subjects they have the most discretion. — Where the donors have placed the disc vc! ionary power, essentially necessary in conducting and governing all charitable institutions ; there it ought to re- main, as long as it is exercised fairly, soundly, without par- tiality, and free from corruption (45) till some body of men shall be found, belter qualified for its exercise, and more like- ly to fulfil the donors benevolent intentions. I am very sure this body of men will never be, any legislative assembly, con- stituted like ours. On the subject of judicial controul over literary institutions, I need not be more particular, or refer to the cases. We ad- mit it in the fullest extent to which it has been carried by the current of the authorities. Respecting the legislative power over eleemosynary cor- porations, we believe it to be much the same, as that over private persons, and private property. The charter cannot be repealed by a legislative act. Nor can the legislature pass any acts altering the charter, or respecting the internal government or management of the affairs of the corporation, or in any way interfering with its special powers, and privi- leges, without its consent. But with the assent of the trus- tees, who represent the founder and donors an imperfect, or inconvenient organization, may be remedied ; and such al- terations made in the power of visitation, as it may be pre- sumed the donors themselves would have desired. The act of this state of 1807 granting a tract of land to the college, very improperly restrains the grantees from alienating. This greatly reduces the value of the grant ; and on application of the college, may be remedied. And generally, in the case of private corporations, as in the case of private per- sons, special acts may be passed, when the consent of all lavfies, having an interest is. obtained-. SUPERIOR COURT, NEW-HAMPSHIRE. 141 Experience has shewn, that there is no unwillingness in individuals, or private corporations, to apply for such acts. It is confidently believed, that such applications have been too frequently made. How unfounded then is the charge, that our doctrine places this institution above all controul ? We will now consider the remaining objection — that it gives no security for the enjoyment of the benefits intend- ed ; — no security against a total departure from the charita- ble purposes of the donors. On this ground we cheerfully meet our opponents. If the objection is well founded, it will certainly have some ten- dency to shew, that the law is not quite so wise, as we have represented it to be. The argument ab inconvenienti is a powerful argument to shew what tho law is. One, or ten individuals, (the number is immaterial) pro- pose to dedicate property enough to found and endow a col- lege for education. They fix on their plan. Obtain the sanction of the supreme power of the state, in which it is to be located ; that is, they obtain a charter. They themselves become incorporated, as trustees, to dis- pense the charity, and govern the institution. The case would be the same, if, by their consent, other persons should be incorporated as trustees. — The trustees have power to perpetuate themselves. The dedication to charity is irre- vocable. The law takes the institution under its protection, and secures it all its rights, and compels it to perform all its duties. Can any better mode be devised of continuing, beyond the limits assigned by the author of nature to the donors' lives, the same charitable mind and views which was in them .' Is not this the general sentiment of mankind ? — Are not our charitable corporations perpetuated in this way? The very liberal and highly respectable founders of the theological institution at Andovcr, provided a set. of visitors, with pom- •r to perpctualr themselves as (lie best mode of securing for- 142 DARTMOUTH COLLEGE VS. WOODWARD. ever instruction in theology, in that way, they deemed the most scriptural and correct ; — an object with them ; and one, which our legislature have deemed every way proper(46). Dr. Eleazer Wheelock certainly thought so. He repre- sented, that for " many and weighty reasons," it was expe- dient, that his friends should be of the incorporation pro- posed for Dartmouth College ; — and, that as to the trustees in England, "it may be expected, that they will appoint suc- cessors in time to come, who will be of the same spirit with themselves; — whereby great good may, and will accrue, many ways, to the institution," &c. This expectation was a reasonable one, and has received the sanction of lord Loughborough's powerful mind(47). The power of holding the property, applying it, and in- specting and governing the institution, must be lodged some- where. The parent, anxious for the welfare of his offspring, has devised this, as the best mode of effectuating his inten- tions, in all time to come. If he has not devised the best mode ; — if, confiding the power of filling vacancies to the governour and council of the state would be more likely to secure the appointment of men, of the same spirit with the founder; still the founder has a right to judge for himself, and it is not with a very good grace, that we, claiming the benefit of the bounty, should undertake to be wiser than our benefactor, or quarrel with the terms of his gift. It is not my intention to call in question the fitness of the legislature for the exercise of the powers confided to them by the constitution. But it is my doctrine, that they have no power to change the constitution of this seminary with- out its consent, or to exercise any visitatorial power over it. Why should tbey have this power ? Is it conferred by the clause, which makes it their duty to cherish the interest of all seminaries of learning ? Would the change of constitu- tion of this literary seminary for example, at the pleasure of (46) See act of 27 June 1816, Sect. 8. ('17) See 2 Vez. Jr. 619, kc. Ex parte Wrangham. SUPERIOR COURT, NEW-HAMPSHIRE, 143 the legislature for the time being, have a tendency to secure the permanence of the institution ? — Make its immediate ad- ministrators faithful to the donors — above all things desirous to execute their will ? — Would it give security and inspire confidence, in the officers and instructors of the college ? — Would the legislature, or its committees, be an useful, or convenient forum, for (he inspection, and controul of estab- lishments of this nature and for settling their disputes ?(48) And above all would individuals, if not suffered to conduct the charity according to their own judgment and consciences, and agreeably to the constitution they prescribe, found and endow literary institutions ? — And would publick bounty supply that efficiency, which the zeal and beneficence of individuals are capable of giving to a system of education 1 If there is any reliance to be placed on the opinions of learned men, fortified by cur own experience, no body of men can be imagined every way worse qualified for the ex- ercise of the powers now claimed for the legislature. Some of our most experienced statesmen, while they tell 113 that this department is much disposed to extend the sphere of its activity, and draw all power into its impetuous vor- tex, represent it, from its want of capacity for deliberation, — from passion — and from other causes, as exposed to the intrigues of executive magistrates ; — its policy as fluctuat- ing(49) ; — its sudden changes, and interferences in cases affecting personal rights, becoming jobs in the hands of en- terprising and influential speculators(50). And why should there not be persons ready to speculate in college property, and college offices, as well as in other property and in other offices ? AVe have been assured too^l) that the legislature of one of our most respectable states, " have deliberately in terfered with cases notoriously within the jurisdiction of the (48) 4 1). & E. 243.— 2 Vez. Jr. 019. Ex parto Wranghnm. (4'J) Mr. Madison, Federalist No. <1S. '(50) Federalist No. ii (5\S foop. Just 430 144 DARTMOUTH COLLEGE VS. WOODWARD established courts ; and that some of the cases, in which this interference has taken place, were irresistibly ludicrous."* It is not necessary for my present purpose that I should adopt the senlimen's quoted in their fullest extent. — But af- ter having made these quotations it is but justice to our leg- islature, to declare my belief that in exercising their powers, they have been in general, as correct as their neighbours. The evil lies in the nature of the body, and its total unfitness for this work ; — and its liability to be drawn in, by interested individuals to act out of its proper sphere. Jt has been often said that the legislature have no motive to divert this charity from the uses declared. I agree that it is and always will be the true interest of the state to ab- stain from all injustice — all measures which shall divert char- ities, to improper purposes. But let the power to interfere in respect to private charities be conceded and where is our security against abuses ? Is it uncandid to say that the time may arrive, when those that may be called to guide our councils, and to compose our legislature, may not be so dis interested, and patriotic, as our present rulers. It is possi ble that they may be prevailed on, even at the hazard of los- ing their offices, (if there should be any danger of that) to convert this institution into an instrument of party, and change its trustees and officers to gratify private pique, or to raise an influence favourable to them or their friends. It is certainly within the limits of possibility, (I do not say that it is probable) that this administration of college revenues, and college affairs, by committees of the legislature, might prove in the end as hurtful to the state as to the college, — b} r corrupting the members, when less virtuous than at pres- ent. There is every reason to believe, that the spoils of the monasteries in another country was attended with this per- nicious effect. * Reference is made to an act wliich the compiler of the index to the laws was ashamed to insert SUPERIOR COURT, NTAV-HAMFSHIRE, 145 We hare shewn how abuses of trust may be corrected, when the revenues and government are in the hands of the corporation: and, I think, have shewn that in the exercise of the powers now claimed for the legislature, there may be abuses. Let our opponents shew how these can be cor- rected. — Who shall visit the legislature 1 Quis custodiet ip- so* cusfodes? Phillip the Second of Spain, husband of Queen Mary, had a mind to be appointed Regent of England, (all for the good of the English nation no doubt) during the minority of the child of which the queen was supposed to be pregnant ; — and offered to parliament security, to resign the regency, on the child's coming of age. It was nearly carried in the house of peers, when lord Paget stood up and said, "Pray my lords who shall sue the king's bond should he happen not to resign." If I have succeeded in any degree in my attempts to shew, that Dartmouth College is to be regarded as a private corporation, — its property and franchises private, — subject to the same judicial and legislative controul,as individuals and their property, and to no other ; — and that the circumstance of the appropriation of the property to the use of a college, founded and governed like this, no way alters the case ; it will not be a difficult task to shew, that the acts in question violate the constitution of the state. As it respects the charitable fund, the acts take it from the holders without their consent. The 2d article of the bill of rights gave the plaintiffs " the right of acquiring, possess- ing and protecting" this fund, and the law gave them the power, and made it their duty to apply it to such uses, as the donors had declared. The 12th article declares that '* every member of the community (and this embraces corporate bodies as well as individuals) " has a right to be protected by it in the enjoyment of his property." What is the nature of the protection afforded by these legis- lative acts ? It has been said, indeed, that by the same 12tli 20 146 DARTMOUTH tOLLDGE VS. WOODWARD. art. it is implied, that the property of an individual may be taken from him and applied to publick uses, without his con- sent. By the constitution of the United States (amendment V.) it is declared that " no private property shall be taken for publick use without just compensation." I admit that when the publick safety, or even convenience requires the lands of the plaintiffs for sites for forts, arsenals, for roads, ca- nals, Sec. on payment of a fair equivalent, they maybe tak- en, in the same manner as lands of individuals. Do the defendant's counsel mean to be understood as contending, that this clause in the constitution authorizes the state to take private property of individuals against their will for any other purposes ? — or that the acts in question can be justi- fied under this article 1 As it respects the corporate franchises, I contend that these come under the denomination of property. The plain- tiffs have an incorporeal property in their membership, franchises, and privileges ; These have been wrested from them, and have been bestowed upon others. If this act of violence had been committed by an individual, the plaintiffs by the 14th article of the bill of rights, would have been en- titled " to their certain remedy by having recourse to the laws — to obtain right and justice, conformably to the laws." But here the injury is done by the legislature, under the form of legislative acts, and under colour of law : But this violation of the plaintiffs rights is not the less an injury on that ac- count. The fifteenth article declares, that " no subject shall be despoiled or deprived of his property, immunities, or privi- leges but by the judgment of his peers, or the law of the land :" — which surely means in this place the same law which governs subjects in general : and not a statute or law which itself inflicts the injury, and does the act forbidden. Such a doctrine seems absurd. To be deprived of property by the "judgment of one's peers, or the law of the land," is the iame thing as to be deprived by due process of law. SUPERIOR COURT, NEW-HAMPSHIRE. 147 It is admitted, that the plaintiffs, both as a body politick, and as individual members, like all other corporations, and members, are liable to be deprived of their corporate prop- erty, and franchises, for causes known to the law. If these acts of the legislature, are attempted to be justified on the ground of forfeiture incurred by the plaintiffs ; — still, they violate the constitution; because the forfeiture without which there can be no deprivation has not been ascertain- ed in some "due course of law"(i2). Our statutes of 6 February 1789, and 19 June 1794,(o3) are predicated on the idea, that grants of land, the privilege of erecting bridg- es, canals, locks, Sec. are compacts between the state, and the grantees. It provides that disputes between them concerning the performance of the conditions, shall be determined by the superior court as a court of equity. These acts declare that "the liberty and safely of the subject require, that re-grants of the same property and privileges should not be made upon mere suggestions, with- out the intervention of proofs, and trial by jury, accord- ing to the constitution and laws, to ascertain the perform- ance or non-performance of such conditions." — The parties affected are to be summoned, and the trial to be by jury — This language, as dignified as it is correct, becomes a legis- lature. — It was worthy of all imitation. Instead of the state asserting by act her title to what might, or might not, be her own, according to tiie fact of performance, or non-perform- ance of conditions by her citizens, she goes into her own cour's, on a level with (lie meanest of her subjects ; — ad- mitting, a::ci correctly admitting, that in privileges, a;id the right to impartial trial, they are onale\cl with lier(.'/4). in the case at bar the acts are a legislative sentence of de- .<■ .'. accompanied by a writ oi s-cixin, in favour of the of tin" "(.'""noil o| !'• vr,'.iiii"«ifXi'\v-Vnrk( , J.Ml M rli !:'''-../•'. .1:1 :i.-t cftli" '<-- nil'!_\ I • ;u iii'n.jj llic giv.nl lu .Mm i'llili o! •Ii<: " solr l\£iit Si:i(l aloyilt£ tlir '. ::) x. n. i "«-s,rc DARTMOUTH COLLEGE VS. WOODWARD of learning and its foes, than to take upon itself to prescribe systems of education, elect the professors and officers and regulate the interinur of colleges as its caprice may direct. It only remains to consider whether the legislative acts in question violate the constitution of the United States. Is the charter a contract within the meaning of that constitu- tion 1 If it be, I trust, I need not add any thing to the obser- vations which have been made, shewing that its obligation has been impaired. It has been my endeavour to shew that when property is given to a charity of this kind, the owners, as founders or donors retain the power of inspecting its application, of pro- tecting the interest of the foundation, and of correcting all abuses in the management of the property and in the gov- ernment of the institution. When a charter or an act of incorporation like the present is granted, this power is neith- er lost nor transferred to the king, the state, or to the pub- lick, but, by the founders consent and at their request is vest- ed in the trustees : Thenceforth they, as a body corporate hold the property, as the perpetual representatives of the donors ;-are perpetual visitors and governours of the charity. This is the will of the donors : — and the supreme power- granting the charter sanctions the transfer, and stipulates by implication with the donors and expressly with the trustees, that they shall forever as a body politick hold and enjoy the property, and the powers and franchises contained in the charter. The charter is evidence, and conclusive evidence of the compact, its terms and conditions. The most im- portant of these are, that the body politick shall have the very necessary power of electing members in the room of such as go off; — the right of acquiring and holding pro- perly for the use of the institution : — the power to make statutes for the government of the institution, and gen- erally to exercise all the powers, and to have all the privileges usually belonging to the government of a college. SUPERIOR COURT, NEW-HAMPSHIRE. 157 Here seems to be every thing requisite to form a compact. The kins; is one party, the donors in the first instance, and then the trustees as their acknowledged substitutes or rep- resentatives are the other party. There are stipulations, express and implied, in favour of each party. — Dr. Eleazer Wheelock acted for the donors, (or for himself, if it should be thought the property contributed was then in him.) Is not this Dr. E. W heelock's language ? I propose to give the funds collected here, and which have been hitherto em- ployed in support of the Indian charity school, — those now in the hands of the trustees in England, who are in fact my trustees, — those offered, and procured here, with more im- mediate reference to the college to be located in the west em part of New-Hampshire, procured at my solicitation ; — I propose with these funds to found a college ; — certain ot my friends to be appointed trustees, — and the corporation to have certain powers and privileges, (the same which were conferred by the charter) and the uses and purposes of the institution the same as those specified. The king accepts the proposal, and thereby secures to his subjects (not mere ]y those inhabiting the province of New-Hampshire) the benefits arising from such an institution in such a place rand these benefits his courts will take care shall be forever enjoyed. The trustees after accepting the charter are bound to ans- wer the end of their creation ; — and apply the funds, and such as they may procure, forever to the uses designated by the donors, and declared in the charter. This was a good contract on both sides. The original donors have no doubt already received their reward. The trustees, till this unlooked for intrusion by the state were er, joying the satisfaction of seeing the good work prosper in their hands ; — and the state and its citizens were reaping the advantages resulting frorn the diffusion of knowledge The charter and its privileges were purchased with some thing b-jtt^r than motrv. ■— 1< '<':>- »mi a monopolv even ot I £8 DARTMOUTH COLLEGE VS. WOODWARD. charity ; for the slate, its rulers, and all charitable individu- als may still foster learning by endowing colleges and free schools. Does not then every principle of good faith re- quire the fulfilment of the contract on both sides ? It is too late for the king to quarrel with the terms. — He never did. No complaint was made till 1816. What claim have the state now to the funds or the controul over the in- stitution, except that they prefer the absolute property to the benefit secured by the charter ? — And what sort M' title is this, in a court, of law or equity ? — And what should we think of an individual who should assert it ? The privileg- es granted were such, and such only, as the experience of centuries had demonstrated to be proper and safe. Was the king deceived in this grant ? Who practised the deception ; and in what does it consist ? Does this compact bear any resemblance to that which may be supposed in the formation of a county, town, &c. ? Here, private properly is given for certain purposes, and on certain terms and conditions ; and in return, certain franchi- SC3 are bestowed. We have seen that our law regards grants of corporate privileges for the holding and managing property from which the pubiick derive a great benefit as a compact(/i9). It is difficult to imagine a reason, why compacts of this sort should not be entitled to the protection of the consti- tution of the United States. A state may contract(60), and experience shews, she may pass acts violating her own sol- emn contracts, as well : s make laws impairing contracts to which she is not a party. I know it has been said, that the annulling of this charter deprives the plaintiffs of no valuable estate or interest. The whole beneficial use was in the state. In this view the charter is a mere appropriation of the funds by the king, not (59) Sec arts of GtliTeby. 1789, and 19lh Juno 1794, N. H. Laws, edn. 1S15, p. 67. 7S. — mite, p. I IT, — a:id see alsoX. II. Turnpike acts — Bank acts, kc. (60) 6 Cornell 137. SUPERIOR COURT, NEW-HAMPSHlRE. 169 by the donors, — to the use of a college, which he was pleas- ed to call Dartmouth College ; — the charter was the sole act of the king ; — there was but one party ; — Ihe king, con- sequently may change it, though drawn up it} solemn form, as men change their last wills though in the name of God amen.— The donors parted with all their property ; and Dr. Eleazer Wbeelock (from his great love, I suppose, for mon- archy,) gave all to his majesty,who was then graciously pleas- ed of his own special grace, certain knowledge and mere mo- tion, with these funds to constitute and endow a college ; — and for the present place it under the administration of cer- tain persons, as his agents — publick agents — to manage this publick property. — His successors, who surely inherit all the love of learning and all the honesty and justice of the crown, have only done what his majesty might have done, removed one set of publick agents and provided for the ap- pointment of another. — Either this account, of the nature of this property, or ours must, I think, be the correct one. Every one who reads the charter can determine. If the state have no legal or equitable estate In these funds and in this charter, its franchises and privileges, then this objection entirely falls lo the ground. The truth is the trustees, as a body politick, are the legal and equitable own- ers of the property and of the franchises conferred by the charter : — as long as they hold and apply the one, and use the other according to law, their property is sacred and ought to be protected from legislative, as well a> every oth- er violation. That the plaintiffs hold the funds for others (certainly, if (he state be not those others) no ftay affects Ihe plaintiffs' right to claim the benefit of the compact formed by the charter, unimpaired. I do not think that authorities are needed on t h is part oi >>ur case. In Fletcher vs, IVi !>'*;! i? was decided, that ? 160 DAftTMOtJTH COLLEGE VS. WOODWARt). grant of land by a slate is a contract and protected by the constitution of the United Slates. The legislature of New -Hampshire have, in effect, deter- mined that the. grant of the privilege to make a canal, &c. is a compact (62). In New-Jersey vs. WiIson(63), it was decided that where the state granted an easement — the exemption of certain lands from taxation — the grant could not be repealed by the legislature. In Terret vs. Taylor (64), it was held, that a legislative grant was not revocable, and that property held by certain persons for the use of the church could not be divested by an act of the legislature of the state, in which the lands were situate. In Pawlet vs. Clarke(65), it was held, that where lands were granted by the state to the town in which they were situate "for the use and support of religious worship" the legislature could not by an after act appropriate the same lands "for the use of the schools of such towns." No authorities have been cited which militate with the principles recognized and established by these cases nor any arguments adduced, which seem to require a particular consideration. Though I do not think the arguments of the defendant's counsel sound, yet I have too much respect for those who urged them to adopt the language of lord Coke, in the case of Sutton's hospitaI(66), — "all the arguments which have "been made against this honourable work of chariti/, are " hatched out of mere conceit and new invention, without "any ground of law, and such which have any colour were utterly mistaken" — not founded in fact. I am sensible much might be added to illustrate and en- force this and the former heads. But as the court are fully (62) See ante, y. 147. (63) 7 Crunch 164, (6i) y Crunch 43. (05) 9 Crunch 295 (6C) 10 Co. 2'.'. ' SUPERIOR COURT, NEW-HAMPSHIRE. 161 apprized of the general principles on which we contend the acts of the legislature in question are impeached, I forbear further detail. In advocating this cause, I have not for a moment been re- lieved from a most oppressive sense of its importance, — to the literary institution whose rights have been prostrated, and to all our charitable establishments for the promotion of religion or literature: the cause of one is the cause of all. I might have declined the duty of an advocate : but I have felt myself impelled by a solemn sense of duty,-— the duty which every citizen owes his country, to make every exertion in my power to maintain and defend the con.'fitution against all violations, from what quarter soever they may proceed. The plaintiff's have discharged a necessary duty on their part, — that of bringing this cause where relief can be obtained. Nothing remains, but to expect that impartial judgment which the law is bound to pronounce on the facts of the case. Mr. Bartlett, — However arduous may be the duties which devolve upon the defendants' counsel in this case, I rejoice that we have not here to encounter all those diffi- culties which, from the publick excitement, appear to have burthened the publick mind. The hopes, fears and interests of those, who partake of the feelings of the parties in this action, may present many difficulties to their coming to a proper decision ; but none of those obstacles lie in the path of the court.— Many cir- cumstances at this moment call us to rejoice, that the breath of faction, whatever tempests it may raise upon the surface, can never disturb the serenity of the atmosphere that sur- rounds their elevation — that whatever may be others' feel- ings and passions, our system of government has given us a 16*2 DARTMOUTH COLLEGE VS. WOODWARD. tribunal, which in all judicial proceedings may look with perfect unconcern upon " this noisy babel earth, nor feel its giddy whirl." From the course that has been adopted by the defend- ant in this action, it is perfectly apparent he has no objec- tion that the plaintiffs should investigate, however informal- ly they may come to it, every part of the ground upon which he stands, for had he felt any want of confidence, he could, without any lack of courtesy, have stopped them in this prosecution at its very threshold. That the name o£ a corporation may be altered with, or without their consent, and by a power much inferior to our legislature, would not be contested even by the most undoubting disciple of the modern doctrine of corporate supremacy(l). — And when the name is thus altered, it is indisputably settled that the corporation must sue by its new name (2). Should the plaintiffs, on a plea in abatement, have amend- ed their writ and taken the unwelcome name of the amended charter, even then, without a further extension of courtesy by the defendant, their action must have failed ; — for what- ever be the final decision on the validity of the law, the de- fendant, detaining the articles sued for as an officer in the discharge of a publick duty under that law, could not be found guilty of a conversion to his own use in this form of action (3). [The Chief Justice here observed that although inclined to the opinion that this was not the proper form of action, yet he understood that point to be waived by the parties.] The defendant, sir-) does most cheerfully waive this and every exception in point of form, with a desire to acceler- ate the plaintiffs' progress to the temple of justice, believ- ing they will the sooner find there the inscription to them- (1)3 Rur. 1780.— 3 Term Rep. 240. (2) 1 Kos. Sc Pul. 40.— 3 Salk. 102.— 1 L. Ray. 30. Rac. Abr. Corp. E, Com. Dig Franch. F. 1—1 Rol. 512. (3) 2 Mass. Rep. SUPERIOR COURT, NEW-HAMPSHIRE. 163 selves of mene lekel upon its walls The plaintiffs, howev- er, having been thus careless in their process, it may per- haps excite less surprise, should they be found sometimes inaccurate in their principlss, and not always infallible in the application of them. The question is understood to be upon the validity of the acts of the legislature of New-Hampshire of June 27, 1816, entitled " An act to amend the charter and enlarge and im- prove the corporation of Dartmouth College" (4) — and of Dec. 18, 1816, entitled "an act in addition to and in amendment of an act entitled an act to amend the charter and enlarge and improve the corporation of Dartmouth Col- lege" (5). The defendant does not introduce to the present discus- sions the additional act of Dec. 26, 1816(6), as he does not rest his defence in this suit upon any provision of that act. The imperfect manner in which our remarks may be of- fered in answer to the plaintiffs' learned counsel, it is hoped, will find a sufficient apology in the disadvantageous circum- stances under which we appear. — A. recurrence to books, to principles, to reason, could give no very certain indica- tions of the objections to be raised against these acts of the Legislature. Those objections, as we apprehend, resting principally in the subtle ingenuity of the learned counsel Could not, by our feeble efforts, have been anticipated. — And since (hey were but yesterday communicated to the court with the splendor of learning and depth of logick common to those distinguished advocates, a few hours only have been left us to consider even cursorily the wide extent of the ar- gument. f cannot say that f follow precisely the order or form of their objections to these legislative arts, but believe tin' (i) X H. Laws, Tu :,(■ Si-: •-.. i s i r, . | ,. is (.-,) X. li. I/.US, S<>\ '. S s< ,. 1S1 ), n .,-•». (6) X. H. U.< ,, :v,- .-. S ,= . 1 sir,, r, - '.' i 164 DARTMOUTH COLLEGE VS. WOODWARD. their arguments were directed to the support of the follow- ing general positions — That the. legislative acts in question are contrary to the ftrijiciples of natural justice. That corporations of this nature are independent of legislative control. That the provisions of these acts violate the constitutions of New-Hampshire and of the United States. This court unquestionably have the power, and cases may exist in which it shall become their duty, to declare acts of the legislature void ; but this power or duty by no means demand of them an indiscriminate warfare against all Legislative acts which may or may not be of doubtful expe- diency. — It is a power evidently not to be exercised for slight reasons, — " Admitting such a power in the judiciary," says judge Thompson, "it ought to be exercised with great caution and circumspection" (7). •' As the authority to de- clare an act of the legislature void" (says judge Judell) " is of a delicate and awful nature, the court will never resort to that authority but in a clear and urgent case"(8). By an eminent jurist of this state it. has been observed of this pow- er, that "it is a gem which would tarnish by too frequent handling !" Whatever opinion the justices of this court in the charac- ter of legislators might have entertained of the policy or ex- pediency of these acts, sitting as a judicial tribunal, their on- ly enquiry can be whether the legislature, had power to pass such acts, and not as to the wisdom of the exercise of it. — Though were it proper here to enter upon such enquiry, I have no apprehension that the legislature would suffer by the investigation. Notwithstanding the severity of remark which one of the learned counsel has been pleased to in- dulge upon that part of our system, we have no doubt il {7) 9 Join,-. Rep. 5i (8) 3 Dal. H op. 399 G4 SUPERIOR COURT, NEW-HAMPSHIRE. 165 will continue to be held in high consideration. And it is believed that the court will not refuse a proper respect to an opinion expressed in the form of a law by the other two branches of government — a law, which to become such, must after due deliberation have passed the house of repre- sentatives, have passed the senate, and been approved by the chief executive magistrate of the state. " With such a weight of prima facie evidence in favor of these laws" (said judge Thompson in Livingston vs. Van Ingen) "I should not have the boldness to pronounce them void, with- out the most clear, satisfactory and unanswerable reasons (9). "And in such case" (said Ch. Jus. Kent.) "the court should be able to vindicate itself by the soundest and most demonstrable arguments"(10). Such authorities need not the support even of Ch. Jus. Parsons' opinion, as expressed in the case of Kendall vs. Kingston(ll). Nor need we insist upon the principle any further than is already adopted by this court in their rule of decision jiistitia fiat, and the max- im of their province dicere non dare legem. I. The plaintiffs' first position that the acts in question are contrary to the principles of natural justice is certain- ly a very broad and indefinite one. " The ideas of natural justice''' ('says a learned jndge(12 ; are regulated by no fixed standard ; the ablest and the pur- est men have differed upon the subject, and all that the coun could properly say, in such an event, would be thai the legislature (possessed of an equal right of opinion) had passed an act, which in the opinion of the judges, was in- consistent with the abstract principles of national justice. "- "The court" (says the judge) "cannot pronounce it to be void, merely because it is in their opinion contrary to the principles of natural justice." And (he strong language of sir William Blackstone h that if the legislature saw (it to 'J i 'J Johns. Rep. 564. (lo) Ibid. 'Hi . Mass. \t< |>. 5S4. 1 Dal K'P. i'.J'J. 166 DARTMOUTH COLLEGE TS. WOODWARD. enact a law manifestly contrary to the principles of natural justice he knew of no power that could declare it void"(13). But if the court find in these acts any thing contrary to the principles of natural justice, the defendant will disdain to protect himself even by the unequivocal authorities above cifed. He asks no aid for injustice — no protection by acts of the legislature, unless they are equitable in principles as well as legal in their operation. As an investigation, how- ever, of the expediency and propriety of the legislature's passing the particular acts in question would open a wide field for discussion, which would at once manifest the irrela- vancy of such an enquiry before a judicial tribunal, we shall forbear to dwell upon, or even to notice the facts and circum- stances which not only justified but demanded the passing of the acts in question ; and shall consider that point to be set- tled by the acts themselves, unless upon the face of them something appear to rebut that strong prima facie evidence. In support of their first position, the plaintiff's counsel say that these acts of the legislature destroy the old, create a new corporation and transfer to it the property of the former. Here we protest against imputing to the acts of the legis- lature any consequences which result from the plaintiffs' op- position to and violation of those acts. If by opposing they have forfeited any office or place they held by the law, let not the law be made accountable for the effect of their trans- gressions. As well might the tenants of our State Prison re- proach the statute book for the consequences of their crimes. We appeal to the statutes themselves to negative this de- claration of the plaintiff in support of their first position. The title and preamble of the acts certainly do not ex- hibit proofs of any such design as the plaintiffs impute to then) ; but to enlarge and improve the charter of this in n."0 1 131k. Com 91. SUPERIOR COURT, NEW-HAMPSHIRE 167 iiitution ; and in the opinion of the legislature, who in this case can have no other interest than that of the publick, to render it more extensively useful. The object here announc- ed i3 certainly a laudable one, and no doubt, we shall be able to shew, is within the power and duty of the legislature. The first section of the act of June 27 changes the name from College to University, — increases the number of trus- tees from twelve to twentj'-one ; their authority is more de tailed, but not extended to any object beyond that of the original design of the institution, nor are the funds diverted to any new purpose. By the second section a board of overseers is constituted. The third, fourth, aud filth section prescribe some additional duties to the offices of president Sec. The sixth section provides for the appointment of the additional trustees and for filling the vacancies, until a meeting of the board, by the governour and council. The other parts of this and (he two subsequent sections extend merely to the meetings, inspection of the records, oath of allegiance and freedom of religious opinions. The first section of the act of Dec. 18. provides for calling a meeting of the trustees in consequence of a quorum not having as- sembled at the annual meeting and for filling of vacancies which had happened since that time. The second section provides that nine may form a quorum for business &c. and the third enacts? that the trustees shall make and sub- scribe the oath of office. In which of these sections then, have the plaintiffs dis- covered all this mischief? Is it that which abolishes the oath of allegiance to the king of Great-Britain, and substitutes an oath to support the constitution of the United States ? or the section which, conformably to that constitution, guar- antees freedom of religious opinion ? If any of their num- ber were born subjects of the king of Great-Britain, and adhere to the doctrine that a subject cannot expatriate him- self. ?V n a^ay they insist at least in argument, that the prin- 160 DARTMOUTH COLLEGE VS. WOODWARD. ciples of natural justice are violated in compelling them to swear against the allegiance to which nature had bound them. How have these acts destroyed the corporation ? Is it destroyed by the change of name ? What hecatombs then arc annually sacrificed by legislative acts, passed for the al- teration of names. — But that the corporation with a new name remains the same in all its rights, duties and privileges is most incontrovertibly settled in the case of Colchester vs. Seaber(14), and Rex vs. Pasmore(15). In the one case where the corporation by a new name sued on a bond given to the corporation in its old name, lord Mansfield in deliv- ering the opinion of the court says, "it is argued that this new corporation is totally distinct from the old one ; but there is no authority, — no dictum for it." The same is decided in Miller vs. Spatiman(16) when that learned re- porter has this marginal note : " A corporation does not lose its franchises by a change of its name."' The same is decided in the Mayor and Burgesses of Scarborough vs. Butler(ir), Knight & al. vs. Corporation of Wells(18), as also in the authorities before referred to on this point con- firmed by the whole record of judicial decisions. Has Iht: addition to the number of corporators abolished the corporation, or in the language of the plaintiffs " confis- cated their property?" As this point must be more partic- ularly noticed in our consideration of the private rights claimed by iheplaiutiA's under their constitutional objections, we shall leave ii. for the present upon the opinion of the court cited from the 3 Term Rep. 241 — which supports this power as exercised by the Crown alone, and that too in a case where the corporators had personal interest in the pi) .i Hi:r. 1870. (l.i) o Term Hi- p. 240. (10-) I H:iun) Ibid'2. (21) Ibid. (22) Haven vs. Rochester Strafford Supr. Ju. Co. Sept. T. 1814 (23) 1 Kydoa Corp. 18. SLPEUIOK
    common, &r. a) ibid n. 1 72 DARTMOUTH COLLEGE VS. WOODWARD. In another division may be included those corporations for the appropriation of alms lo purposes of a private na- ture ; as to the poor of a particular parish, &c. The in- terest exists here in individuals, but usually not in the cor- porators who hold it in trust for those to whom it is ap- pointed. In a still more comprehensive class, may be embraced those corporations which are purely of a publick nature. The commonwealth may name individuals as corporators to perpetuate a corporate succession, the better to carry into effect objects of publick importance, and with no design to grant emoluments, or exclusive personal privileges to the individuals. If individuals acquire by such publick acts any personal advantage it must like other privileges incidental to publick laws yield to such modification as their principal design requires. Such are the universities in England, and institutions of a similar nature in this country. They are of a civil nature as they directly affect the welfare and prosperity of government, and as was observed in the argu- ment of Phillips vs. Bury (26), fatal would be the consequen- ces if they were to be exempted from legislative controul, " the great part of the nation would not be subject to the rules and government of the common law, for the rich men were got into guilds and fraternities, the menof learning into colleges and halls, the poor into hospitals, and those called religious into monasteries. Now in all these the nation have a publick interest, these are all places and people of publick interest and concern." But whatever interest the publick may have in such insti- tutions, and whatever necessity may exist for their reform and improvement we are told by the plaintiffs that the leg- islature have no power to apply a remedy, but that resort must be had to some other tribunal or the evils however great must be submitted to. (26) 4 Mod. Rep. 11". SUPERIOR COURT, NEW-HAMPSHIRE. If 3 It may here be generally observed, that unless (he legis- lative power can remedy defects in ihe original charter es- tablishing such institutions, no remedy can be applied ; for whatever authority the courts of chancery or King's bench can exercise, must be confined to the existing statutes, and can make no provision to guard against evils in future cr to secure advantages not already provided for(27). In speaking of legislative power without reference 1o the restrictions of our constitution (which we shall presently consider) we could not have expected to hear the plaintiffs attempt upon English principles to support the position that it is inadequate to the correction or amendment of existing laws or charters. The undisputed text book of the English law in its comments upon the legislative power of Great-Bri- tain is in this language : — " It hath sovereign and uncontroul- able authority in making, confirming, enlarging, restraining, abrogating, repealing, reviving ami expounding of laws con- cerning matters of all possible denominations, ecclesiastical or temporal, civil or military, maritime or criminal." — " All mischiefs and grievances, operations and remedies, that transcend the ordinary course of laws are within the reach of this extraordinary tribunal(28)." It may be my misfortune not to have better understood the object of that part of the gentleman's argument in which he dwelt with so much eloquence upon the weakness and wickedness of our legislature. Whether it were intended to prove that no legislative power exists in our government or to shew the impropriety of that power being exercised by our general court, the force of it was equally lost upon my unbelief.— Our legislature (said the gentlemen) are illiterate, are ignorant, and "he cannot tell whether their language is of the English or Indian tongue."—" They are subject to passions and may be influenced!)}- intrigue."— " Majorities (•27) 1 I'.lk. (>,.., in. -iSt—IJar (Jli. !'. -- : !■: i '"h. Rep. 66: k> l Ulk f'jini i. I G i». 174 DARTMOUTH COLLEGE VS. WOODWARD are always wrong." — If these things be so, it is to be regret- ted that all the candour and reason of that part of the gen- tleman's argument should be lost upon a tribunal who have not power peaceably to change our form of government, and who probably cannot be persuaded to recommend rebellion. But from such gloomy reflections let us have a moment's relief in a specimen of that logick by which these misde- meanours are proved upon the legislature. "If" (said the gentleman) " certain individuals without authority had taken possession of the college buildings, they would have been guilty of trespass. — The legislature passed an act, in Ihe execution of which they became authorized to take posses- sion ; therefore the legislature are trespassers, Sec — Had a similar mode of reasoning been applied to that gentleman's judicial proceedings, it might have brought him and his log- ick to a conclusion not altogether so agreeable. — For in- stance, if the sheriff of the county execute a person without authority, he is guilty of murder — That gentleman and his associates upon the bench in the due course of judicial pro- cess gave the sheriff authority. Therefore, &c. Again for the task he has nssigned to us — After ad- mitting that the king of Great Britain possesses much power, and saying that parliament is 1 omnipotent, it is asserted that our defence cannot be supported but by shewing that our legislature possesses more power than king and parliament both. Now whatever might be the gentle- man's doubts as to the national language of our legislature it is believed the legislature would be at no loss for the na- tional character of such reasoning. But we shall be content with that portion of parliamentary power which may be left to our legislature after abating from it all the restrictions of the constitution. For "an act of par- liament is the exercise of ihe highest authority that this kingdom acknowledges upon earth. It hath power to bind 'nery subject in U\o land and the dominion? f hereunto !»e- SUPERIOR COURT, NEW-HAMPSHIRE. 1T5 longing, nay, even the king himself, if particularly named therein(29)." And yet while the very existence of gov- ernment requires that the legislature should have power to pass laws which may affect the property, liberty or life of every citizen of the state, it is argued that an authority equal to the establishment of an ordinary municipal regula- tion would be unsafe in their hands upon a presumption of the possibility of its abuse. Such was the gentleman's idea of their propensity to abuse power, that he could find for them no parallel on earth, but he lias gone to the court of Pandemonium for illustra- tion. Had the legislature committed all the outrages charg- ed upon them, without such resort to heat his imagination, might not his memory have supplied him a reference of more recent authority ? — Might he not have pointed to a tribunal to which even Rhadamanthus would have surrendered his robe and seal. The legislature forsooth so subject to "passion" and " in- trigue" are to be denied jurisdiction over this corporation that the supreme controul of it may be vested in some haH dozen trustees, whom, it must be taken for granted, no pas- sions can ever move — no intrigue ever influence ! That the legislative power is amply sufficient for muci. greater things than ours has attempted in this case is no', only true in theory but that it has long been exercised in practice we will shew by a series of cases both in (Jrea: Britain and the colonies. By the English doctrine so fai are corporations of any kind from being above the legislative power, that they can be dissolved at the pleasure of parlia merit ; and a fortiori must be subject to every regulation which parliament may deem expedient(.'JO). This power was ever considered safely entrusted to par- liament as the guardians of the community, whose interest" (-20) 1 Rlk r„i,nn. Ifcii. '1(0 . 533.-8 Term. Rep. 4 30— Doiig> Rep 637. 35) 4 Term Hep. 236-7 — 244. — 2 Term Kep. 31*. (3fi)4.M'Ml. Rep. 233. (37) 2 Dou£. Summary 183 24 178 Dartmouth college vs. woodward. corporation's). In 1784, the charter of Trinity church in New-York, with regard to induction was repealed by the legislature(39). To these might be added mapy other in- stances, (as 3 John. Rep. 127—151,, &c> But I will here leave the question as to the subjection of corporations to the general legislative power with an offer to abandon the defence when one unequivocal authority shall be produced by the plaintiffs to shew that the exercise, of such power by, the legislature of Great-Britain was ever adjudged illegal. The plaintiffs however choose not to rest the validity of these acts upon general legislative power, but say, that whatever right the parliament of Great-Britain or the pro- vincial assemblies before our revolution might have had, to have passed the acts in question, that our legislature now has not that power by the provisions of our constitution ; and therefore in the third place — III. They are contrary to Ute constitutions of New-Hamp- shire, and of the United States. Asfounder and visitor of eleemosynary corporations where no visitor is expressly appointed, our legislature succeeds to all the rights of the crown; " and" (says Judge Spencer) *• while acting within the pale of the United States and state constitutions has all the omnipotence of parliament (40). "When the people (says chief justice Kent) create a single entire government, they grant at once all the powers of sovereignty. The powers granted are indefinite and in- capable of enumeration. Every thing is granted that is not expressly reserved in the constitutional charter(41). Most r if not all the restrictions upon legislative power in our constitutions originated from the previous exercise or abuse of the power having been attended wi'h evil — And if we look at our constitutions, advised by the precepts of the (33) 1 Hutch. Hist. 159- (39) 9 Johns. Rep. 127. (40) 7 Johns. Rep. 492. (41) 9 Johns Rep- 574, SUPERIOR COURT, NEW-HAMPSHIRE. 1JH learned commentator, for Ihe interpretation of statutes, " by considering the reason and spirit of them, or the caust which moved the legislature to enact them, 7 ' (42) we shall not find by the existence of any evils resulting from this pow- er, cause for any restriction upon it by the framers of the con- stitution. Whatever might have been the complaints of cor- porations erected for private emolument, of encroachments upon their rights, ihere was no pretence that parliament should not have jurisdiction and controul over publick institutions, and that the same power should not continue in our legisla- ture. There might have been reason why security should have been provided for the rights of individuals in corporations of a private nature. In those corporations where the members as such have personal privileges and interests — and no ob- jection could exist against rendering them perpetual where the individual alone and not the publick was concerned. — But our fathers did not come to the work of framing our con- stitution with sorrow or regret that the sacred oracles of God had been rescued from darkness by the abolition of the mo- nasteries. They did not come to that work with a wish that the obsolete systems of science and theology, which the ancient colleges were the last to abandon, should again be imposed upon the community at the pleasure of those in- stitutions. They approached the task with a belief upon which they acted, that those interests and institutions in which the publick were most concerned would always find sufficient protection in the wisdom and integrity of that de- partmentof government to whom the publick weal is conlided. ft was therefore they confided to the legislature the power and made it their duly " to assemble for the redress of pub lick grievances and for making such laws as the publick L'ood may require. "(43) And from time to time to make, ordain, and establish all manner of wholesome and reasonable orders, (12) I. nik Cum. 01 , t.i; N li Const. :. 100 DARTMOUTH COLLEGE VS. WOODWARD. laws, statutes, ordinances and directions, either with penal ties or without(44)." That it could not have been intended by the framers of the constitution to restrict the legislative power upon this subject we think is apparent from the nature of the institu- tion and its intimate connexion with government — as al- so from the general provisions of the constitution itself It is a proper subject of legislation, as a publick civil in- stitution. But the plaintiffs have insisted that " it is a pri- vate eleemosynary corporation," and that statement is at- tempted to be supported, in the first place, by confounding this institution with " Moor's Indian charity school" which Dr. E. Wheelock claimed as his, and over which no other jurisdiction has been exercised but at his request. Now no fact on record is more clearly stated, than that this institution and Moor's Indian charity school were entirely distinct ami independent of each other in their origin and establishment ; were ever governed separately, without the least connexion, until the school solicited the interference of the legislature and college. Their funds and property are now distinct and separate. For proof of this we need no more time than is necessary to read the record of a vote passed by the plaintiffs May 7, 1T89 — as follows: "Representations having been made to this board, that apprehensions have arisen in the minds of some persons, that monies collected in Great Britain by the Rev. Messrs. Whitaker and Occum for the use of Moor's charity school under the direction of the Rev. Dr. Wheelock, have been applied by this board to the use and benefit of Dartmouth College ; — resolved, that this board have never had any controul or direction of said monies, nor have they to their knowledge, at any time received or ap- plied any sum or sums thereof to the use and benefit of said college, &c. A letter of instruction to Dr.Wheelock from the honourable board of trust of that school in England, April 25, (44) Ibid. 7. SUPERIOR COURT, NEW-HAMPSHIRE. 181 1771, states that " the corporation of Dartmouth College in its nature and designs differs from the establishment of their school" and forbids Dr. Wheelock from subjecting the school or its funds to the disposition of that institution. Therefore we will not trouble ourselves here to settle what kind of es tablishment Moor's school may be, or from whom it derived its funds, since that is not this institution. The source whence this institution has derived its support is of a nature so publick that no difficulty occurs in pointing to it. Among the publick grants for its establishment and support, was that of the township of Landaff, containing twenty-four thousand acres of land January 19, 17 TO, long before the board was organized under the charier ; also a tract of three hundred acres in Hanover, the same upon which the build- ings are located. — In the same charter was made a grant of two hundred acres adjoining to Dr. E. Wheelock's, in consideration of his services and expences to aid the insti- tution — services and expences it would have seamed unne- cessary for the government \o remunerate, if they were de- voted as the plaintiffs must pretend, to his private use and property. The legislature in 1773, made a donation of '2000 dollars, and in 1?87, granted a lottery to raise dollars in aid of its funds , — in 1789, a tract of 42,000 acres of land— in 1805, 900 dollars— and in 1807, a tract of 23,000 acres of land ; and from the state of Vermont in 1785, was received a grant of land containing 11,500 acres. That this is a private charity has been urged too from the circumstance of its being called a college — That although universities are publick civil corporations in England and throughout Europe, jet that colleges are there consider- ed eleemosynary institutions. 1 do not understand the coun- sel to deny I hat universities are publick civil corporations — a principle indeed well established by all miters upon the »nb ject(4o). (45) 1 Blk.Coui. 471 — ■: liin. Civ. I,* iij. I ;6. 182 DARTMOUTH COLLEGE VS. WOODWARD. What are called colleges in the universities in Europe ; and by which from the resemblance in name, the learned counsel have attempted to prove this to be a private chari- ty, are mere conditional appropriations of funds for the sup- port of persons of certain descriptions called the masters, fellows and students, subject to the inspection and controul of the individual who makes the appropriation ; and have no more power of conferring degrees, or of doing any other act which a university may do, than our parishes have, which are incorporated for the support of ministers. Al- though this institution is called by the name of college, still, says the authority before referred to, the design of the in- stitution must determine the extent of its political rights. — And whether the act creating the corporation was a publick or private act or charter in its terms, could make no differ- ence as it is the extent of the object which makes the cor- poration a publick one (46). What then must have been the plaintiffs' desperation to have seized as the great point, on which to build so mighty an argument, the circumstances of this institution being call- ed a college, while it differs in fact from a college in every particular of its design, privileges and powers. By predi- cating their argument upon the technical definition of a col- lege establishment, do they intend to deny, that this institu- tion was erected for the purposes, with the privileges and powers, and subject to the liabilities of an English universi- ty ? This corporation, was erected for the promotion of learning — Its officers (says the chapter, p. 11) may exercise their authority " as fully and freely as any like officers in any of our universities, colleges or seminaries of learning in our realm of Great-Britain, lawfully may or ought to do." It also ha-; the power of conferring " any such degree or de- grees" &c. " as are usually granted in either of the univer- sities or any other college in our realm of Great Britain,'"' (46) Bac. Ch. Us.— 2 Atk. 87—10 Co. Rep.101. Bac. Abr. Stat. SUPERIOR COURT, NEW-HAMPSHIRE 183 &c. That this corporation has other objects and duties than mere colleges, which, (says a learned civilian) " were form- erly held to be ecclesiastical establishments,"(47) is per- fectly apparent from its own proceedings. The same shew that it has never doubted to use the privileges of a universi- ty. — " The power or faculty of teaching these [the sciences and professions] were bestowed by the state to the seminary, by the seminary to the individual, and hence in process of time, these branches of learning came to be called faculties, and the criterion or essential difference of an university was the power and licence of teaching the four faculties, the sup- posed compass of universal knowledge" — (48) the trustees of this institution have not only exercised the powers of a uni- versity, but have used and even preferred that name as the most appropriate until by some strange coincidence it be- came obnoxious at the moment it became the legitimate title by the act of the legislature — "Whereas the duties of presi- dent of this university"' — is the record of their memorable vote of Nov. 1814 ; which being very important in its con- sequences was undoubtedly prepared with all the precision and accuracy of the honourable board. By that name were they almost invariably styled in their official acts, their me- morials, records, catalogues, &c — That their practice in this respect was correct, and that the term college and uni- versity are now frequently used for each other, appears by the same authority before cited, — where it is observed that " even independent of the special words of its charter, Dublin is properly a university, so is Glasgow, though con- sisting of but one collcge"(49). " One of the most distin- guishing features of modern universities is the power of con- ferring degrees" (60). As the nut lire ol this institution, so its object and intimate connexion with government require their care and controul- (47) 2 Bro. Civ. Law 156. f4S) '2 I'.ro. Civ. Law. 152. H'J) 2 Uro. Civ. Law 15*— J not* 'jiiS ibid. 1 84 DARTMOUTH COLLEGE VS. WOODWARD. And we are not left to conjecture its object— lis charter declares it to be the " spreading of christian knowledge" — and " that the best means of education may be established in our province of New-Hampshire." — Had the charter proceeded no further, hopeless as might seem the effort, still the plaintiffs would have had some more plausible pretence than at present, for making a question, whether such be an object of private benefit only, or of publick interest and concern. — But the charter in the same clause has anticipated the only answer which could be given and unequivocally declares it to be "for the benefit of said province." — Is such a purpose then not within the proper sphere of legislation in a government like ours ? and have the framers of our constitution so decided ? Devest the subject of the specious garb in which the learning and in- genuity of the counsel have enveloped it, and what other is the naked question presented ? — They deny that the leg- islature has any constitutional right to interfere with the con cerns of this institution. — Its charter declares it to have been established for the purpose of "spreading christian knowledge," and " that the best means of education maybe established in the province of New-Hampshire for the bene- fit of said province." What do they then but deny the publick interest in these objects? If such a doctrine be in- troduced by the influence of this institution, then indeed if the government have not power to reform, they should have to annihilate it. — Nothing less than the solemn formality with which the plaintiffs' counsel have attempted to prove that the "diffusion of knowledge" and the "means of education" are not proper subjects of legislation, could be deemed a sufficient apology for any remarks from us upon such a sug- gestion. — The painful emotions excited by the advancement of such a doctrine in a government like ours, before a court of justice, are in some degree mitigated by the reflection, (hat only for the purpose of correcting the abuses of (he trustee?., " ■ i'iv. I..V, ■ I I l'.ik.< .in iSl. ! . •■;', J !!.-.-,. ( iv. !,;,■, ; >'')) ' 'i '••!,., k- . . ..!••, i. m -U- , <_■ .. .])')U'' lv.i.— .■; .'. x. !'. :st 190 DARTMOUTH COLLEGE VS. WOODWARD. it is not taken away, and probably will not be less likely to be exercised by an addition to the number. The general spirit of the constitution appearing to protect these legislative proceedings, we find it necesary to inquire for that particular clause in either constitution which over- rules such general construction ; — which expressly denies the exercise of this authority and entitles eight trustees of Dartmouth College, to say to the supreme power of the state " stand thou off" we are mightier " than thou." Some embarrassment might be anticipated in the attempt to designate such an article or section — An embarrassment which even the plaintiffs' counsel seem to have encountered with no great success. For instead of putting their finger upon the page, they in effect have thrown to us the statute book, and left us to discover by conjecture, or accident up- on which they most rely in the long catalogue by them cit- ed of the second, twelfth, fifteenth, twentieth, twenty-third, and thirty-seventh articles of the New-Hampshire bill of rights, and tenth section of the first article of the United States constitution. — Unfortunately, however, the difficulty of discovering their application in this rase is not entirely removed even by the ingenious argument upon this point To read at length the clauses cited, would seem to be a suf- ficient answer to a suggestion that they support or even countenance any of the plaintiffs' pretensions. The second article of the bill of rights says — " All men have certain natural, essential and inherent rights— among which are the enjoying life and liberty, acquiring, possessing and protecting property, and in a word of seeking and ob- taining happiness." What natural, essential or inherent rights the plaintiffs have lost by these acts are not yet designated, or what hon- est mode of acquiring property is debarred to them docs not appear. — We think it has been shewn that the object of thi& institution was not the private emolument of the trustees. SUPERIOR COURT, NEW-HAMPSHIRE. 191 They were agents appointed for certain purposes under the act of incorporation, who as they have justly said of them- selves in a memorial to the legislature, other than the one before referred to, are " mere stake-holders for the publick" — If the late board then, contrary to the intent of the char- ter, have contrived to create for themselves a personal inter- est and property, then it would be most conclusive, not only as to the propriety, but the necessity of legislative interfer- ence. There is no disposition wilh the defendant to fix up- on the plaintiffs the inference so fairly established by the learned counsel in the case of Nason vs. Thatcher & al. when an objection was made to the admission, as witnesses, of the trustees of the Maine Missionary society on account of interest, property being devised to the society by the will in question, and it was observed " they were mere trustees to convey the testator's bounty to the objects of the institu- tion, and to consider them personally interested was to im- pute to them the most corrupt intentions" (59). The plain- tiffs certainly are not accused while they may forbear an at- tempt to pervert this article to their purposes, or establish upon themselves the correctness of that imputation. The twelfth article, with a provision similar to the former, and that every member of the community is bound to con- tribute his personal service when necessary,or an equivalent, also provides that "no part of a man's property shall be tak- en from him, and applied to publick uses without his own consent or that of the representative body of the people. Nor are the inhabitants of this state controulable by any other laws than those to which they or their representative body have given their consent." The declaration of independence renders apparent the op- pression of the crown and government of Great Britain, in reference to which this provision waa adopted. They are there complained against for " suspending our own legisla f 59) 7 Mass. Rep. 39*. iUli DARTMOUTH COLLEGE VS. WOODWARD. lures" and for " imposing taxes on us without our consent." Have (he plaintiffs cited, this to prove by that clause which guards against appropriating private property to pub- lick uses, that publick properly may be used for private purposes ? — That what is expressly appropriated for the benefit of the province of New-Hampshire" is intended exclusively for the use of eight individuals of that and an adjoining province ? Or by that clause which guards against ihe appropriation of privaie property except by consent of the legislature, to prove that publick agents cannot be gov- erned even by the legislature? We would by no means grudge them any advantage to be derived by all legitimate inferences from this article of the bill of rights. The fifteenth article provides that " no subject shall be held to answer for any crime or offence until the same is fully and plainly, substantially and formally described to him, or be compelled to accuse or furnish evidence against himself. And every subject shall have a right to produce all proofs that may be favourable to himself; to meet wit- nesses face to face and to be fully heard in his defence by himself and counsel. And no subject shall be arrested, im- prisoned, despoiled, or deprived of his property, immuni- ties, or privileges, put out of the protection of the law, exil- ed or deprived of his life, liberty, or estate, but by the judg ment of his peers or the law of the land." When the plaintiffs' counsel turned to this article, their natural benevolence and sense of justice must have over- powered the suggestions of their professional engagement in this cause, and they could have read it to the court in no other character than as advocates of the late venerable martyr of this institution. Had we appeared to proclaim his injuries, we would have read that article of the bill of rights and the plaintiffs' memorable record of September IK 15. — But we come not, in the language of that clause. "to hold" the plaintiffs "to answer to any crime," and if SUPERIOR COURT, NEW-HAMPSHIRE. 193 otherwise, we would not violate its provisions by " compel- ling" them " to furnish evidence against themselves." Should we for a moment suppose, that the plaintiffs, per fas ant nefas, had acquired some " property or immuni- ties," for themselves in this corporation ; and should we further suppose, that they are *' deprived or despoiled" of them by the acts in question, still could it be contended that any clause in that article renders void such act ? — Would it be said (hat the exception " but by the law of the land," was a declaration that such law would be of no validity 1 Or shall we be told that the statutes enacted by our legisla- ture are not "the law of the land?" Elementary writers and courts of justice have given statutes precedence of the unwritten law ; but the reverse of that rule might be well in- sisted on by those who hold that the mill of a few individ- uals is superior to both. The latter clause of this article is a literal translation from Magna Charta, and I ask them to take an interpretation of it from no less authority than the great oracle of the English law — " Per legem terra."— "That is," (saith my lord Coke, 2 Inst. 45.) "by the com- mon law, statute law, or custom of the realm." — The histo- ry of magna charta must be too familiar to need at this time the introduction of proofs to shew that its provisions were to guard against the arbitrary proceedings of the crown and were not intended as a restraint upon parliament. — And in this state upon solemn argument it has been decided that a statute enacted by the legislature in due form, which does not conflict with any other provision of the constitution is " the law of the land" (60). — Even the plaintiffs* argument seems to admit that these acts might have been the lam had they approved of them. So far as the plainliffs are inter- ested in them it is in their character as citizens and mem- bers of the community(61), and so far they have consented by their representatives agreeably to the constitution. The (60) Mayo vs. Wilson, Che*. Co. May term, 1817 ■61 ) Vide their Mem. to Legis. ISO.*?. 2fi 194 DARTMOUTH COLLEGE VS. WOODWARD. framers of the constitution seem to have guarded with a suf- ficient precaution the law making power; and after giving the governour a negative upon the other two branches, proba- bly did not contemplate requiring the consent of the trus- tees of Dartmouth College of any such fourth power, as ne- cessary to the validity of a publick law. There is no other power in our government than the legislative and executive to give any act validity as a law. But the precedents which we have before cited of the proceedings of parliament, in such cases settle all question as to the application of this article to legislative power ; for it is to be recollected that parliament were under all the re- straint of this article which our constitution imposes ; the same being a provision of magna charta. Those precedents of course confirm the correctness of Coke's exposition, as do also the proceedings of our own legislatures with regard to highways, turnpike roads, canals, &c. Indeed upon any other construction, not a page in our statute book but is stain- ed with some unconstitutional act. The next article urged upon the court was the twentieth. This provides that " in all controversies concerning proper- ty and in all suits between two or more persons, except in cases in which it has been heretofore otherwise used and practised, the parties have aright to a trial by jury and this method of proceeding shall be held sacred, unless in cases arising on the high seas and such as relate to mariners* wages, the legislature shall think it necessary hereafter to alter it." — Surely no difficulty would have existed in judg- ing of the propriety of their appealing to that article had the counsel proceeded one step further and cited the verdict in this cause as proof of their being deprived of the privilege secured by that provison. The next in order on their list of grievances is the alleged violatiot of the twenty-third article, which declares that "re- trospective laws arc highly injurious, oppressive and unjust. SUPERIOR COURr, NEW -HAMPSHIRE 19a No such laws therefore should be made either for the decision of civil causes or for the punishment of offences. These acts invalidate no proceedings — punish no crimes done pre- vious to their date. Had they provided for the punish- ment of offences committed previous to their being passed, then indeed it would be proper to object. But such is not their operation. They only guard against the occurrence of evil in future. The legislature most unquestionably took a re- trospective view upon the operation of the laws as they then existed, in their deliberations to remedy the defects. And alarming as the idea may be in some cases of looking back upon past transactions, it is not believed that our constitu- tion forbids recurrence to history in the exercise of deliber- ation, or proscribes the wisdom of experience. In any other sense, these are no more retrospect ive than the ordina- ry alterations of tho militia and poor laws or those prescribing the mode of elections. The thirty -seventh article closes their chapter upon the New-Hampshire Bill of Rights. This declares that " In the government of this slate the three essential powers there- of, to wit, the legislative, executive and judicial ought to be kept as separate from and independent of each other as the nature of a free government will admit, or as is consistent with that chain of connexion that binds the whole fabrick of the constitution in one indissoluble bond of union." — The object of the counsel by introducing this article proba- bly was not to destroy that large portion of his argument which consisted in urging reasons for the repeal of the acts in question, but its effect surely must be to shew the irrelev- ancy of such reasons when addressed to a tribunal whose duties are " to be kepi separate" from the exercise of le- gislative power. Such have been their references to our bill of rights, that the plaintiffs' counsel must pardon me for sometimes sus- pecting them of an intention to burlesque their client's pre- 4 ~"tions in this canst*. 196 DARTMOUTH COLLEGE VS. WOODWARD. The tenth section of the first article of the United States constitution cited by the plaintiffs declares among other prohibitions that " no state shall pass any bill of attainder, ex post facto law, or law impairing the obligation of con- tracts." • It cannot be necessary at this time to consider the intent or meaning of the words ex post facto law, as it has long since been determined that they refer only to crimes and punish- ments, and hare no bearings upon proceedings of a civil na- ture(62). " The restraint against making any ex post facto law, was not considered (said judge Chase) by the framers of the constitution, as extending to prohibit the depriving a citizen even of a vested right to property." But at last it is insisted that these are <( laws impairing the obligation of contracts." Finding that the straws they have seized upon in the struggle cannot support their sink- ing claim, with the eagerness of desperation, they grasp at this shadow of a pretence. Yet it is believed, that section cannot by any force be so distorted as to extend even its sha- dow to a purpose so oblique and distant from its original in- tent. If any interpretation of that clause can be made ap- plicable to the present case, all the benefits surely should be awarded to the plaintiffs' counsel as theirs* discoverers. Most unquestionably by the survivors of the convention who framed that instrument, such an idea would now be deemed original. — The nature of the causes of that provision and of course the objects to which it alone can fairly be applied, had no relation whatever in principle or operation to cases like the present. Previous to the constitution, it had been practised in dif- ferent states to pass acts suspending suits on contracts, there- by impairing the obligation of immediate payment. Dis- tinctions had been introduced where foreigners, or person* of different states were parties, &c. And cases existed of making debts, which were all due, payable by future instal- (62) 3 Dal. Rep. 396. SUPERIOR COURT, NEW-HAMPSHIRE 197 ments(63) In Locke, adrar. vs. Dane & al.(64) Ihe court say " the clause respecting the obligation of contracts as we all know was provided against paper money, instalment laws" &c. — " It would be carrying it much beyond its natural im- port, as well as its intended operation to construe it as pro- hibiting the legislature of the state to pass a law confirming the doings of the court or other publick body known to the law." But how is this corporation a contract ? Who are the parties ? How are its obligations impaired ? A contract in its common acceptation, is an agreement between two parties. The agreement presupposes a con- ference as to its terms, and a consideration for its founda- tion. There is a mutuality in its stipulations. — These are general principles(65). The term is usually applied to ne- gociations of a pecuniary nature, and is usually confined to transactions between individuals, or individuals and compa- nies. The state when conferring property or civil privileges may be a party, and though in such case an action would not lie, this proves the confidence which our fundamental laws have safely placed in the legislative power. — But when the state pass a law, the object of which, is of a publick na- ture, it is indeed difficult to understand how individuals can make it a contract in the common and constitutional meaning of that term. In a case much stronger than the present it was considered by the counsel as well as the court (66) that " the notion of a contracti>etween the government and cor- poration was too fanciful to need any observation" and the learned counsel in Livingston vs. Van Ingen spoke of such an idea as " a notion too refined to be arted upon, — that would lead to results the most extravagant and unjust. It is a doctrine too absurd to be sanctioned by a court of jus- (63) Adams vs. Story, 6 Am. Law. Jour. 17-i. — Fed. No. 44. — 1 niack. Com. Tuck. \. 31-2. (64) 9 Mass. R<-p. 3f)0. (65) 1 fjom. on Com '2.— 2 lilk C<> m 443.-5 Knsl. Ron. 116. (66) 8 Mrcss. Rpp. U« 198 DARTMOUTH COLLEGE VS. WOODWARD. tice"(67). Individuals may acquire rights and privileges under puhlick laws, without holding them by virtue or in consideration of any contract, in its usual sense. As the officers of a town or county may hold their offices under the law creating a town or county, but should the legislature double the number of those officers, it would not heretofore have been thought that the United States constitution could interfere.— That scholastick subtlety and ingenuity by which the plaintiffs would raise a contract in this transaction, would prove quite too much for their purpose, for in some sense even government itself is a contract, and by the same rea- soning every act and every law must be considered in the nature of contract, until the legislature would find themselves in such a labyrinth of contracts, with the United States constitution over their heads, that not a subject would be left within their jurisdiction. — The counsel have referred to the case of Fletcher vs. Peck(68) which is certainly very far from supporting .their doctrine in this case. It shews that a grant of land to individuals for their personal benefit, on a valuable consideration, after the conveyance had been made, the interest vested, and subsequent sales under it, could not be revoked — Also the case of New-Jersey vs. Wilson(69) that a treaty or bargain with the Indians for val- uable consideration, that certain lands should be exempt from taxation, could not be avoided. — As also the case of Terrett vs. Taylor & al.(70), and the case of Pawlet vs. Clark(71) that property appropriated for one purpose, could not, without compensation be taken and appropriated to a different use. The correctness of all which positions, we have no disposition or need to controvert. The plaintiffs however say, an express contract exists here that they, and they alone shall be trustees of this insti- (f>F) 9 John. Rep. 541. (68) 6 Crunch Rep. 87. (69) 7 Cranch Rep. 164. (70) 9 Cranch Rep. 43. (71) 9 Cranch Rep. 292. SUPERIOR COURT, NEW-HAMPSHIRE. 199 tution. And why shall not the present sheriff resist the proposed law for a new division of counties on the ground that a contract would be violated by admitting other sheriffs upon his present territory ? By a reference to the charter it will appear, that the corporation was created independent of the trustees ; and that they were afterwards appointed in a different clause of the charter. The corporation is in fact so constituted, that had they all died, or all resigned their of- fices,the corporation would still have existed, and could have been reorganized with perfect security to all its rights and property — The ! provision in the charter with regard to the number, was intended as a regulation to limit the board in their appointments,and not with a view to controul the legisla- ture. No sacredness can be attached to that mere regula- tion, established by the crown, more than to a law under similar circumstances, which, however conclusive in its terms, would yield to the rule " leges posteriores, priores contrarias, abrogant." Who are the parties to all these contracts ? can there be any other either express or implied, than the founder, the power creating the corporation and those for whose benefit it is established. As a publick institution we believe the crown has been shewn to be the founder — Or even as an eleemosynary corporation, that the rights of foundation rest in the crown from the publick endowments. The crown also was the power that created it. The state since the revolution succeeds to the rights of the crown(r2). — We have seen that not only the design and object, but the char- ter itself of the institution declares it to be "for the benefit of the province." The state of New-Hampshire then is the founder. — The state of New-Hampshire is the power creating, and the state of New-Hampshire the only party in interest. All parties to the contract then, have assented to these altera (7i) Cranch Rep. 43. 200 DARTMOUTH COLLEGE VS. WOODWARD. (ions by (he legislature, the representatives of the people and State of New-Hampshire. A.s much importance has been given to that point, by an effort to shew that this is a private institution and that an individual a* founder is party to some contract here, per- mit me a moment to direct the attention of the court to the fair result from that view of the subject. No such pretence is made for any other individual than the Rev. Eleazer Wheelock. For the purpose of giving their argument its utmost force, let us suppose their assumed premises in this particular to be correct, that this is a private institution, Dr. E. Wheelock the founder, and he a party to a contract with the state that no alteration should ever be made in any of the provisions of the charter, but by consent of the lawful visitor. " The power of visitation exists in the founder and his heirs, which power they may grant and assign over tooth- ers," &c.(73). In the last will of Dr. E. Wheelock after ap- pointing Dr. John Wheelock his successor in the office of President, is the following clause ; — " and to him I give and grant all my right, title and claim to said seminary and all the appurtenances, interests, jurisdiction, power and au- thority in and over the same belonging to me, &c. — It is well known that by virtue of this appointment, which Dr. E. Wheelock by the same charter was authorized to make, the late Dr. John Wheelock entered upon and executed the du- ties of the office of president more than thirty years. — Here then was the legalrepresentative of the person, who the plain- tiffs say was founder. And does he or his heirs complain of the legislature impairing the obligation of any contract with him, or those whose interests he represents? These very acts were passed by his solicitation and shewing to the legislature their necessity. He has accepted and holden the office of president of the institution by request of the board as organized by these acts. He has even made a bequest rrS 1 ) 2 Bro. Civ. Law 156. SUPERIOR COURr, NEW-HAMPSHIRE 201 to the corporation to be bolden on the condition of the en- forcement and continuation of these acts. — Where then are the complaints of violated contracts from any private founder ? We have chosen to consider this question upon the true ground of the publickcharacterof the inslitution,because we are unwilling to surrender it to the dictation and controu! of any individuals and not for the want of a perfect defence in this action even upon the principle of a private charity — for so far as it concerns the event of this suit, we might safely tender them an election to consider the institution the one or the other. But however the direct or express contracts may be, it is contended that these acts violate that the grant should extend only for a limited period. The legislature as the representative of the publick may discon- tinue a highway whatever right a town may have in it (BO). So the law authorizing minors and indented apprentices to enlist and receive their wages without the consent of their masters, has been decided not to impair the obligation of contracts in the sense of the constitutional). School districts which have certain corporate powers, the legislature have not only altered at their pleasure, but have even subjected them to the alterations of towns. Select- men, in whose hands money is placed by towns for the sup- port of schools, probably would not have thought, before the action, of resorting to the United States constitution for pro- tection against the legislature, should they have enacted that a committee be joined to the selectmen in the charge of such appropriations. The plaintiffs perhaps may admit that such a legislative act could be supported — but that such concerns are too unimportant to be cited to a case like the present. — May we not ask what interest the plaintiffs have in the funds of this institution, that selectmen have not in the funds of a school district ? What right or pretence have the legislature to interfere with the concerns of a school district, but upon the principle of their vital importance to the publick wel- fare ? And are those subordinate means thus important and the superior agency of this institution indifferent to the community ? While these acts of the legislature are justified by princi- ple and precedent, I rejoice also that the most distinguished literary institution of the union, by its eminence and pros- perity is a striking example of the salutary influence of (SO) 2 Mass. Rep. Hfi. r 81 ) l'l Mass. Rep. 3S9, anil Justice Story's opinion U.S. vs. 13 si n bridge, Cir. Co. Muss. May term 181ft. •206 DARTMOUTH COLLEGE VS. WOODWARJ). these principles and precedents. The renowned university of Harvard, which has ever been subject to legislative con- troul, exhibits an illustrious , proof, that the gloomy appre- hensions of the plaintiffs in the present case, are altogether imaginary. To say that such seminaries would be in dan- ger from a design in the legislature to defeat their object or effect their destruction, is to suppose an event that can nev- er take place till the whole community shall have degenerat- ed to that state of barbarism, when the light of such an insti- tution could do no more than to make "darkness visible ;" and its existence serve no other purpose than as a monument upon the ruins of all our other civil establishments. Its dangers are from a very different source. — To avert those dangers, these legislative acts have been passed. — Soon may the opposition to them be disarmed by judicial decision, and Dartmouth arise redeemed from the ruin which has been threatened by an effort to convert to private and personal interests, its publick nature and design. [Mr. Webster closed the argument by a reply on the part of the plaintiffs; but as his views of the case are more fully disclosed in his argument before the Supreme Court of the United States, it is here omitted.] Afterwards at the November term in Grafton county, present all the judges, the opinion of the court was deliver edby IMr. C. J. Richardson. This cause, which is trover ;; undry articles alleged to be the property of the plaint- :onies before the court upon a statement of facts, in h 't is agreed by the parties that the trustees of Dart- -ourh College were a body corporate duly organized under a charter bearing date December 13, 1769 ; that the sever z\ articles, mentioned in the writ, were the property of that SUPERIOR COURT, NEW-HAIVTPSHIRE . 207 body corporate, and that before the commencement of this action the said articles being in the possession of the de- fendant, he refused, although duly requested, to deliver them to the plaintiffs. Upon these facts it is clear, that judgment must be rendered for the plaintiffs, unless the facts, upon which the defendant relies, constitute a legal de- fence By an act of this slate passed June 2T, 1816, entitled " An act to amend the charter and enlarge and improve " the corporation of Dartmouth College," it is among other things enacted " that the corporation heretofore called and il known by the name of the Trustees of Dartmouth College " shall ever hereafter be called and known by the name of " the Trustees of Dartmouth University, and the whole ** number of said trustees shall be twenty-one, a majority of Ci whom shall form a quorum for the transaction of business, " and they and their successors in that capacity as hereby " constituted, shall respectively forever have, hold, use, ex- " ercise and enjoy all tiie powers, authorities, rights, piop- " erty, liberties, privileges and immunities which have hith- - DARTMOUTH COLLEGE 1(& WOODWARD. to find a satisfactory reason why the property and iaiuiiim r tics of such corporations should not stand, in this respect on the same ground with the property and immunities of in- dividuals. In deciding a case like this, where the complaint is thai corporate rights have been unconstitutionally infringed, it is the duty of the court to strip off the forms and fictions with which the policy of the law has clothed those rights, and look beyond that intangible creature of the law, the cor- poration which in form possesses them, to the individuals and to the publick, to whom in reality,thcy belong, and who alone can be injured by a violation of them. This action, therefore, though inform the complaint of the corporation, must be considered as in substance the complaint of the trus- tees themselves. The acts in question can only effect publick or private rights and interests. With regard to the rights and interests which the publick may have in this Institution no pro- vision in the constitution of this state, nor of the United States, is recollected, which can protect thera from legisla- tive interference. We have been referred to no such pro- vision in the argument. The clauses in those constitutions, upon which the plaintiffs' counsel have relied, were most manifestly, intended to protect private rights only. All pub- lick interests are proper objects of legislation ; and it is pe- culiarly the province of the legislature, to determine by what laws those interests shall be regulated. Nor is the expe- diency, or the policy of such laws, a subject for judicial de- cision. The constitution has given to the general court full power and authority to make and ordain all such laws " as " tht y may judge for the benefit and welfare of this state." Should we assume the power of declaring statutes valid or invalid , according to our opinion of their expediency, it would not be endured for a moment, but would be justly viewed by all, as a wanton usurpation, altogether repugnant SUPERIOR COURT, NEW -HA MPS HIRE. 21? to the principles of our government. Nor are these plaint- iffs competent to call in question the validity of these laws in a court of justice, on the ground that they are injurious to the publick interests. A law is only the publick will duly ex- pressed. These trustees are the servants of the publick, and the servant is not to resist the will of his master, in a matter that concerns that master alone. If these acts be injurious to the publick interests, the remedy is to be sought in their repeal, not in courts of law. But if these acts infringe private rights, protected by the constitution, whether of the trustees themselves, or of others, whose rights they, from their situation are competent to vindicate, then the plaintiffs have proper grounds, upon which to submit their validity to our decision. All private rights in this institution must belong, either to those who founded, or whose bounty has endowed it ; to the officers and students of the college ; or to the trustees. As to those who founded or who have endowed it ; no person of this description, who claims any private right, has been pointed out or is known to us. It is not understood that any person claims to be visitor of this college. An absolute donation of land or money to an institution of this kind, creates no private right in it. Besides, if the private rights of founders or donors have been infringed by these acts, it is their business to vindicate their own rights. It is no concern of these plaintiffs. When founders and donors complain, it will be our duty to hear and decide ; but we cannot adjudicate upon their rights, till they come judicially before us. It has been strenuously urged to us, in the ar- gument, that these acts will tend to discourage donations, and are therefore impolitick. Be it so. That was a con- sideration very proper to be weighed by those who made the acts, but is entitled io no weight in this decision. The officers and students of the college have, without doubt, private rights in the institution — rights which court* 2H 2 1 8 DARTMOUTH COLLEGE VS.' WOODWARD. of justice are bound to notice — rights, which, if unjustly in- fringed, even by the trustees themselves, this court upon a proper application, would feel itself bound to protect. But for any injury done to their rights,they have their own rem- edy. It would be unjust to prejudge their case on this oc- casion. They are not parties to this record, and cannot be legally heard in the discussion of this cause. If no form of action given them by law can be conceived ; it is because these acts do no injury to their rights. The real question then is, do these acts unconstitution- ally infringe any private rights of these trustees ? It is sard that these acts in fact, attempt to dissolve the old corpo- ration, to create a new one, and to transfer the property of the old corporation to the new ; and are therefore void on the principle decided in Territ & al. vs. Taylor(3). But admitting this to be the attempt, we might with great pro- priety remark, in the language of Ashurst justice, in the case of the King against Pasmore (4), that "the members of the " old body, have no injury or injustice to complain of, for " Ihey are all included in the new charter of incorporation, " and if any of them do not become members of the new in- " corporation, but refuse to accept, it is their own fault.' r But it seems to us impossible to suppose, that the legislature intended by these acts, to dissolve the old corporation or to create a new one : nor do we conceive that the addition of new members, can in any case be considered as a dissolution of a corporation. The legislature of this state have net un- frequently annexed tracts of inhabited territory to towns, and thereby added new members to the corporation. Yet who ever supposed that this was a dissolution of the old, and the creation of a new corporation ? Our statute of Dec. 11, 1812(5), makes the shares and interest of any person, in any incorporated company, liable to be seized and sold up- ffl: 9 Cranoh 43. 3 Dm-nford and East 244. (5) N- H. Laws, 184. SUPERIOR COURT, NEW-HAMPSHIRE. 21b »n execution, and gives to the purchaser all the privileges appertaining thereto ; and of course makes him a member of the corporation. But the thought probably never occurred to any man, that when a new member is added, by virtue of that act, the corporation is thereby dissolved, and a new one created. Yet that act has at least, as much dissolving, and as much creating force, as the acts now under consider- ation. The plaintiff*, in taking this ground, seem not to have ad verted to a material distinction, which, certainly exists be- tween the rights and faculties relating to corporations, which can exist only in the corporators, as natural persons, and the corporate rights and faculties, which can exist only in the corporation. The right to the beneficial interest in the corporate property, can only exist in natural persons. But the legal title and ownership in corporate property, can in no case be considered as vested in the several corporators, as natural persons, either jointly or severally, but col- lectively in all, as one body politick, made capable by the policy of the law, of holding property as an indi- vidual. This artificial individual, which is said to be immortal, holds in all cases the legal tills. Hence a corporation may maintain trespass against any of its mem- bers, who intermeddle with its property without its consent. Hence too, the legal title of a corporation in lands, will not pass by the deed of all its members. This faculty of hold- ing property as an individual, which the policy of the law vests in a body of natural persons, that can be perpetuated by known rules of law, is one of the great ends and uses of an incorporation. But the natural persons who compose this artificial, immortal individual, in which the property is vested, must, in the nature of things, be continually fluctua- ting and changing ; and yet the artificial individual remains in contemplation of law the «am<:. It is therefore clear, that the legal identity of a corporation dors not doprnd upon ifn 220 DART MOUTH COLLEGE \S. WOQDWAHD. being composed of the same natural persons, and that an ad- dition of new members to a corporation, cannot in Itself, make it a new and different corporation. The immortality of a corporation depends upon a continued accession of new mem- bers. The mode in which this accession is effected, is im- material. A few of our corporations are perpetuated by a power of electing new members, placed in the corporations themselves. But most of our publick, and all our private cor- porations, are perpetuated by mere operation of law, without any corporate act whatever. Nor, by the addition of new members, is any part of the legal title to the corporate prop- erty, transferred from the old to the new members. That title remains unaltered in the corporation. The old mem- bers had not personally any such title that could be taken from them ; and the new members have personally acquired none. The error of the plaintiffs on this subject, probably originated in their supposing that the legal title to corporate property is vested in the corporators, in the same manner that the title to partnership property is vested in co-partners. Indeed their counsel endeavored to illustrate thispoint,by comparing corpo» rate to partnership property. And if the comparison had been just, the inferences which the counsel made, would also have been just. But the comparison does not hold, unless we are entirely mistaken as to the manner in which the legal title to corporate property is vested. The addition of new mem- bers by a legislative act, even to a private corporation, does not necessarilydivest the old corporators,of any private benefi- cial interest,which they may individually have in the corporate property. Suppose the legislature should enact, that the gov- ernor should be ex-officio a member of all the banking cor- porations in the state. This might give him a personal in- fluence in the management of their concerns, but would give him no beneficial interest whatever, in the corporate prop- erty. The interest of the stock-holders would remain the same. In the case of corporations, where all the benefit de- SUPERIOR COURT, NEW-HAMPSHIRE. 221 iived from them consists in the privileges incident to mem- bership, as in incorporated library companies, it may be oth- erwise. But in the property of public k corporations, there is no private beneficial interests that can be divested. We are therefore of opinion, that these acts, if valid, do not dis- solve the old corporation, nor create a new one; nor do they operate in such manner as to change or transfer any legal title, or beneficial interest, in the corporate property, but (he legal title remains in the corporation, and the beneficial in- terest in the publick, unaffected. It has also been contended, that it depends altogether upon contract, whether the old trustees shall become mem- bers of the corporation as now organized ; that there can be no contract without consent, and that therefore, these acts cannot bind the old trustees without their consent, and must in the nature of things, be invalid. The whole amount of this argument is this: a statute, which attempts to com- pel the members of a corporation to become members of that corporation, differently organized, without their consent is invalid ; and as these acts make such an attempt, they are therefore invalid. To this there are two decisive an- swers. 1. Neither of the propositions upon which the con- clusion rests is true. 2. Admitting the premises to be cor- rect, the legitimate conclusion to be drawn from them, is wholly irrelevant to the question in this case. In the first place, the proposition that it depends altogether upon contract, whether individuals shall become members of particular corporations, is not universally true ; and so far as respects publick corporations, is never true. The le- gislature has a most unquestionable right, to compel individ- uals to become members of publick corporations. Titus when a town is incorporated, all the inhabitants become members of the corporation, and continue members so long as they reside within its limits, whether they consent or not. Nor is there 222 DARTMOUTH COLLEGE VS. WOOBWABD. any good reason to doubt that the legislature possess thft right to compel individuals to accept tbe office of trustees of Dartmouth College, however the corporation may be or- ganized, any more than there is to doubt the right of the le- gislature to compel individuals to serve as town officers, as is done by our statute of Feb. 8, 1791(6), or to be en- rolled in the militia and hazard their lives in defence of the state. It is a fundamental principle of all gov- ernments recognized in the twelfth article of our bill of rights, that a slate has a right to the personal service of its citi- zens, whenever the publick necessity requires it, — and the government has a right to judge of that necessity. There is a very strong case in 2 Modern Rep. 299. The Attorney general vs. Sir John Read. It was an information against Read,for refusing to serve as high sheriff of Hertfordshire. His defence was, thai being under sentence of excommunication,he could not receive the sacrament: and that by serving as high sheriff without receiving it, he subjected himself to a penal- ty of L.500, but the court held that he waas punishable for not removing the disability, it being in his power to get him- self absolved from the excommunication : and gave judg- ment against him. — Nor is the proposition, that these acts attempt to compel the old trustees to become members of this corporation as now organized, without their consent, true. They are left perfectly at liberty to continue mem- bers of this corporation or not, according to their own pleasure. It is enacted, that the board shall hereafter con- sist of twenty-one members ; but it is not enacted that they shall continue members of it against their consent. They had, before these acts were passed, a perfect right to resign when they pleased ; and that right is not impaired by these acts. (6) Laws 2*1. SUPERIOR COVRT, NBW-HAMPSHIRE 223 But in the second place, admitting the premises to be true, the legitimate conclusion does not bear upon the question in this case. The fair conclusion to be drawn from the premi- ses, is, that these acts, so far as they attempt to compel the old members to become members of the corporation, as now organized, are invalid. But the question here is not, wheth- er the legislature can compel the old trustees to become members of the newly organized corporation, but whether it has a constitutional right to make a new organization of the corporation, by adding new members ? And it is very apparent, that although the legislature may not possess the power to do the one, yet still it may have a constitutional right to do the other. There is a clear dis- tinction between laws binding corporate bodies, and laws at- tempting to bind individuals to continue members of corpo- rate bodies. Thus the legislature has an undoubted right, at all times, to pass laws binding the whole body politick of the state ; but it is by no means clear, that the legislature has a.t all times a right to compel individuals to remain in the Btate, and be subject to those laws. So the legislature has a right to incorporate towns ; but can it compel the inhabi- tants to remain in them, and continue members ofsuch cor- porations ? But what is such a new organization of a corporation as cannot be made, without the consent of the corporators ? If new members cannot be added, can any new duty be im- posed upon a corporation ; or can the corporate powers and faculties be in any way limited, without such consent ? Our •tatute of June 21, 1814, (laws 284) makes it the duty of the several incorporated banks, to make a return of the state of their several banks, to the governor and council, annually, in June, under a penalty of $1000. If the doctrine of these plaintiffs be true, may not the stockholders say that they can- not be compelled to be members of corporations, subject to new and different dutiea, without their consent, and lh;»t 224 DARTMOUTH COLLEGE VS. WOODWARD. therefore this act is void ? And may not the same argument he used in regard to the acts of June 11, 1803, and June If, 180T, which prohibit banks from issuing bills of a certain description ? In fact, does not this doctrine amount to a de- nial of the right to legislate at all, on the subject of corpora- tions, without their consent ? But, although an artificial individual, capable of holding the legal title to property, may be created by the policy of the law, and a kind of artificial will and judgment as to the management of its concerns, given to it by making the con- sent of a number of natural persons necessary in all its acts ; yet still this artificial will and judgment is, after all, only the private will and judgment of natural persons, in some re- spects limited and restricted. In this point of view, a cor- poration may be considered as a body of natural persons, having power and authority vested in them, to manage the corporate concerns in such manner as a majority of a com- petent number of them may judge and determine to be best calculated to answer the ends of the incorporation. And it has been truly said, by the counsel of the plaintiffs, that by the charter of 1769 exclusive power and authority was giv- en to the twelve trustees to manage the affairs of this corpo- ration in such manner as a majority of any seven or more of them, duly convened for the purpose, might judge most ex- pedient to answer the purposes of the institution ; aud that the right of the twelve, to exercise that exclusive power and authority is taken away by these acts, and others admitted to share that power and authority with them. Such is, without doubt, the operation of these acts; and it seems to us that this is the whole ground of complaint, which the plaintiffs can have. These acts compel the old trustees to sacrifice no private interest whatever, but merely to admit others to aid them, in the management of the concerns of a publick institution : and if they have no private views to ans- wer, nor private wishes to gratify, in the management of those SUPERIOR COURT, NEW-HAMPSHIRE. 225 concerns, (and it would be very uncharitable to suppose they can have, for it is extremely dishonourable to prostitute publick interest to private purposes) it is not very easy to see how this can furnish auy very solid ground of complaint. Had the affairs and concerns of Dartmouth College been their own private affairs and concerns, such an interference would have had a very different complexion. But the plaintiffs conlend that these acts impair their right to manage the affairs of this institution, in violation of that clause in the fifteenth article in our bill of rights, which declares that " no subject shall be arrested, impris- " oned, despoiled or deprived of his property, immunities, " or privileges, put out of the protection of the law, exiled " or deprived of his life, liberty or estate, but by the judg- " ment of his peers or the law of the land." That the right to manage the affairs of this college, is a privilege with- in the meaning of this clause of the bill of rights, is not to be doubted. But how a privilege can be protected from the operation of a law of the land, by a clause in the constitu- tion declaring that it shall not be taken away, but by the law of the land, is not very easily understood. This clause in our bill of rights, seems to have been taken from the 29th chapter of Magna Charta. " No freeman shall be taken or " imprisoned, or be disseized of his freehold, or liberties, or "free customs, or be out-lawed or exiled, or any otherwise " destroyed, nor will we pass upo.i him nor condemn him, but " by lawful judgment of his peers, or by the law of the land." The origin and history of Magna Charta is familiar to law- yers and politicians. Sullivan in his Lectures, 333-4, says that this chapter is the corner stone of English liberties, made in affirmance of the old common law ; and that by the bare reading of it, we may learn the extravagancies of king John's reign, which it was intended to redress. It is evident, from all the commentaries upon it by English writers, that it was in- tended to limit the powers of the crown, and not of parlia- 30 226 DARTMOUTH COLLEGE VS. WOODWARD. ment(r). Thus (he franchises of a corporation are protect- ed by this clause, in (he great charter, and cannot be taken away by the king, unless by due process of law i n his courts of justice for a forfeiture incurred. But parliament can dissolve a corporation by statute(8). The object of the clause in our bill of rights, now under consideration, seems always to have been understood in this state, to be the pro- tection of private rights, from all interference of single bran- ches of the government, and of individual magistrates, not warranted by law. Thus if the house of representatives or the senate, or the governour and council, or even a court should order an individual to be arrested, or his property to be seized in a case not warranted by the law of the land, it would be a violation of this clause in the bill of rights. — So if an individual were arrested upon the warrant of a jus- tice of the peace, the cause of which had not been previous- ly supported by oath or affirmation, this clause in the bill of rights would be violated. At this terra, in this county, we have decided, in the case of Hutchins vs. Edson, that an arrest upon an execution issuing from this court, but not under seal, which is required both by the constitution and by statute, was a violation of this clause in the bill of rights and altogether illegal and void. But all statutes, not repug- nant to any other clauses in the constitution, seem always to have been considered as " the law of the land," within the meaning of this clause. Thus, our statute of Decem- ber 24, 1799, authorizes selectmen and tythingmen, within tbeir respective precincts, to stop persons suspected of travelling unnecessarily on the Sabbath ; and if no suffi- cient excuse be given, to detain them in custody, until a tri- al can be had ; and in the case of Mayo vs. Wilson and oth- ers, Cheshire, May loir, we decided, after very mature consideration, that an individual who had been duly arrested (7) Sullivan's Lectures 383 — 408. 2 Institute 45. 4 Blackstonc's Com- iticutiiries 423. :'<;) i ISiuckstouci's Commentaries 4S5, SUPERIOR COURT, NEW- HAMPSHIRE. 227 and detained in pursuance of that statute, must be consider- ed as having been deprived of his liberty " by the law of the land." We have publick statutes, authorizing the selectmen of towns to take the lands of individuals for highways, and empowering firewards " to pull down, blow up or remove " any house or buildings," when necessary to stop the pro- gress of fire. We have private acts, giving to turnpike corporations authority to take the land of individuals for their roads. Under all these statutes, the property of indi- viduals is often taken without their consent ; and yet it seems never to have been doubted that those statutes were " the law of the land," within the meaning of the constitution. By the slatufe of December 24, 1805, en- titled, " an act respecting idle persons," judges of probate are authorized, in certain cases, to appoint guardians of idle persons, and thereby take from them all controul over both their real and personal estate. This act has beeo in our statute book nearly twelve years, as a part of " the law " of the land," and no one has ever called its validity in question. By an act of December 11, 1804(9), a part of the town of Wendell, in the county of Cheshire, is annexed to the town of jNew-London, in the county of Hillsborough, and by that act the exclusive power and au- thority of the former inhabitants of New-London, to manage their corporate concerns, is taken away in the same manner that the exclusive authority of these plaintiffs, to manage the affairs of Dartmouth College, is taken away. The same thing has frequently been done to other towns. Yet it has never been made a question in our courts, whether those acts were " the law of the land," within the meaning of this clause in the bill of rights. Indeed, if this clause is to be construed to protect private property and rights from all legislative interference, what construction is fo be given to CO 1/1".= "t. 228 BAUTMOUTH COLLEGE VS. WOODWAKIV that clause in the twelfth article in the bill of rights, which declares that "no part of a man's property shall be taken " from him, or applied to publick uses, without his own con- " sent or that of the representative body of the people?" The cases in which a man's property may be taken from him, or applied to publick uses,wilh the consent of the rep- resentative body, are not specified ; but it undoubtedly in- cludes all those not expressly protected by other clauses of the constitution. No one of the acts just mentioned, seems to afford to the individuals, whose property and privileges may be affected by them, a less solid ground of complaint than the acts in question do, to the plaintiffs. If the latter be repugnant to this clause in the constitution, so must be the former. There seems to be no substantial difference in the cases, on which a solid distinction can be founded. If we decide that these acts are not " the law of the land," because they interfere with private rights, all other acts, interfering with private rights, may, for ought we see, fall within the same principle ; and what statute does not either directly or indirectly, interfere with private rights ? The principle would probably make our whole statute book a dead letter. We cannot adopt it ; but are clearly of opinion that these acts, if not repugnant to any other constitutional provision, are " the law of the land," within the true sense of the constitution. But it is said, that the charter of 1769 is a contract, the validity of which is impaired by these acts, in violation of that clause in the tenth section of the first article of the con- stitution of the United States, which declares that " No state shall pass any law, impairing the obligation of con- tracts." It has probably never yet been decided, that a charter of this kind is a contract within the meaning of the consUtution of the United States. None of the cases cited, were like the present. In the case of Fletcher vs. Peck, (10) there was an express contract, a conveyance of lands to flO)6Cranch 87. SUPERIOR COURT, NEW-HAMPSHIRE. 229 individuals, for their own use. In the case of New-Jersey vs. Wilson (11), thepe was also an express contract, a treaty, by which lands with a particular privilege annexed to the lands themselves, were granted to individuals for their own use, and upon a valuable consideration paid. This clause, in the constitution of the United States, was obviously intended to protect private rights of property, and embraces ail contracts relating to private property, whether executed or executory, and whether between individuals, between states, or between states and individuals. The word " contracts" must however be taken, in its common and ordinary acceptation, a9 an actual agreement between parties, by which something is granted or stipulated, imme- diately for the benefit of the actual parties. But this clause was not intended to limit the power of the states, in relation to their own publick officers and servants, or to their own civil institutions, and must not be construed to embrace con- tracts, which are in their nature, mere matters of civil insti- tution ; nor grants of power and authority, by a state to in- dividuals, to be exercised for purposes merely publick. Thus, marriage is a contract; but being a mere matter of civil institution, is not within the meaning of this clause. A law, therefore, authorizing divorces, though it impairs the validity of marriage contracts, h not a violation of the con- stitution of the United Slates. Thus too many of our pe- nal statutes give a part of the penalties and forfeiHircs incui- red under them, to particular individual*, and whenever a penalty or forfeiture is incurred, such individuals have a vested right to sue for and recover such forfeitures and pen- alties. But a repeal of those acts, at any lime before an ac- tual recovery, has always been held to divest thit-" right(12). Such repeal, therefore, clearly impair* the validity of the grant ; but no one ever suppose;' (U) 7 (.'ranch ICi. \ 1656. 3 T. R. 240.— Lord Kenyon. (7) Idem 16lii, and King vs. Pasmore, ubi supra. (8) Ellis vs- Marshall, 2 Mass. Hep. 277. 1 Kyd. on corporations 65 6*. SUPREME COURT, UNITED STATES. 247 itlng the legislative power, and protecting the rights and property of the citizens. One prohibition is " that no per- son shall be deprived of his property, immunities or priv- ileges, 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 corpo- ration within the meaning of this prohibition in the bill of rights, It is said that it is a publick corporation, and pub- lick property. That the trustees have no greater interest in it, than any other individuals. That it is not private prop- erty, which they can sell, or transmit to their heirs ; and that therefore they have no interest in it. That their office is a publick trust like that of the governour, or a judge; and that they have no more concern in the property of the col- lege, than the governour 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 honours, 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 cre- ated 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, coun- ties and towns in New-England. These may be changed and modified as publick convenience may require, due re- gard being always hud to therights of property. Oi such cor porations, all who live within the limits arc of course oblig- ed to be members, and to submit \o the duties which the . I Vv'ootltk-son *:i. 1 LI"'., -ii'/. V 218 DARTMOUTH COLLEGE TS. WOODWARD. law imposes on them as such. Other civil corporations arc for the advancement of trade and business, such as banks, insurance companies, and the like. These arc created not by general law, but usually by grant. Their constitution is special. It is such as the legislature sees (it to give, and the grantees to accept. The corporation in question is not a cm7,although it is a lay corporation. It is an eleemosynary corporation. It h a. private cJwm7?/,originally founded and endowed by an individual, with a charter obtained for it at /us request, for the better adminis- tration of his charity. " The eleemosynary sort of corpo- rations, are such as are constituted for the perpetual distrilm- lions 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 pri- vate property according to the will of the donors. They are private corporations. A college is as much a private corporation, as an 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 charily is derived chiefly from the statute 43 Eliz. ch. 4. " Those purposes," says sir William Grant, " are considered charitable which that stat- ute enumerates"(l 2). Colleges are enumerated, as chari- ties m 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 con- tinue to be dispensed, after his death. This is done either i'10) 1 Klack. ATI. (U) I Vt-s. 557. (V2) ■:■'■'■ 5 -50 DARTMOUTH COLLEGE VS. WOODWARD. 1hc funds. The gift of the revenues is the foundation(lC). The leading case on this subject is Phillips vs. Bury, [re- ported in 1 Lord Raymonds. — Comb. 265. — Holt 7 15. — 1 Show. 360.— 4 Mod. 106.— Skinn. 447.] 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 Elisabeth. The controversy turned upon the power of the visitor, and in the discussion of the cause, the nature of college charters and corpora- tions was very fully considered. Lord Holt's judgment, copied from his own manuscript, is in 2 Term. Rep. 346. The following is an extract : " That we may the bet- ter apprehend the nature of a visitor, we are to consider, that there are in law two sorls of corporations aggregate ; such as are for publick government, and such as are for pri- vate charity. Those that are for the publick government of a town, city, mystery, or the like, being for publick 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 pri- vate and particular corporations for charity, founded and endowed by private persons, are subject to the private gov- ernment 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 pro- ceed according to the particular laws and constitutions as rtc.) : BiccV-. 48i SUPERIOR COURT, NEW-HAMPSHIRE. L'iil signed 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 gentle- man whom I have in my eye, in his argument of this case :i 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 behaviour of the members that partake of the charily ; for it is fit the mem- bers that are endowed, and that have the charily 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 charily, are not incorporated, but there are certain trustees who dis- pose of the charity, there is no visitor ; because the inter- est of the revenue is not vested in the poor that have the ben- efit of the charity, but they are subject to the orders and di- rections of the trustees. Rut 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 pow- er ; and it being a creatine of the founder's own, it is rea- son that he and his heirs should have (hut power, unless by the founder it is vested in some other. Now there is no manner of difference between a college and an hospital, ex- cept only in degree ; an hospital is for those that are poor, and mean, and low, and sickly : a college is fov another sort of indigent persons ; but ii hath another intent, to study in. and breed up persons in (he world, that have no otherwise to live ; but still it is as much within I he reasons as hospital- \v,(] if in at! hospital tin- rubier and poor are incorporated 252 DARTMOUTH COLLEGE VS. WOODWARD. 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 inferiour degree j 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 argu- ment 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(l7). The learned Bishop Slillingfleet'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 pub- lick government he subject to the courts of Westminster- Hall, which have no particular, or special visitors ; yet cor- porations for charity, founded and endowed by private per- sons, are subject to the rule and government of those that erect thera ; but where the persons to whom the charity is given are not incorporated, there is no such visitatorial pow- er, 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 con- sequently is no more accountable than he had been: thai the king by his charter can make a society to be incorporat ed so as to have the rights belonging to persons, as to legal Rapacities : that colleges, although founded by private per (17) 1 Lcul Hay. 9. SUPREME COURT, UNITED STATES. 253 sons, arc jet incorporated by the king's charter; but although the kings by their charter made the colleges to be such in law, thaf is, to be legal corporations, yet they left to the par- ticular 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 partak- ers of their bounty (13). These opinions received the sanc- tion of the house of lords, and they seem to be settled and undoubted law. Where there is a charter, vesting prop- er powers in trustees, or governours, they are visi- tors ; and there is no controul 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 there- fore, in those instances in which the charities were founded on charters or by act of parliament, and a visitor, or gov- ernour ond trustees appointed, must be referred to the gen- eral jurisdiction of the courts in all cases in which a trust conferred appears to have been abused, and not to an orig- inal right to direct the management of the charity, or \he conduct of the governours or trustees (19)." — " The origi- nal of all visitatorial power is the property of the donor, and the power every one has to dispose, direct and regu- late his own property; like the case of patronage; cvjus est dare, &c. Therefore, if cither the crown or the subject creates an eleemosynary foundation, and vests flu charity in the persons rvho arc to receive the benefit of it, since a 'ontest might arise about the government of if. the Utr: •' (IS)^p'- Appendix No. .3. 1 Hum'? Ecclr; Law 41.3 l'O 2 Font- '.'"- f«. 25-1 DARTMOUTH COLLEGE VS. WOODWARD. lows the founder or his heirs, or the person specially ap- pointed by him to be visitor, to determine concerning his own creature. If the charily 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 (20)." " There is nothing better established," says lord com- missioner Eyre, " than that this court does not entertain a general jurisdiction, or regulate and controul charities estab lished by charter. There the establishment is fixed and de- termined ; and the court has no power to vary it. If the governours 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 re- spects the jurisdiction of this court, it is without remedy ; but if those established as governours, have also the man- agement of the revenues, this court does assume a jurisdic- tion of necessity, so far as they are to be considered as trus- tees of the revenue(21)." " The foundations of colleges,'* says lord Mansfield, "are to be considered in two views, viz. as they are corporations and as they are eleemosynary. As eleemosynary, they are the creatures of the founder; he may delegate his pow- er, 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 po'.ver; but lie may be restrained as to particular instances. The foun- der may appoint a special visitor for a particular purpose arid no further. The founder may make a general visitor ; and yet appoint an inferiour particular power, to be execut- ed without going to the visitor in the first instance" (22). And oven it' the king be founder, if he grant a charter, iu- ' 2 ■■■ lV<>.4r2. C wven vs. Iluthcrforth, per Lord Hardwicke* ."■J I } Aifoi \u\ Central *. s. Foundling hospital- 2 Ves. Junv. 47- Vide a!?o 12 ly rl oil Cor; -vatic,.;-., 195. Cooper's Equity Pleading, 292. , -' . '. '-' ■'■'>:,-' '. -. ..'jtinbv'iijre \= To<'in'-tou 1 Burr. ~<)V. SUPREME COURT, UNITED STATES. 253 corporating trustees and governours,f/iet/ are visitors,znd the king cannot visit(23). A subsequent donation, or engrafted fellowship, falls under the same general visitatorial power, if not etherwise specially provided (*24). In New England, and perhaps throughout the United States, eleemosynory corporations have been generally es- tablished in the latter mode ; that is, by incorporating gov- ernours, or trustees, and vesting in them the right of visita- tion. Small variations may have been in some instances adopted ; as in ihe case of Harvard College, where some power of inspection is given to the overseers, but not strict- ly 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 i3 obtained, comprising them all, or some of them, and such others as they choose to include, with the right of appointing their 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 pri- vate. The case before the court is clearly that of an elee- mosynary corporation. It is, in the strictest legal sense a private charity. In King vs. St. Catherine's Hall (20), that college is called a private eleemosynary lay corpo- ration. It was endowed by a private founder, and in corporated by letters patent. And in the same manner was Dartmouth College founded and incorporated. Dr. Whcc- lock is declared by the charter to be its founder. It was es- tablished 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(26). U»* ('2,i) \ttorn -v General vs. Miildli ton, 2 Ves. ,V28. (\i-i) (jrcun vs. Kutln:i-forlli, tilii sti|>r:i. '-" .''->••' ' ''•;■• i T II . ■ ■ nlii supra. — \ id-' Appendix No '.:>) iT.in. it. ■-. ar>.i. >.i , 1)1 ,i !. ul.i %uur 256 DARTMOUTH COLLEGE VS. WOODWAUI). 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 tfaiuk 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 bo. 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 colIege(2f) 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 (28) ; and indeed of all the others. When the legislature gives to these institutions, it may and does accom- pany 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 condi- tion, or the specification of any new use, the donation fol- lows 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 publick cannot be charitable in these institutions. It is not the money of the publick, but of private persons, which is dispensed. It may be publick, that is general, in its uses and advantages ; and the state may very laudably add con- tributions of its own to the funds ; but it is still private in the tenure of the property, and in the right of administering 'he funds. (27) Vide Appendix No. 5 ftH) Vide Appendix No R. SUPREME COURT, UNITED STATES. 25f If the doctrine laid down by lord Holt, and the house of lords in Phillips vs. 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 char- ter. They were also visitors of the charity, in the most ample sense. They had therefore, as they contend, privi- leges, 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 trus- tees are privileges, advantages, liberties, and immunities;" and that they shall be forever holden by them and their suc- cessors. The New-Hampshire bill of rights declares that no one shall be deprived of his " property, privileges or im- munities," 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/ranc/tises. Blackstone says that fran- chise 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 incorpo- rated and subsist as a body politick ; with a power to main- tain perpetual succession and do other corporate acts : and each individual member of such corporation is also said to have a franchise or freedom" (29). (I'i) 2 Black. Cora. 37 34 258 DARTMOUTH COLLEGE VS. WOODWARD. Liberties is the term used in magna charta as including franchises, privileges, immunities, and all the rights whicB belong to that class. Professor Sullivan says, the term sig- nifies 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" (30). The privilege, then, of being a member of a corporation, under a lawful grant, and of exercising the rights and pow- ers 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 publick, but in their own right. Each trustee has a franchise, and if he be dis- turbed 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 adrainistered,and these franchises exercised for the purpose of diffusing learning. No principle and no case establishes any such distinction. The publick may be benefitted by the use of this property. But this does not change the nature of the properly, or the rights of the owners. The objectof the charter may be publick 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 k, and the right cannot be turned to any private benefit or emolument. It is nevertheless a legal private (30) Sull. -list I.ect SUPREME COURT, UNITED STATES. 259 right, and the property of the owner, as emphatically as his freehold. The rights and privileges of trustees, visitors, or governours of incorporated colleges, stand on the same foundation. They are so considered, both by lord Holt and lord Hardwicke(31). To contend that the rights of the plaintiffs may be taken away, because they derive from them no pecuniary benefit, or private emolumenr, or because they cannot be transmit- ted to their heirs, or would uot be assets to pay their debts, is taking an extremely narrow view of the subject. Ac- cording to this notion, the case would be different, if, in the charter, they had stipulated for a commission on the dis- bursement 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 lights of money, and of visi- ble tangible property. Of what nature are all rights of suf- frage ? 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 publick ; 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 con- tend, however, that on that account the publick might take away the right or impair it. This notion appears t» be borrowed from no better source than the repudiated doc- irine of the three judges in the Aylesbury case(32). That was an action against a returning officer for refusing the (.31) Phillips vs. Hurv. — Grcr-n v-;. Ii'.it la :i forth, ubi yipra. — Vi\ H:«v WS 260 DARTMOUTH COLLEGE VS. WOODWARD. plaintiff's vote, in the election of a member of parliament. — Three of the judges of the king's bench held, that the ac- tion could not be maintained, because among other objec- tions, " it was not any mailer of profit, either in presmti, or infuturo." It would not enrich the plaintiff, in presen- ti, nor would it, infuturo, 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 re- vived. Individuals have a right to use their own property for purposes of benevolence, either towards the publick, or to- wards 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, to rescind this contract, and seize on the property, is not law, but violence. 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 publick, belongs therefore to the publick, is quite a new doctrine. It has no precedent, and is supported by no known principle. Dr. Wheelock might have answered his pur- poses, in this ca3e, by executing a private deed of trust. — He might have conveyed his property to trustees, for pre- cisely such uses as are described in this charter. Indeed it appears, that he had contemplated the establishingof his school in thatmanner, and had made his will, anddevised the property to the same persons who were afterwards appointed trustees in the charier. Many literary and other charitable institutions are founded in that manner, and the trust is renewed, and SUPREME COURT, UNITED STATES. 261 conferred on other persons, from lime to time, as occasion may require. In such a case, no lawyer would or could say that Ihe 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 1 Does or can this change the nature of the charity, and turn it into a publick political corporation ? — Happily we are not without auihori- ty on this point. It has been considered and adjudged. Lord Hardvvicke says, in so many words, " the charter of the crown cannot make a charity more or less publick, but only more permanent than it would otherwise be(03). The granting of the corporation is but making the trust perpetual, and does not after 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 pri- vate property, and to clothe it with all the security and in- violability of private property. The intent is, that there shall be a legal private ownership, and that the legal own- ers shall maintain and protect the property, for the benefit of those for whose u-se it was designed. "Who ever endow- ed the publick? Whoever appointed a legislature toad- minister his charity ? Or who ever heard, before, that a gift to a college, or hospital, or an asylum, was, in reality, noth- ing but a gift to tb.e 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 \he reasonable construc- tion of all donations to the college ? The legislature of New- Hampshire affects to represent the publick, and therefore claims a right to controul all properly destined to pubiicii •'■>') -i ^k. S7 \Hn:u'-\ Ck-riri'.-.! >". IVavcc. 262 DARTMOUTH COLLEGE VS. WOODWARD. use. What hinders Vermont from considering herself equal* \y the representative of the publick, and from resuming her grants, at her own pleasure? Her right to do so is less doubt- ful than the power of New-Hampshire to pass the laws in question. In University vs. Foy(34) the supreme court of North- Carolina pronounced unconstitutional and void, a law repeal- ing a grant to the University of North-Carolina ; although that university was originally erected and endowed by a stat- ute of the state. That case was a grant of lands, and the courtdecided that it could not be resumed. This is the grant of a power and capacity to hold lands. Where is the dif- ference of the cases, upon principle ? In Terrett vs. TayIor(35) this court decided, that a le- gislative 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 vs.Clark. The state of Vermont, by statute in 1794, granted to the respective towns in that state, certain glebe land* lying within those towns for the sole use and support of re- ligious 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 giebes to the towns, could not afterwards be repealed by the legislature, so as to di- vest the rights of the towns under the grant" (3d). It will be for the other side to shew, 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 (34) 2 Haywood's Rep. (35) 9 Crancli 43. (36) 1) Crunch 292. SUPREME COURT, UNITED STATE3. 263 sach a doctrine, to shew 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 shew, what are and what are not, such uses as to give the legislature this power of re- sumption and revocation. And to furnish an answer to the cases cited, it will be for there further to shew, 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 shew, that the trustees possessed vested liberties, privileges, and immunities, un- der this charter 4 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 superintendance 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 learn- ed 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 cer- tain actions ; or to possess certain things ; according to the law of the land(37). If such be the true nature of the plaintiffs' interests under this charter, what are the articles in the New-Hamp- shire 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 prop- erty. The plaintiffs had a legal property in this charter ; and they had acquired property under it. The acts de- prive them of both. They impair and take away 1he char- ter ; and they appropriate the property to now 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. >') 3 Dal. .19-j 264 DARTMOUTH COLLEGE VS. WOODWAHli. They infringe the twentieth article. By that article it is declared, that in questions of property, there is a right to trial. The plaintiffs arc divested, without trial or judg- ment. They infringe the twenty-third article. It is therein declared, that no retrospective laws shall bepassed. 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 de- cided on the construction of this very article, in the circuit court for the first circuit. The learned judge of that cir- cuit, says, " every statute which takes away, or impairs, vest- ed rights, acquired under existing laws, must be deemed retrospective" (38). That all such laws are retrospective, was decided also in the case of Dash vs. Van Kleek(39) where a most learned judge quotes this article from the con- stitution of New-Hampshire, with manifest approbation, as a plain and clear expression of those fundamental and unal- terable principles of justice, which must lie at the founda- tion 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. IS ova constilutio futuris formam imponere debet, et non preeter His (40). The maxim in Brac- ton, was probably taken from the civil law, for we find in that system the same principle, that the lawgiver cannot alter his mind to the prejudice of a vested right. Nemo po- test mutar e concilium suum in alter ius injuriam (41). This (38) 2 Gal. 10.3. Society vs. Wheeler. (;>*)) 7 Johnson's Rep. 477. (■','.) liiiicton Lib. 4. fol. 2'28. 2nd Inst. 292. \U) t)i:! :ct Juiii Civ. vol. '2. 54." 3.5 266 DARTMOUTH COLLEGE VS. WOODWARD. cr : private rights have been better understood and more ex- alted in public k 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 pow- ers 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 de- clares that no one shall be "deprived of his property, immu- nities or privileges, but by the judgment of his peers or the law of the land." Notwithstanding the light in which the learn- ed judges in New-Hampshire viewed the rights of the plaint- iffs under the charter, and which has been before adverted to, it is found to be admitted in their opinian,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 SUPREME COURT, UNITED STATES. 267 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 " 'privileging within the meaning of the article, the argument is not answered, and the article is in- fringed by the acts. Are then these acts of the legislature, which affect only particular persons and their particular priv- ileges, 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 superiour to or concern* ing 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 trea- son, 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 "(46). Lord Coke is equally decisive and em- phatic. Citing and commenting on the celebrated 29th chap, of Magna Charta, he says, " no man shall be disseiz- ed, &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, J by the due course and process of law(Al). Have the plaintiffs lost their franchises by " due course anil process of law V On the contrary, are not these acts, " particu- lar acts of the legislature, which have no relation to the rom- munity in general, and which arc rather sentences than laws?'' By the law of the land, is most clearly intended, the gen- eral law ; a law, w r hich hears before it condemns; which proceeds upon enquiry, ami renders judgment only after trial. The meaning is, (hat every citizen shall hold his life, liberty, properly, and immunities under the protection of (4f.) I Mack. Com. 44; (47) Coke 2 In V, 2(>8 DARTMOUTH COLLEGE VS, WOODWARU. 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 at- tainde , bills of pains and penalties, acts of confiscation, acts reversing judgments,and acts directly transferring one man's esfale to another, legislative judgments, decrees, and forfeit- ures 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 for men to live under. The administration of justice would be an empty form, an idle ceremony. Judges would sit to execute legis- lative 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 corpora- tion, generally, and in the aggregate, but that each individu- al trustee has also his own individual franchise in such right of election and appointment, is according to the lan- guage of all the authorities. Lord Holt says, " it is agree- able 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 enjoy- ed by them in their private capacity. Where the privilege SUPREME COURT, UNITED STATES. -69 of election is used by particular persons, it is a particular right, vested in every particular man" (48). It is also to be considered, that the president and profes- sors of this college have rights to be affected by these acts. Their interest is similar to that of fellows in the Eng- lish colleges ; because they»derive their living, wholly f>r in part, from the founder's bounty. The president is one of the trustees, or corporators. The professors are not neces- sarily 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 hwefreeholds in their offices ; subject only to be removed, by the trustees, as their legal visitors, for good cause. All the authorities speak of fel- lowships in colleges as freeholds, notwithstanding the fellows may be liable to be suspended or removed, for misbehaviour, 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 legis- lature, 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 offi- ces 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 advan- tages of professional and publick employments, audio de vote themselves to science and literature, and the instruc- tion of youth, in the quiet retreats of academic life. — 2f0 DARTMOUTH COLLEGE VS. WdODWAW). 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 governours, but by acts of (he 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 II. to overturn the law, and the rights of his subjects, none was esteemed more arbitrary or tyrannical, than his attack on Magdalen College, Oxford : A i, yet, that attempt was nothing but to put out one presi- dent and put in another. The president of that college ac- cording 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 nomina- tion ; 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 cornprehensive import. The fellows were commanded to admit the person mentioned in the mandate, " any statute, custom or constitution to the contrary notwithstanding, wherewith we arc graciously pleased to dispense, in this behalf" The fellows refused obedience to this mandate, and Dr. Hough, a man of inde- pendence and character, was chosen president by the fel- loes, 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 ac- cordingly ; and Parker, a creature suited to the times put in his place. And because the president, who was rightful- ly and legally elected, mould not deliver the keys, the doors were broken open. " The nation as well as the Universi- SUPREME COURT, UNITED STATES. 271 iy," says Bishop Burnet, [Hist, of his own times, Vol. 3. p. 119.] looked on all these proceedings with just indig- nation. It was thought an open piece of robbery and bur- glary, when men, authorised by no legal commissioji, camt and forcibly turned men out of their possession and free- hold." 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 de- cisive. " The president, and all the fellows," says he, " ex- cept tno, who complied, were expelled the college ; and Parker was put in possession of the office. This act of vio- lence 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 stat- utes which regard private property, could not legally be infringed by that prerogative. Yet,in this instance,it appear- ed that even these were not now secure from invasion. The privileges of a college are attacked ; men are illegally dispos» •jessed 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 retracted, to avert the im- pending 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 inter- ference witli private property. Yet private property was no otherwise attacked, than as a person was appointed to ad- minister 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 minori ty a majority. To gainst the state forever. It is admitted, that the state, by its courts of law can en force 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 answer- able to the law of the land, for their conduct in the trust com- mitted 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 pro cess of law, to have forfeited them. It can make no difference, whether the legislature exer cise the power it has assumed, by removing the trustees and '19) Vide » full account of this case it) slate trials. 4 F.dn. 4 Vol. pas;e 2fr?. SUPREME COURT, UNITED STATES. 273 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 es- sentially 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 mem- bers 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 their rignt 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 publick, in no way diminishes their legal estate in the prop- erty, or their title to the franchise. There i3 no principle, nor any case, which declares that a gift to such a corpora- tion, is a gift to the publick. 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 10th section of the 1st arti- cle 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 obligatiou of contracts." The object of these most important provisions in the na- tional constitution has often been discussed, both here and 274 DARTMOUTH COLLEGE .VS. WOODWARD. elsewhere. It is exhibited with great clearness and force by one of the distinguished persons who framed that instru- ment. " Bills of attainder, ex post facto laws, and laws im- pairing the obligation of contracts, are contrary to the first principles of the social compact, and to every principle of ■ountl legislation. The two former, are expressly prohibit- ed by the declarations prefixed to some of the state consti- tutions, 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 bul- wark in favour of personal security and private rights ; and I am much deceived, if they have not, in so doing, as faith- fully consulted the genuine sentiments, as the undoubted in- terests of their constituents. The sober people of America, are weary of the fluctuating policy which has directed the publick councils. They have seen with regret, and with indignation, that sudden changes, and legislative interferen- ces 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 in- terference is but the link of a long chain of repetitions ; ev- ery subsequent interference being naturally produced by the effects of the preceding" (50). It has already been decided in this court, that a grant it 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 Fletcher vs. Peck(51) this court says, " a contract is a compact between two or more parries, and is either executory or executed. An executory contract i» one in which a party binds himself to do, or not to do, a par- ticular thing ; such was the law under which the convey- (50) 44th No. of the Fed. by Mr. Madisoa- (51) 6Cranch.fr. SUPREME COURT, UNITED STATES. 276 ance was mfede 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 con* tract 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 fan* construction of the con- stitution, 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 be- tween 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, notfrom 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 ap- prehension, 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 deter- mination to shield themselves, and I heir 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 Slates contains what may be' deemed a bill of rights, for the people of each slate." It has also been decided, that a grant by a state before the revolution, is as much to be protected as a grant since(jl) I* ut the case of Terrett v<. Taylor, before < ited, is of all M >.: New Jfrvy vs. 'W ■'■ •• ( ,«r: u !•'* •276 DARTMOUTH COLLEGE VS. WOODWARD. others most pertinent to the present argument. Indeed the judgment of the court in that case seems to leave little to be ar- gued 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 annex- ed to the creation of every such corporation. Upon a change of government, too, it may be admitted that such ex- clusive privileges attached to a private coporation as are inconsistent with the new government, may be abolished. In respect, also, to publick corporations which exist only for publick purposes, such as counties, towns, cities, &c. the legislature may, ur.der 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 legisla- ture 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 prop- erty 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 princi- ples of natural justice, upon the fundamental laws of every tree government, upon the spirit and letter of the constitu- tion 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 legisla- ture 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 with- out the consent of the corporators. If, therefore it has been shewn that this college is to be regarded as a private charity. SUPREME COURT, UNITED STATES. 277 this case is embraced within (he very terms of that decision. A grant of corporate powers and privileges is as much a con- tract 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 vs. vice chancellor of Cambridge, (52) lord Mansfield says, " there is a vast deal of difference be- tween a new charter granted to a new corporation (who must take it as it is given ;) and a new charter given to a corpo- ration already in being, and acting either under a former charter, or under prescriptive usage. The latter, a corpo- ration 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 if, 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 Wiluiot says, "It is the concurrence and accept- ance of the university that gives the force to the charter of the crown." In the King vs. Passmore,(53) lord Kenyon observes : " some things are clear ; when a corporation ex- ists capable of discharging its functions, the crown cannot obtrude another charter upon them ; they may either ac- cept or reject it" (54). In all cases relative to charters, the acceptance of them is uniformly alleged in the pleadings. This shews the general understanding of the law, that they are grants, or contracts ; and that parties are necessary to give them force and valid- ity. In King vs. Dr. Askew,(55) 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, " accepl- (52) 3 Burr. 1C5G. (53) 3 Term. Rep. 240. (54) Vide also I KydonfJor. 05. '>">) \ Buit 2'20M. 378 DARTMOUTH COLLfiGE VS. \V0ODWA1lD. ance" and " assent," are the very language of contract. lit Ellis vs. Marshall (56) it was expressly adjudged that the naming of the defendant among others, in an act of incorpor- ation 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 in- dividual, seems to be a principle too clear, to require the support of authorities." But Justice Buller, in King vs. Passmore, furnishes if possible a still more direct and explic- it 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 privi- leges which are bestowed, to exert themselves for the good government of the place." This language applies, with pe- culiar 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 fouader en- dowed it with his property. And because charters of incorporation are of the nature of contracts, they cannot be altered or varied but by con- sent 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 vs. Miller,(57) lord Kenyon says ; " Where a corporation takes its rise from the king's charter, the king by granting, and the cor- poration by accepting another charter, may alter it, because (5f>) 2 Mass. Rep. 2fi9. (i. ) 6 Term. Hep. 277, SUPREME COURT, UNITED STATES. "279 U is done with the consent of all the parties who are compe- tent to consent to the alteration" (58). There are, in this case, all the essential constituent parts of a contract. There is something to be contract- ed 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 considera- tions 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 desig- nated 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 maimer 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 bis associates for the same purposes, such grant could not be rescinded. And is there any difference in le- gal contemplation, between a grant of corporate franchises, and a grant of tangible property? No such difference is re- cognized in any decided case, nor does it exist in the com- mon apprehension of mankind. It is therefore contended, that this case falls within the true meaning of this provision of the constitution, as ex- pounded 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 (he acts in question impair this contract, has already been sufticiently shewn 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 "II"! Y;d*u'*. * Hro« ti. «.)t hVr, Go.' li\ >>i.'i\ litJ^i* ^hmtl. 4 280 DARTMOUTH COLLEGE VS. WOODWARD. learned judges, who delivered that opinion, have viewed this question in a very different light, from that in which the plaintiffs have endeavoured to exhibit it. After some gen- eral remarks, they assume that this college is a publick cor- poration; and on this basis their judgment rests. Wheth- er 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 bet- ter to execute a trust, which he had already created ; wheth- er he and his associates did not become visitors,by the char- ter ; 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. v It is admitted in that opinion, that if it be a private cor- poration, 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 be- long? And the plaintiffs have endeavoured to satisfy the court, that according to the well settled principles, and uniform de- cisions of law, they are private eleemosynary corporations. Much has heretofore been said on the necessity of ad- mitting such a power in the legislature as has been assumed in this case. Many cases of possible evil have been imagin- ed, which might otherwise be without remedy. Abuses, it is contended, might arise in the management of such institu- tions, 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 de- fend 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 •iroundless, and therefore the whole argument fails. Ex- SUPREME COURT, UNITED STATES. 281 perience has not taught us that there is danger of great evils or of great inconvenience from this source. Hitherto, nei- ther 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 viola- tions of trust, jn 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. TPhey 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 limes. Dartmouth college was established under a charter granted by the provincial gov- ernment ; but a better constitution for a college, or one more adapted to the condition of things under the present iiovernment, 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 senlimen's, of wiser pro- visions, drawn with more care, or in abetter 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 boun- ty of the legislature ; not a mock elevation to the character of a university, without the solid benefit of a shilling's dona- tion to sustain the character ; not the swelling and empty authority of establishing institutes and other colleges. This .'37 282 DARTMOUTH COLLEGE VS. WOODWARD; 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 should be experienced from the restrictions imposed on the legislature by the con- stitution, 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 occa- sional inconvenience from the want of power, in order that there might be a settled limit to its exercise, and a perma- nent security against its abuse. They have imposed prohi- bitions and restraints ; and they have not rendered these alto- gether vain and nugatory by conferring the power of dispen- sation. 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 jjossamus, volumus tamcn de p6Enitudine potestatis." The case before the court is not of ordinary importance, nor of every day occurrence. It affects not this college on- ly, 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 inviola- bility 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 SUPREME COURT, UNITED STATES. 28ii 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 cer- tainty of effecting the object of their bounty ; and learned men will be deterred from devoting themselves to the ser- vice 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 contention of politicks. Party and faction will be cherished in the places consecrat- ed 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, unconsti- tutional and void, the legislature had the candour and the wisdom to repeal the law. This example, so honourable 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 councils, cauiicus legislation, and regard to law, will not fail to adept a course, which will accord with her highest and best interest, and in no small degree ele- vate 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 s!ate court. An earnest hope was entertained that the judg- es of that court might have viewed the case in the light fa- vourable to the rights of the trustees. Thai hope has failed. St is here, that those rights are now to be maintained, or they are prostrated forever. Omnia alia perfuiria bono rum, subsidia, consilia, auxilia, jura rectderunt. Quern cnim (ilium appellem ? quern oblesler ? quern implorem ? Nisi hoc loco, nisi a pud vos, nisi per vos, judices, sulutem nostrum, quae spe exicrua extremaquc paid el, tenuerimus : nihil est pro terra quo confute ie possimus. 184 DAIITMOUTH COLLEGE VS. WOODWARJ). Mr. Holmes, for the defendant in error, argued that the prohibition in the constitution of the United States, which could alone give the court jurisdiction in this case, did not extend to grants of political power, — to contracts concerning the internal government and police of a sovereign state. Nor does it extend to contracts which relate merely to matters of civil institution, even of a private nature.— Thus marriage is a contract, and a private contract ; but re- lating merely to a matter of civil institution, which every so- ciety has an inherent right to regulate as its own wisdom may dictate, it cannot be considered as within the spirit of this prohibitory clause. Divorces unquestionably impair the obligation of the nuptial contract; they change the re- lations of the marriage state without the consent of both the parties, and this comes clearly within the letter of the pro- hibition. But surely no one will contend that there is lock- ed up in this mystical clause of the constitution, a prohibi- tion to the states to grant divorces, — a power peculiarly ap- propriate to domestick legislation, and which has been exer- cised in every age and nation where civilization has produc- ed that corruption of manners, which unfortunately requires this remedy. Still less can a contract concerning a publick office to be exercised, or duty to be performed, be included within this prohibition. The convention who framed the constitution, did not intend to interfere in the exercise of the political powers reserved to the state governments. That was left to be regulated by their own local laws and consti- tutions ; with this exception only, that the union should guarantee to each state a republican form of government, and defend it against domestick insurrection and rebellion. Be- yond this, the authorities of the union have no right to in- terfere in the exercise of the powers reserved to the states. They are sovereign and independent in their sphere. If, for example, the legislature of a particular state should attempt to deprive the judges of its courts (who, by the state consti- SUPREME COURT, UNITED STATES. 285 iution hold their places during good behaviour) of (heir offi- ces without a trial by impeachment ; or should arbitrarily* and capriciously increase the number of the judges so as to give the preponderancy in judicature to the prevailing polit- ical faction, would it be pretended that the minority could resist such a law on the ground of its impairing the obliga- tion of a contract ? Must not the remedy if any where exist- ing, be found in the interposition of some state authority to enforce the provisions of the state constitution ? The edu- cation of youth, and the encouragement of the arts and sci- ences, is one of the most important objects of civil govern- ment^). By our constitution, it is left exclusively to the states, with the exception of copy rights and patents. It was in the exercise of this duly of government that this charter was originally granted to Dartmouth college. Even when first granted under the colonial government it was sub- ject to the notorious authority of the British parliament over all charters containing grants of political power. It might have been revoked or modified by act of parliamcnt(2). The revolution which separated the colony from the parent country, dissolved all connection between this corporation and the crown of Great Britain. Bat it did not destroy that supreme authority which every political society has over its publick institutions. That still remained, and was transfer- red to the people of New-Hampshire. They have not re- linquished it to the government of the United States, or to any department of that government. Neither does the con- stitution of New-Hampshire confirm the charter of Dart mouth college, so as to give it the immutability of the fundu mental law. On the contrary the constitution of the statr admonishes the legislature of the duty of encouraging sci- ence and literature, and thus seems to suppose its power ol conlroul over the scientifick and literary institutions of Ihr. •tate. The legislature therefore has a ricjlit to modify this (I) Vattcl L. I. c. 11. s. 112. I!- (-) 1 L51ac. Com. 48 i. 286 DARTMOUTH COLLEGE VS. WOODWARD. trust, (he original object of which was the education of the Indian and English youth of the province. It is not neces- sary to contend that it had the right of wholly diverting the fund from the original object of its pious and benevolent founders. Still it must be insisted that a regal grant, with ft regal and colonial policy, necessarily became subject to the modification of a republican legislature, whose right and whose duty it was to adapt the education of the youth of the country to the change in its political institutions. It is a corollary from the right of self government. The ordinary remedies which are furnished in the court for a misuser of the corporate franchises, are not adapted to the great exi- gencies of a revolution in government. They presuppose a permanently established order of things, and are intended only to correct occasional deviations and minor mischiefs. — But neither a reformation in religion, nor a revolution in gov- ernment can be accomplished or confirmed by a writ of quo warranto or mandamus. We do not say that the corpora- tion has forfeited its charter for misuser ; but that it has be- come unfit for use by change of circumstances. Nor does the lapse of time from 1776 (o 1816 infer an acquiescence on the part of the legislature, or a renunciation of its right to abolish or reform an institution, which being of a publick nature, cannot hold its privileges by prescription. Our ar- gument is, that it is, at all times, liable to be new modelled by the legislative wisdom instructed by the lights of the age. The conclusion then is, that this charter is not such a CGniract as is contemplated by the constitution of the Unit- ed Statec ; that it is not a contract of a private nature con- c vnins; property or other private interests : but that it, is a giant of a publick nature, for publick purposes relative to the interna! government and police of the state, and there- fore liabie 1o be revoked or modified by the supreme power of the stale. SUPREME COURT, UNITED STATES. 237 Supposing however, Ibis to be a contract such as was meant to be included in the constitutional prohibition, is its obligation impaired by these acts of the legislature of New- Hampshire ? The title of the acts of the 27th June, and the 18th De- cember 1816, shews the legislative will and intention was to amend the charter, and enlarge and improve the corpora- tion. If by a technical fiction the grant of the charier can be considered as a contract between the king (or the state) and the corporators, the obligation of that contract is not im- paired ; but is rather enforced, by these acts, which con- tinue the same corporation, for the same objects, under a new name. It is well settled that a mere change of the name of a corporation will not affect its identity. An ad- dition to the number of colleges, the creation of new fellow- fchips, or an increase to the number of the trustees, do not impair the franchises of the corporate body. Nor is the franchise of any individual corporator impaired. In the words of Mr. Justice Ashurst, in the case of the King vs. Passmore,(3) " the members of the old body have no injury or injustice to complain of, for they are all included in the new charter of incorporation, and if any of them do not he- come members of the new incorporation, but refuse to ac- cept, it is their own fault." What rights which are secur- ed by this alleged contract are invaded by the acts of the legislature ? — Is it the right of properly, or of privileges ? It is not the former, because the corporate body is not de- prived of the least portion of its property. If it be the per- sonal privileges of the corporators that are attacked, these must be either a common and universal privilege, such as the right of suffrage, for the interrupting the exercise of which ait action would lie ; or they must be monopolies and exclusive privileges, which are always subject to be regulated or mod- ified by the supreme power of (lie state. Where a private 1 ) :, Term Ke|i. ->M 288 DARTMOUTH COLLEGE VS. WOODWARD proprietary interest is coupled with the exercise of political power or a publick trust, the charters of corporations have frequently been amended by legislative authority(4). In charters creating artificial persons for purposes exclusively private, and not interfering with the common rights of the citizens, it may be admitted that the legislature cannot inter- fere to amend without the consent of thegrantees. The grant of such a charter might perhaps be considered as analogous to a contract between the state and private individuals affect- ing their private rights, and might thus be regarded as within the spirit of the constitutional prohibition. But this charter is merely a mode of exercising one of the great powers of civ- il government. Its amendment or even repeal can no more be considered as the breach of a contract than the amend- ment or repeal of any other law. Such repeal or amend- ment is an ordinary act of publick legislation, and not an act impairing the obligation of a contract between the govern- ment and private citizens, under which personal immunities or proprietary interests are vested in them. (4) Gray vs. Portland Bank, 3 Mass. Rep. 364. — The Commonwealth vs> Bird, 12 Mass. Rep. 443. Mr. Wirt, the Attorney General, on the same side, stat- ed that the only question before the court was, whether the several acts of the legislature of New-Hampshire mentioned in the special verdict, are repugnant to that clause in the constitution of the United States, which provides that " no state shall pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts." Besides its intrinsic difficulty, the extreme delicacy of this question is evinced by the sentiment expressed by the court whenever it has been called to act on such a ques- tion(l). In the case of Calder et ux. vs. Bull et ux(2). (1) Calder et ux. vs. Bull et ux. 3 Ball 392. 394. 395-— Fletcher vs. Peck, 6 Oaneh 8". — New-Jersey vs. Wilson, 7 Crunch 104 — Terret vs. Taylor n 9 Cranch 43. (2) Dall. 395. SUPREME COURT, UNITED STATES. 231> Mr. Justice Chase expressed himself with his usual emphaf ick energy, and said "I will not decide any law to be void, but in a very clear case." Is it, a very clear case that these acts of New-Hampshire are repugnant to the constitu- tion of the United States ? 1. Are they bills of attainder ? The elementary writers inform us that an attainder is " the stain or corruption(3) of the blood of a criminal capitally condemned." True it is that the Chief Justice says, in Fletcher vs. Peck(4) that a bill of attainder may afl'ect the life of an individual, or may confiscate his estate, or both. But the cause did not turn upon this point, and the chief justice waa not called upon to weigh with critical accuracy his expressions in this part of the case. In England, most certainly, the first idea presented is that of corruption of blood, and consequent forfeiture of the entire property of (he criminal as the regular and inevitable consequences of a capital conviction at common law. Statutes sometimes par- don the attainder and merely forfeit the estate. But the forfeiture is always complete and entire. In 1he present case, however, it cannot be pretended that any part of the estate of the trustees is forfeited, and if a pari, certainly not the whole. 2. Are these acts, laws impairing the obligation of con tracts ? The mischiefs actually existing at the time the constitu- tion was eslablished, and which were intended to be rem- edied by this prohibitory clause, will shew the nature of contracts contemplated by its authors. It was the inviola- bility of private contract and private rights acquired under them which was intended to be protected ;(.">) and not con- tracts which are in their nature matters of civil police, nor to grants by a state, of power and even property to individ- uals in trust to be administered for purposes merely publicl*. ( ;) <; i',uk.r, )T11 . 5S'>. ( \) •', Crunch 138. I'i I .!. No. -Si -1 Tu-Jcrj" Ular.Com.mnl. Appr. 51V? 290 DARTMOUTH COLLEGE VS. WOODWARD " The prohibitions not to make any thing but gold and silver coin a tender in payment of debts, and not to pass any law impairing the obligation of contracts," says Mr. Justice Chase " were intended to secure private rights" (6). The cases determined in this court illustrate the same construc- tion of this clause of the constitution. Fletcher vs. Pock. was a case where a state legislature attempted to revoke its grant so as to divest a beneficial estate in lands, and vested estate, — an actual conveyance to individuals as their private property (7). In the case of New- Jersey vs. Wilson, there was an express contract contained in a publick treaty of ces- sion with the Indians, by which the privilege of perpetual exemption from taxation was indelibly impressed upon the lands, and could not be taken away without a violation of the publick faith, solemnly pledged (8). Terrett vs. Taylor was also a case of an attempt to divest an interest in lands actual- ly vested under an act amounting to a contract (9). In all these instances the property was held by the grantees, and those to whom they had conveyed, beneficially, and under the sanction of contracts in the ordinary and popular significa- tion of that term — But this is an attempt to extend its obvi- ous and natural meaning, and to appty it by a species of le- gal fiction to a class of cases which have always been sup- posed to be within the controul of the sovereign power. Charters to publick corporations,, for purposes of publick policy, are necessarily subject to the legislative discretion, which may revoke or modify them as the continually fluctuat- ing exigencies of the society may require. Incorporations for the purposes of education, and other literary objects, in one age, or under one form of government, may become unfit for the office in another age, or under another government. This charter is said to be a contract between Dr. Whee lock and the king ; a contract founded on a donation of pri (C) Calder ct ux. vs. Bull et ux. 3 Dall. 390. (7) Cranch 87 (8) 7 Crunch 1C4. (9) 9 Craaeh 43. SUPREME COURT, UNITED STATES. '29 1 ■sate property by Dr. Wheelock, it is hence inferred that it is a private eleemosynary corporation ; and the right of visitation is said to be in the fouwler and his heirs: and that the state can have no right to interfere, because it is neither the founder of this charity, nor a contributor to it. But if the basis of this argument is removed, what becomes of the superstructure ? The fact that Dr. Wheelock was a con- tributor is not found by the special verdict : — and not having been such in truth it cannot be added under the agreement to amend the special verdict. The jury find the charter, and that does not recite that the college was a private foundation by Dr. Wheelock. On the contrary, the real state of the case is, that he was the projector; that he had a school on his own plantation for the education of Indians ; and, through the assistance of others, had been employed for several years clothing, maintaining, and ed- ucating them. — He solicited contributions, and appointed others to solicit. At the foundation of the college, the in- stitution was removed from his estate. The honours paid to him by the charter were the reward of past services, and of the boldness as well as piety of the project. The etatc has been a contributor of funds, and this fact is found. li is therefore not a private charity, but a publick institu- tion ; subject to be modified, altered, and regulated by the supreme power of the stale. This charter is not a contract within the true intent of the constitution. The acts of New-Hampshire, varying in s*>me degree the forms of the charter, do not impair the ob- ligation of a contract. In a case which is really a case of contract, there is no difficulty in ascertaining who are the contracting parties. But here they cannot be fixed. Dr. Wheelock can only be said to be a party on the ground of his contributing funds, and thus being the founder and visitor. Thai ground being lcmoved, he ceases lo be a party to the contract *292 DARTMOUTH COLLEGE VS. WOODWARD. Are the other contributors alluded to in the charter and enumerated by Belknap in his History of New-Hampshire, are they contracting parties ? They are not before the court; and even if they were, with whom did thejg contract ? With the king of Great Britain ? lie too is notibefore the court ; and has declared, by his chancellor, in Ihel.case of the At- torney General vs. The City of Londoi*mat he has no longer any connection with these corporarjpufifiin America. Has the state of New-Hampshire taken hisjfiiraft? Neither is that state before the court, nor can it be^afcj^aMparty orig- inally defendant. — But suppose this to be a tCc ofl.tr act be- tween the trustees and the people of New-IIamritehire. A contract is always for the benefit and advantage*of some person. This contract cannot be for the benefit, of the trustees. It is for the use of the people. The cestui que use is always the contracting party : the trustee haSjiiolh- ing to do vvith stipulating the terms. The people then grant powers for their own use. It is a contract with them- selves ! But if the trustees are parties on one side, what do they give, and what do they receive ; they give their time and labour. Every society has a right to the services of its members in places of publick trust and duty. A town ap- points, under the authority of the state, an overseer of the poor, or of the highways. He gives, reluctantly, his la- bour and services ; he receives nothing in return but the privilege of giving his labour and services. Such appoint- ments to offices of publick trust, have never been considered as contracts which the sovereign authority was not compe- tent to rescind or modify. There can be no contract in which the party does not receive some personal, private, conditional benefit. To make this charter a contract, (here must be a private beneficial interest vested in the party in the present case. The right of appointing the president and professors of the college, and of establishing ordinances SUPREME COURT, UNITED STATES. 295 for its government. Sec. But to make these rights an inter- est which will constitute the end and object of a contract, the exercise of these rights must be for the private individu- al advantage of the trustees. Here however, so far from that being the fact, it is solely for the advantage of the pub- lick ; for the interest of piety and learning. It was upon these principles, that lord Kenyon determined in the case of Weller vs. Foundling Hospital, (10)that the governours and members of the corporation were competent witnesses, be- cause they were mere trustees of a publick charity, and had no private personal interest. It is not meant to deny that mere right, — a franchise, — or incorporeal hereditament, may be the subject of a con- tract. But it must always be a direct, individual, beneficial interest to the party who takes that right. The rights of municipal corporators are of this nature. The right of suf- frage there belongs beneficially to the individual elector, and is to be exercised for his own exclusive advantage. It is in relation to these town corporations, that lord Kenyon speaks, when he says that the king cannot force a new char- ter upon them(ll). This principle is established for the benefit of all the corporator?. It is accompanied by anoth- er principle, without which i! could never have been adopt- ed, — the power of proposing amendments at the desire of those for whose benefit the charter was granted. These two principles work together for the good of the whole. By the one, these municipal corporations are saved from the tyran- ny of tin* crown, and by the other they are preserved from the infinite perpetuity of inveterate errors. But in the pres- ent ease (here is no similar qualification of the immutability <)f (lie charter which is contended for on the oilier side. But in trulli, neither the original principle, nor it.-, qualification applies to this ease ; for there is here no such beneficial in- terest and individual property, as are* enjoyed by town cor- porators*. In) (', X-\ S. I'..- >' ! ':. 294 DARTMOUTH COLLEGE VS. WOODWARD. 3. But even admitting it to be a case of contract, its ob- ligation is not impaired by these legislative acts. What vested right has been divested? None ! — The former trus- tees are continued. It is true that new trustees are added but this affords no reasonable ground of complaint. The privileges of the house of lords in England are not impaired by the introduction of new members. The old corporation is not abolished, for the foundation as now regulated, is sub- stantially the same. It is identical in all its essential con- stituent parts, and all its former rights are preserved and confirmed (12). The change of name does not change its original rights and franchises (13). By the revolution, which separated this country from the British empire, all the powers of the British government devolved on the States. The legislature of New-Hamp- shire then became clothed with all the powers of both the king and parliament over these pub!ick institutions. On whom then did the title to the property of this college fall ? If before the revolution it was beneficially vested in any private individuals or corporate body, I do not contend that the revolution divested it and gave it to the state. But it was not before vested beneficially in the trustees. The use unquestionably belonged to the people of New-Hampshire, who were the cestui que trust. The legal estate was in- deed vested in the trustees before the revolution by virtue of the royal charter of 17G9. But that charter was des troyed by the revolution, and the legal estate of course fell upon those, who held the equitable estate ; upon the peo- ple. If those who were trustees carried on the duties of the trust after the revolution, it must have been subject to the power of the people. If it be said that the state gave its implied assent to the terms of the old charter, then it must be subject to all the terms on which it was granted ; and among these, to tiie oath of allegiance to the king. But (12J 3 Burr. 10f.f>. * (13) 1 Swmd 341. n. t. Lutrell'scase — 1 Co Rep. 8* SUPREME COURT, UN1TKD STATES 295 if, to avoid this concession, it be said that the charter must have been so far modified as to adapt it to the character of the new government, and to the change in our civil institu- tions, that is precisely what we contend for. These civil institutions must be modified and adapted to the mutations- of society and manners. They belong to the people, — are established for their benefit, — and ought to be subject to their authority. Mr. Mopkinson, in reply. — I shall confine myself to the proper business of a reply, and think that I may even spare myself the trouble of a detailed and minute answer to all the arguments and observations which have been presented on the other side. If the argument for the defendant in eiror is unsound, it is radically unsound. The error lies deep. It is not in the inference but in the premises. It is not, that the course of observations which has been adopted by Mr. Attorney General and his learned colleague has sometimes deviated from the settled and deep-worn channels of the law. There is, as I imagine error at the fountain. The whole argument proceeds on an assumption which is not warranted, and cannot be maintained. The corporation created by this charter is called a jntblick corporation. Its members are said to be publick officers, and agents of gov- ernment. They were officers of the king, it is said, before the revolution, and they are officers of the state since. But upon what authority is all this taken? What is the acknowl- edged principle which decides thus of this corporation? Where are the cases in which such a doctrine has ever prevailed? No case, no book of authority, has been, or can be cited to this purpose. There is said to be no royal road to geometry, but here would seem to be a royal road of log- ick and of argument, for the defendant taking at once for gran- ted, every thins that is disputed, makes his progress to the 296 DARTMOUTH COLLEGE VS. WOODWARD. end of his case, without the least possible obstruction. Ev- ery writer on the law of corporations, all the cases in law and equity, instruct us that colleges are regarded in law, as private eleemosynary corporations, especially colleges found- ed, as (his was by a private founder. If this settled princi- ple be not overthrown there is no foundation for the defen- dant's argument. } We contend that this charter is a contract between the 1 government and the members of the corporation created by i it. It is a contract, because it is a grant of valuable rights and privileges ; and every grant implies a contract not to resume the thing granted. Publick offices are not created by contract or by charter. They are provided for by general laws. Judges and magistrates do not hold their of- fices under charters. These offices are created by publick laws for publick political purposes, and filled by appointments made in the exercise of political power. There is nothing like this in the origin of the powers of the plaintiffs. Nor is there in their duties any more than in their origin, any thing which likens them to publick political agents. Their du- ties are such as they themselves have chosen to assume, in relation to a fund created by private benefaction, for chari- table uses. These duties relate to the instruction of youth but instructors of youth are not publick officers. The ar- gument on the other side, if it proves any thing, will prove that professors, masters, preceptors and tutors are all politi- cal persons and publick officers ; and that all education is necessarily and exclusively the business of the state. The confutation of such an argument lies in staling it. The trus- tees of this college perform no duties, and have no responsi- bility in any way connected with the civil government of the state. They derive no compensation, for their services from the publick treasury. They are the gratuitous admin- istrators of a private bounty ; the trustees of a literary es- tablishment standing in contemplation of law, on the same SUPREME COURT, UNITED STATES. 297 foundation ag hospitals, and other charities. It is true, that a college in a popular sense,is a publick institution, because its uses are publick, and its benefits may be enjoyed by all who choose to enjoy them. But in a legal and technical sense they are not publick institutions, but private charities. Corporations may therefore be very well said to be for pub- lick use, of which the property and privileges are yet pri- vate. Indeed there may be supposed to be an ultimate ref- erence to the publick good, in granting all charters of incor^ poration ; but this does not change (he property from pri- vate to publick. If the property of this corporation be pub- lick property, that is, property belonging to the state, when did it become so? It was once private property, when was it surrendered to the publick ? The object in obtaining the charter, was not surely, to transfer the property to the pub- lick, but to secure it forever in the hands of those with whom the original owners saw fit to entrust it. Whence, then, that right of ownership and controul over this property, which the legislature of New-Hampshire has undertaken to exercise? The idea that this is a publick corporation was taken in the court below. The decision in that court was founded upon it. Il relied on here, and yet all the reasoning, and every decided case refutes the error. The distinction be- tween publick, political, or civil corporations, and corporations for the distribution of private charity, is fully explained, and broadly marked, in the cases which have been cited, and to which no answer has been given. The hospital of Pennsylvania is quite as much a publick corporation as this college. It has great funds, most wisely and beneficently administered. Is it to be supposed that the legislature might rightfully lay its hands on this institution, violate its charter and direct its funds to any purpose which its pleas- ure might prescribe 7 The property of this college was pri- vate property before thr rharter : and the charter ha? 39 29& DARTMOUTH COLLEGE VS. WOODWATU). wrought no change in the nature or title of this property- The school had existed as a charily school, for years before the charter was granted. During this time it was manifest- ly a private charity. The case cited from Alkyns shews that a charter does not make a charity more publick, but on- ly more permanent. Before he accepted the charter, the founder of this college possessed an absolute right to the property with which it was endowed, and also the right flowing from that of administering and applying it to the pur- poses of the charity by him established. By taking the charter he assented that the right to the property, and the power of administering it, should go to the corporation of which he and others were members. The beneficial pur- pose to which the property was to be used, was the consid- eration on the part of the government for granting the char- ter. The perpetuity which it was calculated to give to the charity, was the founder's inducement to solicit it. By this charter the publick faith is solemnly pledged, that the arrangement thus made shall be perpetual. In considera- tion, that the founder would devote his property to the pur- poses beneficial to the publick, the government has solemn- ly covenanted with him to secure the administration of that property in the hands of trustees appointed in the charter. And yet the argument now is, that because he so devoted his property to uses beneficial to the publick, the government may for that reason, assume the controul of it, and take it out of those hands to which it was confided by the charter. In other words because the founder has strictly performed the contract on his part, the government on its part, is at liberty to violate it. This argument is equally sound in morality and in law. The founder proposed to appropriate his property and to render his services upon condition of re- ceiving a charter which should secure to him and his asso- ciates certain privileges and immunities. He undertook ihe discharge of certain duties, in consideration of obtaining SUPREME COURT, UNITED STATES. 2S8 oertain rights. There are rights aad duties on both sides. On the part of the founder, there is the duty of appropriat- ing the property, and of rendering the services imposed on him by the charter, and the right of having secured to him and his associates, the administration of the charity, ac- cording to the terms of the charter, forever. On the part of the government there is the duty of maintaining and pro- tecting all the rights and privileges conferred by the charter and the right of insisting on the compliance of the trustees with the obligations undertaken by them, and of enforcing that compliance by all due and regular means. There is a plain, manifest, reasonable stipulation, mixed up of rights and duties which cannot be separated but by the hand of injus- tice and violence. Yet the attempt now is to break the mu- tuality of this stipulation ; to hold the founder's property, and yet take away that which was given him as the considera- tion upon which he parted with his property. The charter was a grant of valuable powers and privileges. The state now claims the right of revoking this grant without restor- ing the consideration which it received for making the grant. Such a pretence may suit sovereign power. It may suc- ceed where the authority of the legislature is limited by no rule, and bounded only by its will. It may prevail in those systems in which injustice is not always unlawful, and where neither the fundamental constitution of the government sets any limits to power, nor any just sentiment or moral feeling affords a practical restraint against a power which in its the- ory is unlimited. But it cannot prevail in the United States where power is restrained by constitutional barriers, and where no legislature i3, even in theory, invested with all sov- ereign powers. Suppose ])r. AVhcelock had chosen to establish, and per- petuate this charity by his la:'!>ed their duti'*-'. (.'mild SOO DARTMOUTH COLLEGE VS. WOODWARD. the legislature of New-Hampshire have broken in upon this gift ; changed its parties ; assumed the appointment of the truslfes; abolished its stipulations and regulations or impos- ed others ? This will hardly be pretended even in this bold and hardy argument — and why not ? Because the gift, with all its restrictions and provisions, would be under the gener- al and implied protection of the law. Uow is it in our case ? Why, m addition to the general and implied protection af- forded to all rights and all property, it has an express, spe- citick, covenanted assurance of protection and inviolability, given on goudand sufficient considerations in the usual man- ner of contracts between individuals. There can be no doubt, that in consideration of law a char- ter, such as this, i3 a contract. It takes effect only with the assent of those to whom it is granted. Laws enjoin du- ties, without or against the will of those who are to perform them. But the duties of the trustees under this charter are binding upon them only because they have accepted the charter and assented to its terms. But taking this to be a contract, the argument of the de- fendant is, that it is not such a contract, as the constitution of the United States protects. But why not? The consti- tution speaks of contracts, and ought to include all contracts for property or valuable privileges. There is no distinction or discrimination made by the constitution itself, which will exclude this case from its protection. The decisions which have already been made in this court are a complete answer to the defendant's argument. Terrell vs. Tat/lor meets and refutes all this reasoning. The Attorney Genera! has insisted that Dr. Wheelock was not the founder of this college ; that other donors have bet- ter title to that character; and that therefore the plaintiff's argument, so far as it rests on the supposed fact of Dr. Wheelock's being founder fails. The first answer to this, is, \hat the charter itself declares Dr. Wheelock to be founder, SUPREME COURT, UNITED STATES. 301 in express terms. It also recites facts, which would shew him to be founder, and on which the law would invest him with that character, if the charter itself had not declared him so. But if all this were otherwise, it would not help the de- fendant's argument. The foundation was still private, and whether Dr. Wheelock, or lord Dartmouth, or any other person possessed the greatest share of merit in establishing the college, the result is the same, so far as it bears on the present question. Whoever was founder, the visitatorial pow- er was assigned to the trustees, by the charter ; and it there- fore is of no importance whether the founder was one indi- vidual or another. It is narrowing the ground of our ar- gument to suppose that we rest it on the particular fact of Dr. Wheelock's being founder ; although that fact is fully established by the charter itself. Our argument is, that this is a private corporation ; that the founder of the charity, before the charter, had a right of visiting and governing it — a right growing out of the property of the endowment ; that by the charter this visitatorial power is vested in the trustees, as assignees of the founder; and that it is a privilege, right, and immunity, originally springing from property, and which the law regards and protects, as much as it regards and protects property and privileges of any other descrip- tion. By the charter all proper powers of government are given to the trustees and this makes them visitors, and trom the time of the acceptance of the charter no visitatorial pow- er remained in the founder or his heirs. This is the clear doctrine of the case of Green vs. Rutherforth, which has been cited, and which is supported by all the oilier cases. Indeed we need not stop here in the argument. We might go farther, and contend, that if there were no private founder, the trustees would possess the visitatorial power. \\ here there are charters,vesting the usual and proper powers of gov- ernment in the trustees, they thereby become the visitors, and the founder retains no \ -sitatorial power, although that 302 DARTMOUTH COLLEGE VS. WOOTHVAIH). founder be the king(l). Even then if this college had originated with the government, and had been founded by it ; still, if the government had given a charter to trustees and conferred on them the powers of visitation, and controul, which this charter contains, it would by no means follow that the government, might revoke the grant, merely be- cause it had itself established the institution. Such would not be the legal consequence. If the grant be of privileges and immunities, which are to be esteemed objects of value, it cannot be revoked. But this case is much stronger than that. Nothing is plainer, than that Dr. Wheelock, from the recitals of this charter, was the founder of this institution. It is true, that others contributed ; but it is to be remem- bered, that they contributed to Dr. Wheelock, and to the funds while under his private administration and controul, and before the idea of a charter had been suggested. These contributions were obtained, on his solicitation, and confided to his trust. The history of the college evinces his zeal, perseverance and ability ; and it is not the kindest return which might be made for his laudable and useful exertions, thus to deny to his name and character the merit which be- longs te them. If we have satisfied the court that this charter must be regarded as a contract, and such a contract as is protected by the constitution of the United States, it will hardly be seri- ously denied that the acts of the legislature of New-Hampshire impair this contract. They impair the rights of the corpo- ration as an aggregate body, and the rights and privileges of individual members. New duties are imposed on the cor- poration ; the funds are directed to new purposes ; a con- trolling power over all the proceedings of the trustees is vested in a board of overseers unknown to the charter. Nine uew trustees are added to the original number in direct hos- tility with the provision of the charter. There are radical (l) 2 "Ves. Senr. 528. and 1. Ves- 78. SUPREME COURT, UNITED STATES. 303 and es&ential alterations, which go to alter the whole or- ganization and frame of the corporation. If we are right in the view, which we have taken of this case, the result is — That before, and at the time of the granting of this charter, Ur. Wheelock bad a legal interest in the funds, with which the institution was founded : That he made a contract with the then existing government of the state, in relation to that interest, by which he devoted to uses beneficial to the pubiick the funds which he had col- lected in consideration of the stipulations and covenants, on the part of the government, contained in the charter; and that these stipulations are violated, and the contract im- paired by the acts of the legislature of New-Hampshire. Some observations have been made upon our clients, by the counsel of their opponents, which, however they might have suited the meridian of some petty court of quarter sessions, must have excited, in this place, some surprise, if not disgust. — They are unworthy of the occasion ; they are unworthy of the dignity of this tribunal ; they are un- worthy of this great and momentous controversy ; they are unworthy of the counsel who have urged them upon (he cars not the attention of the court. — We have been told that the trustees of the college claim their rights under a royal char- ter ; that they cling with fond affection to this origin of their power, and disdain to hold it from a republican legislature. Nothing but kings and noblemen will satisfy them for patrons and privileges ; while the independent representatives of the freemen of New-Hampshire are contemned and reject- ed as the source of their authority. — What can we oppose to such miserable efforts to sustain violent injustice by vul- gar prejudice ; and prop up a bad cause by worse argu- ments. — Let them go — with this one remark ; that if the difference between a royal and a republican charter is, that the former is observed and maintained with a sacred and inviolable fidelity; while the other i- 1o be the sport and 304 DARTMOUTH COLLEGE VS. WOODWARD. play -thing of political interests, caprice and faction, let me have the royal charter with all its odium ; and our oppo- nents may enjoy all the pride and pleasure they can derive from the consciousness that they hold their rights from, and at the mercy of the independent representatives of the free- men of New-Hampshire. — To my sense of justice nothing could be more unexpected or unfounded, than reproach of any sort upon the trustees of the college for their conduct on this occasion ; for the stand they have made in this cause; for the generous and manly resistance they are op- posing to usurpation and injustice, whether they march to their object decorated with the sceptre and trappings of roy- alty, or would establish themselves under the guise of liber- ty and republicanism. — Heretofore men who have dared to expose themselves to the persecution of power, and to encounter the protracted trouble and expense of an arduous litigation for the maintenance of the great and fundamental prmciples of society, in which they have only a common interest with their fellow citizens, have received the grati- tude and applause of the liberal and enlightened of every time and country; and been held up as examples of patri- otism and courage. — Why shall it not be so in this case ? What interest have the trustees of the college in this ques- tion that you and I and every man that hears me has not ? What interest has the college, whose rights they defend, to be secured here, that every literary institution has not? every religious corporation ; every seminary of learning ? To-day Dartmouth College falls by the stroke of a New- Hampshire legislature ; the outrage receives the sanction of the highest and most august tribunal of our country; if this learned and honourable court, which adjudges that a charter gives no rights that are not at the pleasure of state legislatures ; and affords no protection to property in such institutions, that may not be swept away by the violence of popular faction, or the caprice of annual or semi-annual law- SUPREME COURT, UNITED STATES. 305 makers. The principle thus solemnly and deeply estab- lished, who shall say what victims will fall under its destroy- ing power; or in what order of succession they will be led to death. — Let then the trustees of this college receive the honour that is most justly their due ; the honour of submit- ting themselves to danger and trouble and expense for the Support of the justice, and the law, and the property of the country ; the honour of standing forth as the champions of learning and religion so far as they are concerned in secur- ing the rights of their chartered institutions, and the sancti- ty of their possessions. But our opponents, in their republican zeal for the des- potick and uncontroulable power of the representatives of the freemen of New-Hampshire, are too impatient for the overthrow of all our royal institutions of learning and relig- ion, to wait the gradual and uncertain movements of state legislatures ; who, perchance, may now and then have some " compunctious visitings of conscience." — They have, therefore, come forth boldly with a principle, which does all the work at a blow ; and whose extravagance can be equalled only by its pernicious and ruinous effects. — All charters ; all corporations, we are told, were dissolved by our revolution. — By severing the political connection between the United States and Great Britain, the pri- vate rights of our citizens previously acquired and sol- emnly vested, were annihilated; the property thus held, thrown open for common occupancy, or to be seized upon by the boldest adventurer. Can this court, can thia country hear such pretensions without shuddering? Shall we be called upon to curse our revolution as a great fountain of discord, violence and injustice ; instead of looking to it with reverence and gratitude ; as the means of establishing an immense empire, in which the freedom and rights of man shall be understood and mainiained ; the government of the law only acknowledged and the eternal principles of justice 40 306 DARTMOUTH COLLEGE VS. WOODWARD. secured to all. Every charter is annulled ; every corpora- tion dissolved by the revolution ! In what dream of insanity did tbis monstrous idea engender itself in the brain of these gentlemen ? What desperation would drive them to give it utterance here ; and what delirium has raised the hope that it can meet a moment's countenance from the court ? It is enough to say there is no principle of our revolution that af- fords any colour to this position ; there is no decision or sug- gestion of any tribunal in our country, legislative or judicial, that warrants it ; but that the reverse is to be found in the acts and records of every legislature and every court of the United States. Charters granted and corporations created before the revolution, have, from time to time been recogni- zed, in some way, by every state of our union ; by their courts, and by this court ; and it is not possible to give a greater shock to the good sense, the virtue and the char- acter of our country, than would be felt by the establish- ment of this most wild and pernicious pretension. After the argument the court continued the cause for ad- visement. At the February term 1819, on the second day of the term, Mr. Justice Todd being absent, the judgment of the court was pronounced by Mr. Chief Justice Marshall — This is an action of trover,brought by the Trustees of Dartmouth College against William H. Woodward, in the state court of New-Hamp- shire, for the book of records, corporate seal, and other corporate property, to which the plaintiffs allege themselves- to be entitled. , A special verdict, after setting out the rights of the par- ties, finds for the defendant, if certain acts of the legislature of New-Hampshire, passed on the 27th of June, and on the 18th of December, 1 "16, be valid, and binding on the SUPREME COURT, UNITED STATES. 307 trustees without their assent, and not repugnant to fhe con- stitution of the United States ; otherwise, it finds for the plaintiffs. The superiour court of judicature of New-Hampshire rendered a judgment upon this verdict for the defendant, which judgment has been brought before this court by writ of error. The single question now to be considered is, Do the acts, to which the verdict refers, violate the consti- tution of the United States ? This court can be insensible neither to the magnitude nor delicacy of this question. The validity of a legislative act is to be examined ; and the opinion of the highest law tri- bunal of a state is to be revised ; — an opinion, which carries with it intrinsic evidence of the diligence, of the ability, and the integrity, wilh which it was formed. On more 1han one occasion, this court has expressed the cautious circumspec- tion, with which it approaches the consideration of such questions ; and has declared, that, in no doubtful case, would it pronounce a legislative act to be contrary to the constitution. But the American people have said in the constitulion of the United States, that "No stale shall pasi " any bill of attainder, ex post facto law, or law impairing " the obligation of contracts." In the same instrument they have also said, "that the judicial power shall extend " to all cases in law and equity arising under the constitu- tion. " On the judges of this court, then, is imposed the high and solemn duty of protecting from even legislative violation those contracts, which the constitution of our coun- try has placed beyond legislative controul; and however irksome the task may be, this is a duty, frern which we dare not shrink. The title of (he plaintiffs originates in a charlc r dated the 13th day of December, in the year ITGC), incorporating twelve persons therein mentioned, by tlie name of " The Trustees of Dartmouth College." granting to them and then: #08 DARTMOUTH COLLEGE VS. WOODWARD. successors the usual corporate privileges and powers, and authorizing the trustees, who are to govern the college, to fill up all vacancies, which may be created in their own bo- dj. The defendant claims under three acts of the legislature of New-Hampshire, the most material of which was passed on the 27th of June 1816, and is entitled, " an act to amend " the charter, and enlarge, and improve the corporation of *' Dartmouth College." Among other alterations in the charter, this act increases the number of trustees to twenty- one, gives the appointment of the additional members to the executive of the state, and creates a board of overseers with power to inspect and controul the most imporlant acts of the trustees. This board consists of twenty-five persons. The president of the senate, the speaker of the house of repre- sentatives of New-Hampshire, and the governour and lieu- tenant-governour of Vermont, for the time being, are to be members ex officio. The board is to be completed by the governour and council of New-Hampshire, who are also em- powered to fill all vacancies, which may occur. The acts of the 18th and '26th of December are supplemental to that of the 2rth of June, and are principally intended to carry that act into effect. The majority of the trustees of the college have refused to accept this amended charter, and have brought this suit for the corporate property, which is in possession of a per- son holding by virtue of the acts, which have been stated. It can require no argument to prove, that the circurastan- cesofthis case conslifule a contract. An application is made to the crown for a charter to incorporate a religious and literary institution. In the application it is stated, that large contributions have been made for the object which will be conferred on the corporation, as soon as it shall be creat- ed. The charter is granted, and on its faith the property is conveyed. Surely in this transaction every ingredient of a complete and legitimate contract is to be found. SUPREME COURT, UNITED STATES. JJ09 The points for consideration are, Ut. Is this contract protected by the constitution of the United Slates ? 2d. Is it impaired by the acts, under which the defend- ant holds ? 1st. On the first point it has been argued, that the word " contract" in its broadest sense would comprehend the po- litical relations between the government and its citizens,would extend to offices held within a state for state purposes, and to many of those laws concerning civil institutions, which must change with circumstances, and be modified by ordina- ry legislation, which deeply concern the publick, and which, to preserve good government, the publick judgment must controul. That even marriage is a contract, and its obliga- tions are affected by the laws respecting divorces. That the clause in the constitution, if construed in its greatest lat- itude, would prohibit these laws. Taken in its broad unlim- ited sense, the clause would bean unprofitable and vexatious interference with the internal concerns of a stale, would un necessarily and unwisely embarrass its legislation, and rentier immutable those civil institutions, which are established for purposes of internal government, and which, lo subserve those purposes, ought to vary with varying circumstances. That as the framers of the constitution could never have intended to insert in that instrument a provision so unnecessary, so mischievous and so repugnant to its general spirit, the term " contract" must be understood in a more limited sense. That it must be understood as intended to guard against a power of at least doubtful utility, the abuse of vrhich bad been extensively fell ; and to restrain the legislature m fu- ture from violating the right to property. That anterior to the formation of the constitution, a course of legislation had prevailed in many, if not in all of the slates, which weak- ened the confidence of man in man, and cnibarassed ;.'• transactions between individual-, by dispensing with a faith 31.0 DARTMOUTH COLUBGE VS. WOODWARD- ful performance of engagements. To correct this mischief by restraining the power, which produced it, the state le- gislatures were forbidden " to pass any law impairing the "obligation of contracts," that is, of contracts respecting property, under which some individual could claim a right to something beneficial to himself; and that since the clause in the constitution must in construction receive some limita- tion, it may be confined, and ought to be confined, to case* of this description ; to cases within the mischief, it was in- tended to remedy. The general correctness of these observations cannot be controverted. That the framers of the constitution did not intend to restrain the states in the regulation of their civil institutions, adopted for internal government, and that the in- strument they have given us, is not to be so construed, may fee admitted. The provision of the constitution never has been understood to embrace other contracts, than those, which respect property, or some object of value, and confer rights, which may be asserted in a court of justice. It nev- er has been understood to restrict the general right of the le- gislature to legislate on the subject of divorces. Those acts enable some tribunal, not to impair a marriage contract, but to liberate one of the parties because it has been Inoken by the other. When any state legislature shall pass an act annulling all marriage contracts, or allowing either party t» annul it without the consent of the other, it will be time enough to enquire, whether such an act be constitutional. The parties in this case differ lesson general principles, less on the true construction of the conslitntion in the ab- stract, than on the application of those principles to this case, and on the true construction of the charter of 1769. — This is the point, on which the cause essentially depends-. If the act of incorporation be a grant of political power, if it create a civil institution to be employed in the administra- tion of the government, or if the funds of the college be pub- SUPREME COURT, UNITED STATES. 3Tf \kk property, or if (he stale of New-Hampshire, as a govern- ment, be alone interested in its transactions, the subject is one, on which the legislature of the state may act according, to its own judgment, unrestrained by any limitation of its power imposed by the constitution of the United States. But if this be a private eleemosynary institution, endowed with a capacity to take property for objects unconnected with government, whose funds are bestowed by individuals on the faith of the charter ; if the donors have stipulated for the future disposition and management of those funds in the manner prescribed by themselves ; there may be more difficulty in the case, although neither the persons, who have made these stipulations, nor those, for whose benefit they were made, should be parties to the cause. Those, who are no longer interested in the property, may yet retain such an interest in the preservation of their own arrangements, as to have a right to insist, that those arrangements shall be held sacred. Or, if they have themselves disappeared, it becomes a subject of serious and anxious inquiry, whether those, whom they have legally empowered to represent them forever, may not assert all the rights, which they pos- sessed, while in being ; whether, if they be without person- al representatives, who may feel injured by a violation of the compact, the trustees be not so completely their representatives in the eye of the law, as to stand in their place, not only as respects the government of the college, but also as respects the maintenance of the college charter. It becomes then the duty of the court most seriously to examine this charter, and to ascertain its true character. From the instrument itself, it appears, that about the year 17 5 i, the Rev. Eleazer AVheelock established at his own ex- pense, and on his own estate a charity school for the in- struction of Indians in the christian religion. The success of this institution inspired him with the design of soliciting contributions in England for carrying on, and extending, hi* Sit DARTMOUTH COLLEGE "?8i WOODWARD. undertaking. In this pious work be employed the Rev Nathaniel W hi laker, who, by virtue of a power of attorney from Dr. Wheelock, appointed the Earl of Dartmouth and others, trustees of the money, which had been, and should be, contributed ; which appointment Dr. Wheelock confirm- ed by a deed of trust authorizing the trustees to fix on a site for the college. They determined to establish the school on Connecticut river, in the western part of New-Hampshire ; that situation being supposed favourable for carrying on the original design among the Indians, and also for promoting learning among the English, and the proprietors in the neighbourhood having made large offers of land on condition that the college should there be placed. Dr. Wheelock then applied to the crown for an act of incorporation ; and represented the expediency of appointing those, whom he had by his last will named, as trustees in America, to be members of the proposed corporation. " In consideration " of the premises," " for the education and instruction of " the youth of the Indian tribes, &c." " and also of English vouth, and any others," the charter was granted, and the trustees of Dartmouth College were by that name created a body corporate, with power, for the use of the said college, to acquire real and personal property, and to pay the presi- dent, tutors, and other officers of the college such salaries as they shall allow. The charter proceeds to appoint Eleazer Wheelock, " the founder of said college," president thereof, with power by his last will to appoint a successor, who is to continue in of- fice, until disapproved by the trustees. In case of vacancy, the trustees may appoint a president, and in case of the ceasing of a president, the senior professor or tutor, being one of the trustees, shall exercise the office, until an appoint- ment shall be made. The trustees have power to appoint and displace professors, tutors and other officers, and to sup- ply any vacancies, which may be created in their own body SUPREME COURT, UNITED STATES. 313 by dealh, resignation, removal or disability ; and also to make orders, ordinances, and laws, for the government ofthe college, the same not being repugnant to the laws of Great Britain, or of New-Hampshire, and not excluding any per- son on account of his speculative sentiments in religion, or his being of a religious profession different from that of the trustees. This charter was accepted, and the property both real and personal, which had been contributed for the benefit of the college, was conveyed to, and vested in the corporate body. From this brief review of the most essential parts of the charter, it is apparent, that the funds of the college consist- ed entirely of private donations. It is perhaps not very im- portant, who were the donors. The probability is, that the Earl of Dartmouth and the other trustees in England were, in fact, the largest contributors. Yet the legal conclusion from the facts recited in the charter, would probably be, that Dr. Wheelock was the founder of the college. The origin of the institution was, undoubtedly, the Indian charity school, established by Dr. Wheelock at his own ex- pense. It was at his instance, and to enlarge this school, that contributions were solicited in England. The person soliciting these contributions was his agent ; and the trustees, who re- ceived the money, were appointed by, and acted under his, authority. It is not too much to say, that the funds were obtained by him, in trust to be applied by him to the purpo- ses of his enlarged school. The charter of incorporation was granted at his instance. The persons named by him in his last will, as the trustees of his charity school, compose a part of the corporation, and he is declared to be the found- er of the college, and its president for life. Were the en- quiry material, we should feel some hesitation in saying, that Dr. W r heelock was not, in law, to be considered as the foun- U 314 DARTMOUTH COLLEGE VS. WOODWARD. der(l) of this institution, and as possessing all the rights ap- pertaining to that character. But be this as it may, Dart- mouth college is really endowed by private individuals, who have bestowed their funds for the propagation of the christian religion among the Indians, and for the promo- tion of piety and learning generally. From these funds the salaries of the tutors are drawn ; and these salaries lessen the expense of education to the students. It is then an el- eemosynary,(2) and, as far as respects its funds, a private corporation. Do its objects stamp on it a different character ? Are the trustees and professors publick officers, invested with any portion of political power, partaking in any degree in the ad- ministration of civil government, and performing duties, which flow from the sovereign authority ? That education is an object of national concern, and a proper subject of legislation, all admit. That there may be an institution founded by government, and placed entirely under its immediate controul, the officers of which would be publick officers, amenable exclusively to government, none will deny. But is Dartmouth College such an institu- tion ? Is education altogether in the hands of government ? Does every teacher of youth become a publick officer, and do donations for the purposes of education necessarily be- come publick property, so far that the will of the legislature, not the will of the donor, becomes the law of the donation I These questions are of serious moment to society, and de- serve to be well considered. Doctor Wheelock, as the keeper of his charity school, in- structing the Indians in the art of reading, and in our holy religion ; sustaining them at his own expense, and on the vol untary contributions of the charitable, could scarcely be considered, as a publick officer, exercising any portion ot 1> 1 Plack. Comm. 481. 2) 1 Black. Coram. 471. SUPREME COURT, UNITED STATES. 315 those duties, which belong to government; nor could the legislature have supposed that his private funds, or those given by others, were subject to legislative management, be- cause they were applied to the purposes of education. When, afterwards, his school was enlarged, and the liberal contribu- tions made in England and in America enabled him to extend his cares to the education of the youth of his own country, no change was wrought in his own character, or in the na- ture of his duties. Had he employed assistant tutors with the funds contributed by others, or had the trustees in Eng- land established a school with Dr. Wheelock at its head, and paid salaries to him and his assistants, they would still have been private tutors ; and the fact, that they were em- ployed in the education of youth, could not have convert- ed them into publick officers, concerned in the administration of publick duties, or have given the legislature a right to in- terfere in the management of the fund. The trustees, in whose care that fund was placed by the contributors, would have been permitted to execute their trust uncontrouled by legislative authority. Whence, then, can be derived the idea, that Dartmouth College has become a publick institution, and its trustees publick officers, exercising powers conferred by the publick for publick objects ? Not from the source, whence its funds were drawn, for its foundation is purely private and eleemosynary. Not from the application of those funds, for money may be given for education, and the persons receiv- ing it do not l:y being employed in the education of youth, become members of thr civil government. Is it from the act of incorporation ? Let this subject be considered. A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties, which the charter of i(s creation confers upon if, either expressly, or as incidental to its very existence. These are such t\v 316 DARTMOUTH COLLEGE VS. WOODWARD are supposed best calculated to effect the object, for which it was created. Among the most important are immortality, and, if the expression may be allowed, individuality ; prop- erties, by which a perpetual succession of many persons are considered as the same, and may act as a single individual. They enable a corporation to manage its own affairs, and to hold property without the perplexing intricacies, the hazard- ous and endless necessity of perpetual conveyances for the pur- pose of transmitting it from band to hand. It is chiefly for the purpose of clothing bodies of men, in succession, wilh these qualities and capacities, that corporations were invented, and are in use. By these means, a perpetual succession of individ- uals are capable of acting for the promotion of the particular object, like one immortal being. But this being does not share in the civil government of the country, unless that be for the purpose, for which it was created. Its immortality no more confers on it political power, or a political character than immortality would confer such power or character on anatural person. It is no more a state instrument, than a natural person exercising the same powers would be. If then a natural person employed by individuals in the educa- tion of youth, or for the government of a seminary, in which youth is educated, would not become a publick officer, or be considered as a member of the civil government, how is it, that this artificial being, created by law, for the purpose of being employed by the same individuals for the same pur- poses, should become a part of the civil government of the country? Is it because its existence, its capacities, its pow- ers are given by law ? Because the government has given it the power to take and to hold property in a particular form, and for particular purposes, has the government a consequent right substantially to change that form, or to va- ry the purposes, to which the property is to be applied ? This principle has never been asserted, or recognized, and SUPREME COURT, UNITED STATES. 31 7 is supported by no authority. Can it derive aid from rea- son ? The objects for which a corporation is created, are uni- versally such, as the government wishes to promote. They are deemed beneficial to the country ; and this benefit con- stitutes the consideration, and in most cases, the sole consid- eration of the grant. In most eleemosynary institutions, the object would be difficult, perhaps unattainable, without the aid of a charter of incorporation. Charitable, or publick spirited individuals, desirous of making permanent appro- priations for charitable or other useful purposes, find it im- possible to effect their design securely, and certainly, with- out an incorporating act. They apply to the government, state their beneficent object and offer to advance the money necessary for its accomplishment, provided the government will confer on the instrument, which is to execute their de- signs, the capacity to execute them. The proposition is considered and approved. The benefit to the publick is considered as an ample compensation for the faculty it confers, and the corporation is created. If the advantages to the publick constitute a full compensation for the faculty it gives, there can be no reason fer exacting a further com- pensation by claiming a right to exercise over this artificial being, a power which changes its nature, and touches the fund, for the security and application of which it was creat- ed. There can be no reason for implying in a charter, given for a valuable consideration, a power, which is not only not expressed, but is in direct contradiction to its express stip- ulations. From the fact then, that a charter of incorporation has- been granted, nothing can be inferred, which changes the character of the institution or transfers to the government any new power over it. The character of civil institutions does not grow out of their incorporation, but out of the man- ner in which they are formed, and the objects for which 318 DARTMOUTH COLLEGE VS. WOODWARD. they are created. The right to change them, is not found- ed on their being incorporated, but on their being the instru- ments of government, created for its purposes. The same institutions, created for the same objects, though not incor- porated, would be publick institutions and, of course, be con- troulable by the legislature. The incorporating act, neither gives, nor prevents, this controul. Neither, in reason can the incorporating act change the character of a private eleemosynary institution. We are next led to the enquiry, for whose benefit the property given to Dartmouth College was secured ? The counsel for the defendant have insisted, that the beneficial interest is in the people of New-Hampshire. The charter, after reciting the preliminary measures, which had been ta- ken, and the application for an act of incorporation, proceeds thus. — " Know ye therefore, that we, considering the prem- " ises, and being willing to encourage the laudable and " charitable design of spreading christian knowledge, among " the savages of our American wilderness, and also that the " best means of education be established, in our province " of New-Hampshire, for the benefit of said province, do " of our special grace, &c." Do these expressions bestow on New-Hampshire any exclusive right to the property of the college, any exclusive interest in the labours of the pro- fessors ? Or do they merely indicate a willingness, that New-Hampshire should enjoy those advantage^, which re- sult to all from the establishment of a seminary of learning in the neighbourhood ? On this point we think it impossible to entertain a serious doubt. The words themselves, unex- plained by the context, indicate, that the " benefit intended for the province" is that, which is derived from " establish- ing the best means of education therein ;" that is, from es- tablishing in the province Dartmouth College, as constituted by the charter. But, if these words considered alone, could admit of doubt, that doubt is completely removed by an in- rnecfion of the entire instrument. SUPREME COURT, UNITED STATES. 31 f J The particular interests of New-Hampshire never enter- ed into the mind of the donors, never constituted a motive for their donation. The propagation of the christian relig- ion among the savages, and the dissemination of useful knowledge among the youth of the country, were the avow- ed and the sole objects of their contributions, in these New-Hampshire would participate ; but nothing particular or exclusive, was intended for her. Even the site of the college was selected, not for the sake of New-Hampshire, but because it was " most subservient to the great ends in view," and because liberal donations of land were offered by the proprietors, on condition, that the institution should be there established. The real advantages from the loca- tion of the college, are, perhaps, not less considerable to those on the west, than to those on the east side of Connec- ticut river. The clause which constitutes the incorporation, and expresses the objects, for which it was made, declares those objects to be the instruction of the Indians, " and also of English youth, and any others." So that the objects of the contributors, and the incorporating act were the same ; the promotion of Christianity, and of education generall\\ not the interests of New-Hampshire particularly. From this review of the charter, it appears that Dart- mouth College is an eleemosynary institution, incorporated for the purpose of perpetuating the application of the bounty of the donors to the specified objects of that bounty; that its trustees or governours, were originally named by the founder, and invested with the power of perpetuating them- selves ; that they are not publick officers, nor is it a civil in- stitution, participating in the administration of government ; but a charity school, or a seminary of education, incorporat- ed for the preservation of its property and the perpetual application of that property to the objects of its creation. Yet a question remains to be considered, of more real dif- ficulty on which more doubt has been entertained, than on 320 DAUTMOUTH COLLEGE VS. WOODWARD. all that have been discussed. The founders of the college^ at least those, whose contributions were in money, have part- ed with the property bestowed upon it, and their representa- tives have no interest in that property. The donors of land are equally without interest, so long as the corporation shall exist. Could they be found, they are unaffected by any alteration in its constitution, and probably regardless of its form, or even of its existence. The students are fluctuat- ing and no individual among our youth has a vested interest in the institution, which can be asserted in a court of justice. Neither the founders of the college, nor the youth, for whose benefit it was founded, complain of the alteration made in its charter, or think themselves injured by it. The trustees alone complain, and the trustees have no beneficial interest to be protected. Can this be such a contract, as the con- stitution intended to withdraw from the power of state legis- lation ? Contracts, the parties to which have a vested bene- ficial interest, and those only, it has been said, are the ob- jects about which the constitution is solicitous, and to which its protection is extended. The court has bestowed on this argument the most de- liberate consideration, and the result will be stated. Dr. Wheelock acting for himself, and for those, who at his solic- itation, had made contributions to his school, applied forthii charter, as the instrument which should enable him,andthem to perpetuate their beneficent intention. It was granted. — An artificial, immortal being, was created by the crown, capable of receiving and distributing forever, according to the will of the donors, the donations, which should be made to it. On this being, the contributions, which had been col- lected, were immediately bestowed. These gifts were made not indeed to make a profit for the donors or their posterity, but for something in their opinion of inestimable value ; for something which they deemed a full equivalent for the mon- ey, with which it was purchased. The consideration for SUPREME COURT, UNITED STATES. 321 which they stipulated, is the perpetual application of the fund to its object, in the mode prescribed by themselves. Their descendants may take no interest in the preservation of this consideration. But in this respect their descendants are not their representatives. They are represented by the corporation. The corporation is the assignee of their rights, stands in their place and distributes their bounty, as they would themselves have distributed it, had they been immortal. So with respect to the students, who are to de- rive learning from this source. The corporation is a trus- tee for them also. Their potential rights, which taken dis- tributively, are imperceptible, amount collectively to a most important interest. These are in the aggregate, to be ex- ercised, asserted and protected, by the corporation. They were as completely out of the donors, at the instant of their being vested in the corporation, and as incapable of being asserted by the students as at present. According to the theory of the British constitution, their parliament is omnipotent. To annul corporate rights might give a shock lo publick opinion, which that government has chosen to avoid ; but its power is not questioned. Had par- liament immediately after the emanation of this charter, and the execution of those conveyances, which followed it, an- nulled the instrument, so that the living donors would have witnessed the disappointment of their hopes, the perfidy of the transaction would have been universally acknowledged. Yet then as now, the donors would have had no interest in the property ; then, as now, those, who might be students, would have had no rights to be violated ; then as now, it might be said, that the trustees, in whom the righls of all were combined, possessed no private, individual, beneficial interest in the property confided to their protection. Yet the contract would at that time, have been deemed sacred by all. What has since occurred to strip it of its inviola- 42 °<122 DARTMOUTH COLLEGE VS. WOODWAtin. bilify ? Circumstances have not changed it. In reason, in justice, and in law, it is now what it Was in 176U. This is plainly a contract to which the donors, the trus- tees and the crown (to ivhose rights and obligations New- Hampshire succeeds) were the original parlies. It is a contract made on a valuable consideration. It is a con- tract for the security and disposition of properly. It is a contract, on the faith of which, real and personal es- tate has been conveyed to the corporation. It is then a contract within the letter of the constitution ; and within its spirit also, unless the fact, that the property is invested by the donors in trusteed for the promotion of religion and ed- ucation, for the benefit of persons, who are perpetually changing, though the objects remain the same, shall create a particular exception, taking this case out of the prohibition contained in the constitution. It is more than possible, that the preservation of rights of this description was not particularly in the view of the fram- ers of the constitution, when the clause under consideration was introduced into that instrument. It is probable, that in- terferences of more frequent recurrence, to which the tempta- tion was stronger, and of which the mischief was- more ex- tensive, constituted the great motive for imposing this re- striction on the state legislatures. But although a particu- lar, and a rare case may not, in itself, be of sufficient magni- tude to induce a rule, yet it must be governed by the rule, when established, unless some plain and strong reason for ex- cluding it can be given. It is not enough to say, that this; particular case was not in the mind of the convention, when the article was framed, nor of the American people, when it was adopted. It is necessary to go farther, and to say that, had this particular case been suggested, the language would have been so varied, as to exclude it, or it would have been made a special exception. The case being within the words of the rule, must be within its operation likewise, un SUFHEMS COURT, UNITED STATES. 323 less there be something in the literal construction so obvi- ously absurd, or mischievous, or repugnant to the general spirit of the instrument, as to justify those, who expound the constitution in making it an exception. On what safe and intelligible ground can this exceptionstand. There is no expression in the constitution, no sentiment de- livered by its contemporaneous expounders, which would justify us in making it. In the absense of all authority of this kind, is there in the nature and reason of the case itself that, which would sustain a construction of the constitution, not warranted by its words? Are contracts of this descrip- tion of a character to excite so little interest, that we must ex- clude them from the provisions of the constitution, as being it*; worthy of the attention of those, wh© -framed the instru- ment? Or does publick policy so imperiously demand their remaining exposed to legislative alteration, as to compel us, or rather permit us to say, that these words, which were in- troduced to give stability to contracts, and which in their pJain import comprehend this, must yet be so construed, ae to exclude it ? Almost all eleemosynary corporations, those which are created for the promotion of religion, of charity or of educa- tion, are of the same character. The law of this case is the U iv of all. In every literary or charitable institution, un- less the objects of the bounty be themselves incorporated, the whole legal interest is in trustees, and can be asserted o::!y by them. The donors, or claimants of the bounty, if !h< y can appear in court at all, can appear only to com- plain of the trustees. In all other situation?, they arc ident- ified with, and personated by the trustees • and their rights, .ire to be defended and maintained by them. Religion, char ify, and education, are in the law of England legatees, or donees, capable of receiving bequests, or donations in this form. They appear In court, and claim or de- fend by tin- corporation. Are I hey of so little estima- 324 DARTMOUTH COLLEGE VS. WOODWARD. tion in the United States, that contracts for their benefit must be excluded from the protection of words, which in their natural import include them ? Or do such contracts so necessarily require new modelling by the authority of the legislature, that the ordinary rules of construction must be disregarded in order to leave them exposed to legislative al- teration ? AH feel, that these objects are not deemed unimportant in the United States. The interest, which this case has ex- cited proves, that they are not. The framers of the constitu- tion did not deem them unworthy of its care and protection. They have, though in a different mode, manifested their re- spect for science, by reserving to the government of the Union the power, "to promote the progress of science and " useful arts, by securing for limited times to authors and " inventors, the exclusive right to their respective writings "and dicoveries." They have so far withdrawn science, and the useful art3, from the action of the state governments. — Why then should they be supposed so regardless of con- tracts made for the advancement of literature, as to intend to exclude them from provisions, made for the security of ordinary contracts between man and man ? No reason for making this supposition is perceived. If the insignificance of the object does not require, that we should exclude contracts respecting it from the protec- tion of the constitution ; neither, as we conceive, is the policy of leaving them subject to legislative alteration so apparent, as to require a forced construction of that instru ment in order to effect it. These eleemosynary institutions do not fill the place, which would otherwise be occupied by government, but that which would otherwise remain vacant. They are complete acquisitions to literature. They are donations to education ; donations, which any government must be disposed rather to encourage than to discounte- nance. It requires no very critical examination of the hu- SUPREME COURT, UNITED STATES. 32a man mind to enable us to determine, that one great induce- ment to these gifts is the conviction felt by the giver, that the disposition he makes of them is immutable. It is prob- able, that no man ever was, and that no man ever will be, the founder of a college, believing at the time, that an act of incor- poration constitutes no security for the institution ; believing, that it is immediately to be deemed a publick institution, whose funds are to be governed, and applied, not by the will of the donor, but by the will of the legislature. All such gifts are made in the pleasing, perhaps, delusive, hope, that the charity will flow forever in the channel, which the giv- ers have marked out for it. If every man finds in his own bosom strong evidence of the universality of this sentiment, there can be but little reason to imagine, that the framers of our constitution were strangers to it, and that, feeling the necessity and policy of giving permanence and security to contracts, of withdrawing them from the influence of legisla- tive bodies, whose fluctuating policy, and repeated interfer- ences produced the most perplexing and injifrious embarrass- ments, they still deemed it necessary to leave these con- tracts subject to those interferences. The motives for such an exception must be very powerful to justify the construc- tion, which makes if. The motives suggested at the bar grow out of the original appointment of the trustees, which is supposed to have been in a spirit hostile to the genius of our government, and the presumption, that if allowed to continue themselves, they now are, and must remain forever, what they originally were, ii ence is inferred the necessity of applying to (his corpora lion, and to other similar corporations, the correcting, and improving hand of of the legislature. It has been urged repeatedly, and certainly with a dcgiec of earnestness, which attracted attention, that the trustees deriving their power from a regal source, must, nt cessarilv partake of the spirit of their origin ; and that their firs! pn'n- 326 DARTMOUTH COLLEGE VS. WOODWAKB. ciples, unimproved by (hat resplendent light, which has been shed around them, must continue to govern the college, and to guide the students. Before we enquire into the influence which this argument ought to have on the constitutional question, it may not be amiss to examine the fact, on which it rests. The first trustees were undoubtedly named in the charter by the crown ; but at whose suggestion were they named ? By whom were they selected ? The charier in- forms us. Dr. Wheelock had represented, " that for many " weighty reasons it would be expedient, that the gentle- " men whom he had already nominated in his last will to be " trustees in America, should be of the corporation now pro- " posed." When afterwards, the trustees are named in the charter, can it be doubted, that the persons mentioned by Dr. Wheelock in his will were appointed ? Some were probably added by the crown with the approbation of Dr. Wheelock. Among these is the Dr. himself. If any oth- ers were appointed at the instance of the crown, they are the governour, three members of the council, and the speak- er cf the house of representatives of the colony of New- Hampshire. The stations filled by these persons ought to rescue them from any other imputation, than too great a de- pendence on the crown. If in the revolution, that followed, they acted under the influence of this sentiment, they must have ceased to be trustees ; if they took part with their countrymen, the imputation, which suspicion might excite, would no longer attach to them. The original trustees then, or most of them, were named by Dr. Wheelock, and those, who were added to his nomination, most probably with his approbation, were among the most eminent, and respectable individuals in New-Hampshire. The only evidence, which we possess of the character of Dr. Wheelock, is furnished by this charter. The judicious means employed for the accomplishment of bis object, and the success, which attended his endeavours,, would lead to SUPREME COURT, UNITED STATES. 32 > the opinion, that he united a sound understanding to that humanity and benevolence, which suggested his undertak- ing. It surely cannot be assumed, that his trustees were selected without judgment. With as little probability can it be assumed, that while the light of science and of liberal principles pervades the whole community, these originally benighted trustees remain in utter darkness, incapable of participating in the general improvement ; that while the human race is rapidly advancing, they are stationary. Rea- soning a priori, we should believe, that learned, and intelli- gent men selected by its patrons for the government of a literary institution, would select learned and intelligent men for their successors ; men as well fitted for the government of a college, as those, who might be chosen by other means. Should this reasoning ever prove erroneous in a particular case, publick opinion, as has been stated at the bar, would correct the institution. The mere possibility of the contra- ry would not justify a construction of the constitution, which should exclude these contracts from the protection of a provision, whose terms comprehend them. The opinion of the court after mature deliberation, is, that this is a contract, the obligation of which cannot be im- paired without violating the constitution of the United States. This opinion appears to us to be equally support- ed by reason, and by the former decisions of this court. 2d. We next proceed to the enquiry — whether its obli- gation has been impaired by those acts of the legislature of New-Hampshire, to which the special verdict refers. From the review of this charter, which has been taken, it appears, that the whole power of governing the college, of appoinling and removing tutors, of fixing their salaries, of di- recting the course of study to be pursued by the students, and of filling up vacancies created in their own body, was vested in the trustees. Oil the part of the crown it was expressly stipulated, that this corporation, thus constituted 328 DARTMOUTH COLLEGE VS. WOODWARD. should continue forever ; and that the number of trustees should forever consist of twelve, and no more. By this contract the crown was bound, and could have made no vio- lent alteration in its essential terms, without impairing its obligation. By the revolution the duties, as well as the powers, of government devolved on the people of New-Hamp- shire. It is admitted, that among the latter, was compre- hended the transcendent power of parliament, as well as that of the executive department. It is too clear to require the support of argument, that all contracts and rights respecting property remained unchanged by the revolution. The ob- ligations then, which were created by the charter to Dart- mouth College, were the same in the new, that they had been in the old government. The power of the government was also the same. A repeal of this charter at any time prior to the adoption of the present constitution of the Uni- ted States, would have been an extraordinary and unprece- dented act of power, but one, which could have been con- tested only by the restrictions upon the legislature, to be found in the constitution of the state. But the constitution of the United States has imposed this additional limitation, that the legislature of a state, shall pass no act " impairing the obligation of contracts." It has been already stated, that the act " to amend the " charter, and enlarge and improve the corporation of Dart- " mouth College," increases the number of trustees to twenty-one, gives the appointment of the additional num- bers to the executive of the state, and creates a board of overseers, to consist of twenty-five persons, of whom twen- ty-one are also appointed by the executive of New-Hamp- ehiie, who have power to inspect and controul the most im- portant acts of the trustees. On the effect of this law, two opinions cannot be enter- tained. Between acting directly, and acting through the SUPREME COURT, UNITED STATES. 329 agency of trustees and overseers, no essential difference is perceived. The whole power of governing the college is transferred from trustees appointed according to the will of the founder, expressed in the charter, to the executive of New-Hampshire. The management and application of the funds of this eleemosynary institution, which are placed by the donors, in the hands of trustees named in the charter, and empowered to perpetuate themselves, are placed by this act under the controul of the government of the state. The will of the state is substituted for the will of the do- nors, in every essential operation of the college. This is not an immaterial change. — The founders of the college con- tracted not merely for the perpetual application of the funds which they gave to the objects, for which those funds were given ; they contracted also to secure that application by the constitution of the corporation. They contracted for a system, which should, as far as human foresight can pro- vide, retain forever the government of the literary institu- tion, they had formed, in the hands of persons approved by themselves. This system is totally changed. The char- ter of 1769 exists no longer- It is reorganized ; and reor- ganized in such a manner, as to convert a literary institu- tion, moulded according to the will of its founders, and pla- ced under the controul of private literary men, into a ma- chine entirely subservient to the will of government. This may be for the advantage of this college in particular, and may be for the advantage of literature in general ; but it is not according to the will of the donors, and is subversive of that contract on the faith of which their property was given. In the view which has been taken of this interesting case, the court has confined itself to the rights possessed by the trustees, as the assignees and representatives of the donors and founders, for the benefit of religion and literature. Yet it ia not clear, that the trustees ought to be considered as r.i 330 DARTMOUTH COLLEGE VS. WOODWARD. destitute of such beneficial interest in themselves, as the law may respect. In addition to their being the legal own- ers of the properly and to their having a freehold right in the powers confided to them, the charter itself countenances the idea, that trustees may also be tutors with salaries.-^— The first president was one of the original trustees; and the charter provides that in case of vacancy, in that office " the senior professor or tutor, being one of the trustees, shall exercise the office of president, until the trustees shall make choice of, and appoint a president." According to the tenor of the charter, then, the trustees might without impropriety appoint a president and other professors from their own body. This is a power not entirely unconnected with an interest. If the proposition of the counsel for the defendant were sustained, if it were admitted, that those contracts only are protected by the constitution, a benefi- cial interest in which is vested in the party, who appears in court to assert that interest ; yet it is by no means clear, that the trustees of Dartmouth College, have no beneficial interest in themselves. But the court has deemed it unnecessary to investigate this particular point, being of opinion on general principles that in these private eleemosynary institutions, the body cor- porate, as possessing the whole legal and equitable interest, and completely representing the donors, for the purpose of executing the trust, has rights which are protected by the constitution. It results from this opinion, that the acts of the legislature of New-Hampshire, which are stated in the special verdict found in this cause, are repugnant to the constitution of the United States ; and that the judgment on this special ver- dict ought to have been for the plaintiffs. The judgment of the state court must therefore be reversed. SUPREME COURT, UNITED STATES. 331 Mr. Justick Washington, — This cause turns upon the validity of certain laws of the state of New-Hampshire, which have been stated in the case, and which, it is contend- ed by the counsel for the plaintiffs in error, are void, being repugnant to the constitution of that state, and also to the •constitution of the United States. Whether the first objec- tion to these laws, be well founded, or not, is a question, with which this court, in this case,has nothing to do : because it has no jurisdiction as an appellate court, over the decisions of a state court,except in cases, where is drawn in question the val- idity of a treaty, or statute of, or an authority exercised under the United States,and the decision is against their validity ; or ■where is drawn in question the validity of a statute of,or an au- thority exercised under, any state on the ground of their being repugnant to the constitution, treaties, or laws of the United States, and the decision is in favour of their validity ; or where 13 drawn in question the construction ofany clause of the costitu- i ion or of a treaty, or statu teof,or commission held under the Uni- ted States, and the decision is against the title, right, privi- lege, or exemption specially set up or claimed by either par- ty, under such clause of the sard constitution, treaty, statute or commission. The clause in the constitution of the United States, which was drawn in question in the court, from whence this tran- script has been sent, is that part of the tenth section of the first article, which declares that " no state shall pass any " bill of attainder, ex post facto law, or any law impairing 11 the obligation of contracts." Thedecisiou of the state court is against the title specially claimed by the plaintiffs in error, under the above clause, because they contend, that the laws of New-Hampshire above referred to, impair the obligation of a contract, and are consequently repugnant lo»the above clause of the constitution of the United States, and void. There are then two questions \\n this court to decide : 1st. Is the charter granted to Dartmouth College on the i 3th. of December !7fW to be considered, ai a contract' 332 DARTMOUTH COLLEGE VS. WOODWARD. If it be, then, 2dly do the laws in question, impair its obli- gation? 1st. What is a contract? It may be defined to be a transaction between two, or more persons, in which each party comes under an obligation to the other, and each re- ciprocally acquires a right to whatever is promised by the other(l). Under this definition, says Mr. Powell, it is obvi- ous that every feoffment, gift, grant, agreement, promise, Sec. may be included, because in all there is a mutual consent of the minds of the parties concerned in them upon an agreement between them, respecting some property or right that is the object of the stipulation. He adds, that the ingredients requisite to form a contract are, parties, con- sent and an obligation to be created, or dissolved ; these must all concur, because the regular effect of all contracts is on one side to acquire, and on the other to part with some prop- erty, or rights, or to abridge, or to restrain natural liberty by binding the parties to do, or restraining them from doing something, which before they might have done, or omitted. If a doubt could exist, that, a grant is a contract, the point was decided in the case of Fletcher and Peck,(2) in which it was laid down, that a contract is either executory, or ex- ecuted ; by the former, a party binds himself to do, or not to do a particular thing ; the latter is one, in which the ob- ject of the contract is performed, and this differs in nothing from a grant ; but whether executed or executory ; they both contain obligations binding on the parties, and both are equally within the provisions of the constitution of the Unit- ed States, which forbids the state governments to pass laws impairing the obligation of contracts. If then a grant be a contract,within the meaning of the con stitutionofjhe United States, the next enquiry is,whether the creation of a corporation by charter be such a grant, as in- (l~) Powell on Contracts 6. (2) 6^Crancli 8". SUPREME COURT, UNITED STATES. 333 eludes an obligation of the nature of a contract, which no state legislature can pass laws to impair? A corporation is defined by Mr. Justice Blackstone(3) to be a franchise. — It is, says he, " a franchise for a num- " ber of persons, to be incorporated aivd exist as a body pol- " itick, with a power to maintain perpetual succession, and " to do corporate acts, and each individual of such corpo- " ration is also said to have a franchise, or freedom." This franchise like other franchises, is an incorporeal hereditament, issuing out of something real or personal, or concerning or annexed to, and exercisable within a thing corporate. To this grant, or this franchise, the parties are the king, and the persons, for whose benefit it is created, or trustees for them. The assent of both is necessary. The subjects of the grant are not only privileges and immunities, but property, or, which is the same thing, a capacity to acquire, and to hold property in perpetuity. Certain obligations are created, binding both on the grantor, and the grantees. On the part of the former, it amounts to an extinguishment of the king's prerogative to bestow the same identical franchise on anoth- er corporate body, because it would prejudice his prior grant(4). It implies therefore a contract not to reassert the right to grant the franchise to another, or to impair it. There is also an implied contract, that the founder of a pri- vate charity, or his heirs, or other persons appointed by him for that purpose, shall have the right to visit, and to govern the co -potation, of which he is the acknowledged founder, and patron, and also, that in case of its dissolution, the reversionary right of (he founder to the property, with which lie had endowed it, should be preserved inviolate. The rights acquired by the other contracting party arc those of having perpetual succession, of suing, and being su- ed, of purchasing lands for the benefit of themselves air' (5)2 Black. Com. 57. (4) '2 Black. Com. 57 334 DAKTMOUTH COLLEGE VS. WOODWARD. (heir successors, and of having a common seal, and of mak- ing bye-laws. The obligation imposed upon them, and which forms the consideration of the grant, is that of acting up to the end or design for which they were created by their founder. Mr. Justice Buller in the case of the King vs. Passraore(5), says that the grant of incorporation is a com- pact between the crown and a number of persons, the latter of whom, undertake, in consideration of the privileges be- stowed, to exert themselves for the good government of the place. If they fail to perform their part of it, there is an end of the compact. The charter of a corporation, says Mr. Justice Blackstone,(6) may be forfeited through neg- ligence, or abuse of its franchises, in which case the law judges, that the body politick has broken the condition, up- on which it was incorporated, and thereupon the corpora-, tiou is void. It appears to me, upon the whole, that these principles and authorities prove incontrovertibly, that a charter of in- corporation is a contract. 2dly. The next question is, do the acts of the legislature of New-Hampshire of the 2rth of June, and 18th and 26th of December 1816, impair this contract within the true in^ tent and meaning of the constitution of the United States ? Previous to the examination of this question, it will be proper, clearly to mark the distinction between the differ- ent kinds of lay aggregate corporations, in order to prevent an}' implied decision by this court of any other case, than the one immediately before it. We are informed by the case of Philips vs. Bury, (7) which contains all the doctrine of corporations connected with this point, that there are two kinds of corporations aggregate, viz. such as are for publick government and such as are for private charity. The first are those for (S) 3D. Si E. 246. (6) -2 Black. Comm.4Si. (7) l Ld. Baym. 5. S. C 2. T.R. 546. SUPREME COURT, UNITED STATES. 335 the government of a town, city, or the like ; and being for publick advantage, are to be governed according to the law of the land. The validity and justice of their private laws and constitutions are examinable in the king's courts. Of these there are no particular founders, and consequent- ly no particular visitor. There are no patrons of these cor- porations. But private and particular corporations for char- ity, founded and endowed by private persons, are subject to the private government of those, who erect them, and are to be visited by them or their heirs, or such other persons, as they may appoint. The only rules for the government of these private corporations are the laws and constitutions assigned by ihe founder. This right of government and visitation arises 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 invests him with the ne- cessary power of inspecting and regulating it. The authori- ties are full to prove, that a college is a private charity, as well as a hospital, and that there is, in reality, no difference between them, except in degree ; but they are within the same reason and both eleemosynary. These corporations civil and eleemosynary which differ from each other so especially in their nature and constitu- tion, may very well differ in matters which concern their rights and privileges, and their existence and subjection to publick controul. The one is the mere creature of public in- stitution, created exclusively for the publick advantage with- out other endowments, lhan such as the king or government may bestow upon it, and having no other founder or visitor, than the king or government, the fundator incipiens. The validity and justice of its laws and constitution are examinable by the courts having jurisdiction over them; and they are sub- ject to the general law of the land. It would seem reasonable, that such a corporation may be controulcd and it.s constitu- tion altered and amended bv the Government in such man- 336 DARTMOUTH COLLEGE VS. WOODWARD. ner as (be publick interest may require. Such legislative interferences cannot be said to impair the contract, by which the corporation was formed, because there is in reali- ty but one party to it, the trustees, or governours of the corporation being merely the trustees for the publick, the cestui que trust of the foundation. These trustees or gov- ernours have no interest, no privileges or immunities, which are violated by such interference, and can have no more right to complain of them, than an ordinary trustee, who is called upon in a court of equity to execute the trust. They accepted the charter for the publick benefit alone, and there would seem to be no reason why the government under pro- per limitations should not alter or modify sucfe- a grant at pleasure. But the case of a private corporation is entirely different. That is the creature of private benefaction for a charity or private purpose. It is endowed and founded by private persons, and subject to their controul, laws and visitation, and not to the general controul of the government ; and all these powers, rights and privileges, flow from the property of the founder, in the funds assigned for the sup- port of the charity. Although the king by the grant of the ciiarter is in some sense the founder of all eleemosynary corporations, because, without his grant they cannot exist ; yet the patron or endower, is the perficient founder, to whom belongs, as of right, all the powers and privileges, which have been described. With such a corporation, it is not competent for the legislature to interfere. It is a fran- chise, or incorporeal hereditament, founded upon private property, devoied by its patron to a private charity of a peculiar kind, the offspring of his own will and pleasure, (o be managed and visited by persons of his own appoint- ment, according to such laws and regulations, as he, or the persons so selected may ordain. It has been shewn, that the charter is a contract, on the part of the government, that the property, with which the SUPItRME COURT, UNITED STATES. 337 charity is endowed, shall be forever vested in a certain num- ber of persons and their successors to subserve the particu- lar purposes designated by the founder ; and to be manag- ed in a particular way. If a law increases, or diminishes the number of the trustees, they are not the persons, which the grantor agreed should be the managers of the fund. If it appropriate the fund intended for the support of a partic- ular charity to that of some other charity, or to an entirely different charity, the grant is in effect set aside, and a new con- tract substituted in its place ; thus disappointing complete- ly the intentions of the founder by changing the objects of his bounty. And can it be seriously contended, that a law, which changes so materially the terms of a contract, does not impair it ? In short does not every alteration of a con- tract, however unimportant, even though it be manifestly for the interest of the party objecting to it, impair its obligation? ffthe assent of all the parties to be bound by a contract be of its essence, how is it possible, that anew contract, substi- tuted for, or engrafted on another without such assent, should not violate the old charter ? This course of reasoning, which appears to be perfectly manifest, is not without authority to support it. Mr. Jus- tice Blackstone lays it down(8), that the same identical franchise, that has been before granted to one, cannot be bestowed on another ; and the reason assigned is, that it would prejudice the former grant. In the King vs. Pass- more(9) lord Kenyon says that an existing corporation can- not have another charter obtruded upon it by the crown. — If may reject it, or accept the whole, or any part of the new charter. The reason is obvious. A charter is a contract, to the validity of which the consent of both parties is essen- tial, and therefore it cannot be altered, or added to without •uich consent. (8) 'J Rlac. Com. 37- (9) .3 D. &t E JiO- M 338 DARTMOUTH COLLEGE VS. WOODWARD. But the case of Terrettvs. Taylor (10) fully supports the distinction above stated between civil and private corpora- tions, and is entirely in point. It was decided in that case, that a private corporation created by the legislature may lose its franchises by misuser or nonuser, and may be re- sumed by the government under a judicial judgment of for- feiture. In respect to publick corporations which exist only for publick purposes, such as towns, cities, Sec. the legislature may under proper limitations change, modify, enlarge, or restrain them, securing however the property for the use of those for whom, and at whose expense it was purchased. But it is denied, that it has power to repeal statutes, creating private corporations, or confirming to them property already acquired under the faith of previous laws ; and that it can by such repeal, vest the property of such corporations in the state, or dispose of the same to such purposes, as it may please, without the consent or default of the corporators. Such a law, it is declared, would be re- pugnant both to the spirit, and the letter of the constitution of the United States. If these principles, before laid down, be correct, it can- not be denied, that the obligations of the charter to Dart- mouth College are impaired by the laws under considera- tion. The name of the corporation, its constitution, and government, and the objects of the founder, and of the gran- tor of the charter, are totally changed. By the charter the property of this founder was vested in twelve trustees, and no more, to be disposed of by them, or a majority, for the support of a college, for the education, and instruction of the Indians, and also of English youth, and others. Under the late acts the trustees and visitors are different ; and the property and franchises of the college are transferred to dif- ferent, and new uses, not contemplated by the founder. In short it is most obvious, that the effect of these laws, is, to (10) 9 Cranch 43. SUPREME COURT, UNITED STATES. 339 abolish the old corporation, and to create a new one in its stead. The laws of Virginia, referred to in the case of Terrett vs. Taylor, authorized the overseers of the poor to sell the glebes belonging to the protestant episcopal church, and to appropriate the proceeds to other uses. The laws in question divest the trustees of Dartmouth College of the property vested in them by the founder, and vest it in other trustees, for the support of a different institution, called Dartmouth University. In what respects do they differ ? Would the difference have been greater in princi- ple, if the law had appropriated the funds of the college to the making of turnpike road3, or to any other purpose of a publick nature ? In all respects, in which the contract has been altered without the assent of the corporation, its obli- gations have been impaired ; and the degree can make no difference in the construction of the above provision of the constitution. It has been insisted in the argument at the bar, that Dart- mouth College, was a mere civil corporation, created for a publick purpose, the publick being deeply interested in the education of its youth ; and that consequently the charter was as much under the controul of the government of New- Hampshire, as if the corporation had concerned the gov- ernment of a town or city. But it has been shewn, that the authorities are all the other way. There is not a case to be found, which contradicts the doctrine laid down in the case of Philips vs. Bury, viz. that a college founded by an indi- vidual, or individuals is a private charity, subject to the government and visitation of the founder, and not to the un- limited controul of the government. It is objected, in this case, that Dr. Wheelock is not the founder of Dartmouth College. Admit he is not. How would this alter the case '.' Neither the king, nor the province of New-Hampshire, was flit; founder; and if the contribu tiou^ made by the goveniour of Yu -Hampshire, by tlmsr 340 DARTMOUTH COLLLGE VS. WOODWABl). persons, who granted lands for the college in order to induce its location in a particular part of the state, by the other liberal contributors in England and America, bestow upon them claims equal with Dr. Wheelock, still it would not al- ter the nature of the corporation, and convert it into one for publick government. It would still be a private elee- mosynary corporation, a private charity endowed by a number of persons, instead of a single individual. But the fact is, that whoever may mediately have contributed to swell the funds of this charity, they were bestowed at the solicitation of Dr. Wheelock, and vested in persons ap- pointed. by him, for the use of a charity, of which he was the immediate founder, and is so styled in the charter. Upon the whole, I am of opinion, that the above acts of New-Hampshire, not having received the assent of the cor- porate body of DartmoutL College, are not binding on them, and consequently, that the judgment of the state court ought to be reversed. Mr. Justice Johnson', concurred for the reasons stated by the Chief Justice. Mr. Justice Livingston, concurred for the reasons stated by the Chief Justice and Justices Washington and Story. Mr. Justice Story. — This is a cause of great impor- tance, and as the very learned discussions, as well here, as in the state court, shew, of no inconsiderable difficulty — There are two questions, to which the appellate jurisdiction of this court properly applies. 1. Whether the original charter of Dartmouth College is a contract within the pro- hibitory clause of the constitution of the United Slates, which declares, that no state shall pass any " law impairing ihe obligation of contracts." 2. If so, whether the legis- lative acts of New-Hampshire of the 2Tth of June, and of 'he 18th and '27th of December 1816, or any of them ? im- pair the obligations of that charter. SUPREME COURT, UNITED STATES. 341 It will be necessary, however, before we proceed to dis- cuss these questions, to institute an inquiry into the nature, rights and duties of aggregate corporations at common lavr, that we may apply the principles, drawn from this source, to the exposition of this charter, which was granted emphat- ically with reference to that law. An aggregate corporation at common law is a collection of individuals united into one collective body under a spe- cial name and possessing certain immunities, privileges and capacities in its collective character, which do not belong to the natural persons composing it. Among olher things it possesses the capacity of perpetual succession, and of act- ing by the collected vote or will of its component members, and of suing and being sued in all things touching its corpo- rate rights and duties. It is in short an artificial person, ex- isting in contemplation of law, and endowed with certain powers and franchises, which though they must be exercised through the medium of its natural members, are yet consid- ered as subsisting in the corporation itself, as distinctly, as if it were a real personage. Hence such a corporation may- sue and be sued by its own members ; and may contract with them in the same manner as with any strangers(l). A great variety of these corporations exist in every country governed by the common law ; in some of which the corpo- rate existence is perpetuated by new elections made from time to time; and in others by a continual accession of new members without any corporate act. Some of these corpo- rations are, from the particular purposes to which they arc devoted, denominated spiritual, and some lav ; and the latter are again divided into civil and eleemosynary corporations. It is unnecessary in this place, to enter into any examination of civil corporations. Eleemosynary corporations are such as are constituted for the perpetual distribution of the free ilrns and bounty of the founder, in such manner as he has di- (\) I IJI. Com. iC,fj .;- i Kv Atlv. (irncral'vi. l'earse, '* ) The case of Sutton's Hospital. 10 Co- 23. (i) Rex vs. Bury, 1 Ld. Ray. 5. S. €.— Comb. 265.— Holt. 715 — 1 Shovr. 360, — 4 Mod. 106. — Skiu- 447. and Ld. Holt'sopinion from his own Ms, in 2 T. Rep. 346- SUPREME COURT, UNITED STATES. 345 liable to have the property confided to their care taken away from them without any assent or default on their part, and the administration submitted, not to the controul of law and equity, but to the arbitrary discretion of the government. Yet who ever thought before,that the munificent gifts of pri- vate donors for general charity became instantaneously the property of the government ; and that the trustees appointed by the donors, whether corporate or unincorporated, might be compelled to yield up their rights to whomsoever the government might appoint to administer them ? If we were to establish such a principle, it would extinguish all future eleemosynary endowments ; and we should find as little of publick policy, as we now find of law to sustain it. An eleemosynary corporation, then, upon a private founda- tion, being a private corporation, it is next to be considered, what is deemed a foundation, and who is the founder. This cannot be stated with more brevity and exactness than in the language of the elegant commentator upon the laws of England. " The founder of all corporations (says Sir Wil- " liam Blackstone) in the strictest and original sense is the " king alone, for he only can incorporate a society ; and in " civil corporations, such as mayor, commonalty, &c. where " there are no possessions or endowments given to the body, " there is no other founder but the king ; but in eleemosy- " nary foundations, such as colleges and hospitals, where " there is an endowment of lands, the law distinguishes and " makes two species of foundation, the one fundatio incipi- " ens r or the incorporation, in which sense the king is the " general founder of all colleges and hospitals; the other " fundatio perficiens, or the dotation of it, in which sense the •' first gift of the revenue is the foundation, and he, who " gives them, is in law the founder ; and it is in this last " sense we generally call a man the founder of a college u or hospital" (7). '-) 1 BJack- Coram. 480- 19- Co- 33- 4.0 : *46 DARTMOUTH COLLEGE VS. WOODWARD. To ail eleemosynary corporations a visitatorial power at- taches, as a necessary incident ; for these corporations be- ing composed of individuals, subject to human infirmities, are liable, as well as private persons, to deviate from the end of their institution. The law therefore has* provided, that there shall somewhere exist a power to visit, inquire into, and correct all irregularities and abuses in such corpo- rations, and to compel the original purposes of the charity to be faithfully fulfilled (8). The nature and extent of this visitatorial power has been expounded with admirable full- ness and accuracy by lord Holt in one of his most celebrat- ed judgments(9). And of common right by the dotation the founder and his heirs are the legal visitors, unless the founder has appointed and assigned another person to be visitor. For the founder may, if he please, at the time of the endowment part with his visitatorial power, and the per- son to whom it is assigned, will in that case possess it in ex- clusion of the founder's heirs(lO). This visitatorial power is therefore an hereditament founded in property, and valuable in intendment of law ; and stands upon the maxim, that he, who gives bis property, has a right to regulate it in future. It includes also the legal right of patronage, for as lord Holt justly observes, " patronage and visitation are necessary consequents one upon another." No technical terms are necessary io assign or vest the visitatorial power; it is suffi- cient, if from the nature of the duties to be performed by particular persons under the charter, it can be inferred, that the founder meant to part with it in their favour ; and he may divide it among various persons, or subject it to any modifications or controul, by the fundamental statutes of the corporation. But where the appointment is given in gener- al terms the whole power vests in the appointee(ll). In the (8) 1 Black. Comm. 480. (9) Phillips vs. Burj-, 1 Ld. Ray. 5. S. C— 2 T- Rep. 346. (JO) 1 Black. Comra. 482. (11) Eden vs.Foster, 2 P. W.325 — Attorney General vs. Middlelon, 2 Vez 327.— St. Johns College vs. Todington, 1BI. Rep. 84. S.C--2 Bur. 200. —Attorney General vs. Clare College, 3 Atk. G62. S- C,— I Ve?. 7S. SUPREME COURT, UNITED STATES. 3ir construction of charters too, it is a general rule, that if the objects of the charity are incorporated, as for instance, the master and fellows of a college, or the master and poor of a hospital, the visitatorial power, in the absence of any special appointment, silently vests in the founder and his heirs. But where trustees or governours are incorporated to manage the charity, the visitatorial power is deemed to belong to them in their corporate character(12). When a private eleemosynary corporation is thus creat- ed by the charter of the crown, it is subject to no other contronl on the part of the crown, than what is expressly or implicit'y reserved by the charter itself. Unless a power be reserved for this purpose, the crown cannot, in virtue of its prerogative, without the consent of the corporation, alter or amend the charter, or divest the corporation of any of its franchises, or add to them, or add to, or diminish, the num- ber of the trustees, or remove any of the members, or change or controul the administration of the charity, or compel the coiporatioj) to receive a new charter.— This is the uniform language of the authorities and forms one of the most stubborn and well settled doctrines of the common law (13). But an eleemosynary, like every other, corporation, is sub- ject to the general law of the land. It may forfeit its cor- porate franchises by misuser or nonuser of them. It is sub- ject to the confrouling authority of its legal visitor, who, tin- less restrained by the terms of the charter, may amend and repeal its statutes, remove its officers, correct abuses, and generally superintend the management of the trusts. Where indeed the visitatorial power is vested in the trustee* of the charity in virtue of their incorporation, there can be no amotion of them from their corporate capacity — But they are not therefore placed beyond the reach of the law. As (12: Phillip* 1- Hurv, 1 l>!. Kay. 5. S.C.— 1 T.Rcp. 346V— C.wn »* Ruth- rtliirili, 1 Yc7.-4"2. — Attwin-'y <-„'"—- Caw of Sutton Hospital, I"*'.,. .'). ,;i. .! Se<- Kex >•, I'..smiiu;<\> T. !(•■;>• IT'. ;.'ni ('22) Rex t* Paumore, 3 T. R. 1 .99. 239. 246. 358 DAHTMOUTII COLLEGE VS. WOODWARfe. services agreed to be rendered by them in execution of a charity,from which they conld receive no private remunera- tion. There isyet another view of this part of the ca3e, which deserves the most weighty consideration. The corporation was expressly created for the purpose of distributing in per- petuity the charitable donations of private benefactors. By the terms of the charter the trustees, and their suc- cessors in their corporate capacity, were to receive, hold snd exclusively manage all the funds so contributed. The crown then upon the face of the charter, pledged its faith, that the donations of private benefactors should be perpetu- ally devoted to their original purposes without any interfer- ence on its own part and should be forever administer- ed by the trustees of the corporation, unless its corpo- rate franchises should be taken away by due process of law — From the very nature of the case, therefore, there was an implied contract on the part of the crown with every benefactor, that if he would give his money, it should be deemed a charity protected by the charter, and be administered by the corporation according to the general law of the land. As soon then as a donation was made to the corporation, there was an implied contract springing up and founded on a valuable consideration, that the crown would not revoke or alter the charter or change its administration without the consent of the corporation. There was also an implied contract between the corpora- tion itself and every benefactor upon a like consideration, that it would administer his bounty according to the terms and for the objects stipulated in (he charter. In every view of the case, if a consideration were neces sary (which I utterly deny) to make the charter a valid con- tract, a valuable consideration did exist, as to the founder, the trustees and the benefactors. And upon the soundest legal principles the charter maybe properly deemed, accord- SUPREME COURT, UNITED STATES. 359 iftg to the various aspects, in which it is viewed, as a sever- al contract with each of these parties, in virtue of the found- ation, or the endowment of the college, or the acceptance of the charter, or the donations to the charity. And here we might pause; but there is yet remaininganotb- er view of the subject, which cannot consistently be passed over without notice. It seems to be assumed by the argu- ment of the defendants counsel, that there is no contract whatsoever, in the virtue of the charter, between the crown and the corporation itself. But it deserves consideration, whether this assumption can be sustained upon a solid founds ation. If this had been a new charter granted to an existing cor- poration, or a grant of lands to an existing corporation, there could not have been a doubt, that the grant would have been an executed contract with the corporation ; as much so, as if it had been to any private person. But it is supposed, that as this corporation was not then in existence, but was created and its franchises bestowed, uno flatu, the charter cannot be construed a contract, because there was no per- son in rerum natura, with whom it might be made. Is this however a just and legal view of the subject ? If the corpo- ration had no existence so as to become a contracting party, neither had it for the purpose of receiving a grant of the franchises. The truth is, that there may be a priority of op- eration of things in the tame grant ; and the law distinguish- es and gives such priority, wherever it is necessary to ef- fectuate the objects of the granf(23). From the nature of things, the artificial person called a corporation must be created before it can be capable of taking any thing. When therefore a charter is granted, and it brings the corporation into existence without any act of the natural persons, who compose it, and give3 such corporation any privileges, fran- ca) Cn3e of Sutton's Hospital, 10 Co. 23. — HucklHiul \^. Fowclirr, fit r ,1 in Co. '27, '28, and recognized in Attorney Ceneral v~. I'.m- \ . r, .> V <•■/ ' ■■. "U.-'io.Tgr.— b> I' Uijjhuiore on ,Moi>m. JO", b i' 36(1 DARTMOUTH COLLEGE VS. WOODWAKU. chises or property, the law deems the corporation to be first brought into existence, and then clothes it with the granted liberties ami property. When, on the other hand, the cor- poration is to be brought into existence by some future acts of the corporators, the franchises remain in abeyance, until such acts are done, and when the corporation is brought in- to life, the franchises instantaneously attach to it. There may be in intendment of law a priority of time even in an instant for this purpose (24). And if the corporation have an existence before the grant of its other franchises attaches, what more difficulty is there in deeming the grant of these franchises a contract with it, than if granted by another in- strument at a subsequent period ? It behoves those also, who hold, that a grant to a corporation, not then in exis- tence, is incapable of being deemed a contract on that ac- count, to consider, whether they do not at the same time es- tablish, that the grant itself is a nullity for precisely the same reason. Yet such a doctrine would strike us all as preg- nant with absurdity, since it would prove that an act of in- corporation could never confer any authorities, or rights or property on the corporation it created* It maybe admitted that two parties are necessary to form a perfect contract ; but it is denied that it is necessary, that the assent of both parties must be at the same time. If the legislature were voluntarily to grant land in fee to the first child of A. to be hereafter born ; as soon as such child should be born, the estate would vest in it. Would it be contended, that such grant, when it took effect, was revocable, and not an execut- ed contract, upon the acceptance of the estate 1 The same question might be asked in a case of a gratuitous grant by the king or the legislature to A. for life, and afterwards to the heirs of B., who is then living. Take the case of a bank, incorporated for a limited period upon the express condition, that it shall pay out of its corporate funds a certain sum, as '-2V' lhi) Iljiil. f 27) Sw Ilolm'-s '. s. L;.'inir. 3 John O /.';. 364 DARTMOUTH COLLEGE VS. WOODWARD. general laws regulating divorces upon breaches of that con? tract. But if the argument means to assert, that the legislar ture has power to dissolve such a contract without any breach on either side, against the wishes of the parlies, and withr out any judicial enquiry to ascertain a breach, I certainly am not prepared to admit such a power, or that its exercise would not intrench upon the prohibition of the constitution. If under the faith of existing laws a contract of marriage be duly solemnized, or a marriage settlement be made (and marriage is always in law a valuable consideration for a con- tract) it is not easy to perceive, why a dissolution of its ob- ligations without any default or assent of the parties may not as well fall within the prohibition, as any other contract for a valuable consideration. A man has just as good a right to his wife, as to the property acquired under a mar- riage-contract. He has a legal right to her society and her fortune ; and to devest such right without his default and against his will would be as flagrant a violation of the princi- ples of justice, as the confiscation of his own estate. I leave this case however to be settled, when it shall arise. I have gone into it, because it was urged with great earnestness upon us, and required a reply. It is sufficient now to say, that as at present advised, the argument, derived from this source, does not press my mind with any new and insur- mountable difficulty. In respect also to grants and contracts, it would be far too narrow a construction of the constitution to limit the prohibitory clause to such only, where the parties take for their own private benefit. A grant to a private trustee for the benefit of a particular cestui que trust, or for any spe- cial private or publick charity, cannot be the less a contract, because the trustee takes nothing for his own benefit. A grant of the next presentation to a church is still a contract, although it limit the grantee to a mere right of nomination or patronage (28 j. The fallacy of (he argument consists in (28)2 111. Cornrn. £1- SUPREME COURT, UNITED STATES, 36J assuming the very ground in controversy. It is not admit- ted, that a contract with a trustee is in its own nature revo- cable, whether it be for special or general purposes, for publick charity or particular beneficence. A private dona- tion, vested in a trustee for objects of a general nature,does not thereby become a publick trust, which the government may at its pleasure take from the trustee, and administer in its own way. The truth is, that the government have no power to revoke a grant, even of its own funds, when given to a private person, or a corporation for special usea. It cannot recal its own endowments granted to any hospital, or college, or city, or town, for the use of such corporation. The only authority remaining to the government is judicial, to ascertain the validity of the grant, to enforce its proper uses, to suppress frauds, and, if the uses are charitable, to secure their regular administration through the means of equitable tribunals in cases, where there would otherwise be a failure of justice. Another objection growing out of, and connected with, that, which we have been considering, is, that no grants arc within the constitutional prohibition, except such as respect property in the strict sense of the term ; that is to say, ben- eficial interests in lands, tenements and hereditaments, &c. &c, which may be sold by the grantees for their own bene- fit : and that grants of franchises, immunities, and aulhorities not valuable to the parties, as property, are excluded from its purview. No authority has been cited to sustain this distinction, and no reason is perceived to justify its adoption. There are many rights, franchises and authorities, which are valuable in contemplation of law, where n.j beneficial intereit can accrue to the possessor. A grant offhe next ••rescnta tion to a church limited to the grantee alone ha- ' u alrea dy mentioned. A power 01 appointment. vod in a marriage-si't'iement eifh' r to a naif'' ;; er, to ap- point uses infavof." >' •' '• . •. compensation, 366 DARTMOUTH COLLEGE VS. WOODWARD. ■is another instance. A grant of lands to a trustee to raise portions or pay debts is in law a valuable grant and conveys a legal estate. Even a power given by will to executors to sell an estate for payment of debts, is by the better opinions an authority coupled with a trust and capable of survivor- ship^^. Many dignities and offices, existing at common law, are merely honourary and without profit, and sometimes are onerous. Yet a grant of them has never been supposed the less a contract on that account. In respect to franchi- ses, whether corporate or not, which include a pernancy of profits, such as a right of fishery, or to hold a ferry, a mar- ket, or a fair, or to erect a turnpike, bank, or bridge, there is no pretence to say, that grants of them are not within the constitution. Yet they may, in point of fact, be of no ex- changeable value to the owners. They may be worthless in the market. The truth however is, that all incorporeal hereditaments, whether they be immunities, dignities, offices or franchises, or other rights, are deemed valuable in law. — The owners have a legal estate and property in them and legal remedies to support and recover them in case of any injury, obstruction or disseizen of them. Whenever they are the subjects of a contract or grant, they are just as much within the reach of the constitution, as any other grant. — Nor is there any solid reason, why a contract for the ex- ercise of a mere authority should not be just as much guard- ed, as a contract for the use and dominion of property .— Mere naked powers, which are to be exercised for the ex- clusive benefit of the grantor, are revocable by him for that very reason. But it is otherwise, where a power is to be exercised in aid of a right vested in the grantee. We all know, that a power of attorney, forming a part of a security upon the assignment of a chose in action, is not revocable by (29)Co- Lit- 113- a. Harg. and Butler's note 2. — Sugden on Powers, 140. — Jackson vs. Jansen, 6 John. R. 73. — Franklin vs. Osgood, 2 Johns. Cas. a.S.C 14 Johns. R. 527— Zebach vs. Smith, 3 Binn. R. 69— Lessee of Moody vs. Vandyke, 4 Bin. R. 31.— Atty. GenLv* Gleg. 1 Atk- 356— 1 Bat. Abr. 586. (Guillim edit.) SUPREME COURT, UNITED STATES. 36f ihe grantor. For it then sounds in contract and is coupled with an interest(30). So if anestate be conveyed in trust for the grantor, the estate is irrevocable in the grantee, al- though he can take no beneficial interest for himself. Many of the best settled estates stand upon conveyances of this nature ; and there can be no doubf, that such grants are con- tracts within the prohibition in question. In respect to corporate franchises, they are, properly speaking, legal estates vested in the corporation itself, as soon as it is in esse. They are not mere naked powers granted to the corporation ; but powers coupled with an in- terest. The property of the corporation rests upon the pos- session of its franchises ; and whatever may be thought as to the corporators, it cannot be denied, that the corporation it- self has a legal interest in them. It may sue and be sued for them. Nay more, this very right is one of its ordinary franchises. " It id likewise a franchise," says Mr. Justice Biackstone, "for a number of persons to be incorporated <: and subsist as a body politick, with power to maintain " perpetual succession and do other corporate acts ; and " each individual member of such corporation is also said " to have a franchise or fieedom"(31). In order to get rid of the legal difficulty of these franchises being considered as valuable hereditaments or property, the counsel for the defendant are driven to contend, that the corporators or trustees are mere agents of the corporation, in whom no ben- eficial interest subsists ; and so nothing but a naked power is touched by removing them from the trust ; and then to hold the corporation itself a mere ideal being, capable in deed of holding property or franchises, but having no inter- est in them, which can be the subject of contract. Neither of these positions is admissible. The former lias been al readv sufficiently considered, and the latter may be dispos (30) Walsh vs. Whitcomb, 2 F.sp. U. 505. — Bi-rpf-n \x. BVnnett, 1 Cuir.cp Cas. in V.r. 1. 15. — Itavinoinl vn. Squire, 1 1 .J«fni'=. ft- IT. (T.1) 3 HI. Cnmm. .V — l ky«l Uorp. U. !*• 368 DARTMOUTH COLLEGE VS. WOODWARD. ed of in a few words. The corporators are not mere agents, but have vested rights in their character as corporators. The right to be a freeman of a corporation is a valuable temporal right. It is a right of voting and acting in the cor- porale concerns, which the law recognizes and enforces, and for a violation of which it provides a remedy. It is founded on the same basis as the right of voting in publick elections ; it is as sacred a right ; and whatever might have been the prevalence of former doubts, since the time of lord Holt such aright has always been deemed a valuable fran- chise or privilege (32). This reasoning, which has been thus far urged, applies with full force to the case of Dartmouth college. The fran- chises granted by the charter were vested in the trustees in their corporate character. The lands and other property, subsequently acquired, were held by them in the same man- ner. They were the private demesnes of the corporation, held by it, not, as the argument supposes, for the use and benefit of the people of New-Hampshire, but, as the char- ter itself declares, "for the use of Dartmouth college." There were not, and in the nature of things, could not be- any other cestuis que use entitled to claim those funds. They were indeed to be devoted to the promotion of piety and learning, not at large, but in that college, and the estab- lishments connected with it ; and the mode, in which the charity was to be applied, and the objects of it were left solely to the discretion of the trustees, who were the legal governoursand administrators of it. No particular person in New-Hampshire possessed a vested right in the bounty; nor could he force himself upon the trustees as a proper ob- ject. The legislature itself could not deprive the trustees, of the corporate funds, or annul their discretion in the ap- plication of them, or distribute them among its own favour- ites. Could the legislature of New-Hampshire have seized (3-2) Ash by vs. White, 2 Lord Raym. 938 — 1 Kyd Corp. 16. SUPREME COUIIT, UNITED STATES. 369 the land given by the state of Vermont to the corporation and appropriated it to uses, distinct from those, intended by the charity, against the will of the trustees? This question cannot be answered in the affirmative, until it is established, that the same legislature may lawfully take the property of A. and give it to B. and if it could not take away the cor- porate funds, upon what pretence can it take away or restrain the corporate franchises ? Without the franchises, the funds could not be used for corporate purposes ; but without the funds, the possession of the franchises might still be of inestimable value to the college and to the cause of religion and learning. Thus far the rights of the corporation itself in respect to its property and franchises have been more immediately considered. But there are other rights and privileges be- longing to the trustees collectively and severally, which are deserving of notice. They are entrusted with the exclu- sive power to manage the funds, to choose the officers, and to regulate the corporate concerns, according to their own discretion. The jus patronatus is vested in them. The visitatorial power in its most enlarged extent also belongs lo them. When this power devolves upon the founder of a charity, it is an hereditament, descendible in perpetuity to his heirs, and in default of heirs, it escheats to the gov- ernments). It is a valuable right founded in property, as much so, as the right of patronage in any other case. It is a right, which partakes of a judicial nature. May not the founder as justly contract for the possession of this right in return for his endowment, as for any other equivalent? and, if instead of holding it as an hereditament, he assigns it in perpetuity to the trustees, of the corporation, is it less a valuable hereditament in their hands ? The right is not merely a collective right in all the trustees ; each of them ilso has a franchise in it. Lord Holt says, " it is agreeable Cr>) Rex vs- St. Catherine's Hill. 4 T. Rep. 233. ■IP, 370 DARTMOUTH COLLEGE VS. WOODWARD. " to reason and the rules of law, that a franchise should be vested in the corporation aggregate and yet the benefit re- " dound to the particular members and be enjoyed by them " in their private capacities. Where the privilege of elec- " tion is used by particular persons it is a particular right " vested in each particular man" (34). Each of the trus- tees had a right to vote in all elections. If obstructed in the exercise of it, the law furnished him with an adequate recompense in damages. If ousted unlawfully from his of- fice, the law would by a mandamus, compel a restoration. It is attempted, however, to establish, that the trustees have no interest in the corporate franchises, because it is said, that they may be witnesses in a suit brought against the cor- poration. The case cited at the bar certainly goes the length of asserting, that in a suit brought against a charitable corporation for arecompence for services performed for the corporation, the gorernours, constituting the corporation, (but whether entrusted with its funds or not by the act of in- corporation does not appear) are competent witnesses against the plaintiff(35). But assuming this case to have been rightly decided, (as to which upon the authorities there may be room to doubt,) the corporators being technically par- ties to the record(36) it does not establish that in a suit for the corporate property vested in the trustees in their corpo- rate capacity, the trustees are competent witnesses. At all events, it does not establish, that in a suit for the corporate franchises to be exercised by the trustees, oi»to enforce their visitatorial power, the trustees would be competent witness- es. On a mandamus to restore a trustee to his corporate or visitatorial power, it will not be contended, that the trustee is himself a competent witness to establish his own rights (34) Ashbv vs. White, 2 Ld. Raym. 938. 952 — Att'y Gen. vs. Dixie, IS Vez.519. (35) Woller vs. the Govemour of the Foundling Hospital, Peake. N. P Rep. 153. (3C) Attorney General vs. City of London, &c. 3 Bro. Ch. c. 171. S. C — I Vez. jr. -24'. — Burton vs. Hinde, 5 T. R. 174. — Nason vs.T hatcher, 7. Mass. R. 398. — Phillips on Evid. 42. 52. 57- and notes. — 1 Kyd Corp f>( ---i? Ste-. — Highiuorc oa Morton, 514. SUPREME COURT, UNITED STATES. 37 1 er the corporate rights. Yet why not, if the law deems^ that a trustee has no interest in the franchise ? The test of interest, assumed in the argument, proves nothing in this case. It is not enough to establish, that the trustees are sometimes competent witnesses, it is necessary to shew, that they are always so in respect to the corporate franchises and their own. It will not be pretended, that in a suit for damages for obstruction in the exercise of his official powers, a trus- tee is a disinterested witness. Such an obstruction is not a damnum absque injuria. Each trustee has a vested right and legal interest in his office, and it cannot be devested but by due course of law. The illustration therefore lends no new force to the argument, for it does not establish, that when their own rig!;>'< < in controversy, the trustees have no le- gal interest in their offices. The principal objections having been thuB answered, satis- factorily at least to my own mind, it remains only to declare that my opinion after the most mature deliberation is, that the charter of Dartmouth College, granted in 1769, is a con- tract within the purview of the constitutional prohibition. I might now proceed to the discussion of the second ques- tion ; but it is necessary previously to dispose of a doctrine, which has been very seriously urged at the bar, viz. that the charter of Dartmouth College was dissolved at the revo- lution, and is therefore a mere nullity. A case before lord Thurlow has been cited in support of this doctrine(37). — The principal question in that case was whether the corpo- ration of William & Mary's College in Virginia, (which had received its charter from king William and Queen Mary) should still be permitted to administer the charity under Mr. Boyle's will, no interest having passed to the college under thr* will, but it acting as an agent or trustee under a decree in chancery, or whether a new scheme for the administra- tion of the charity, should be laid before the court. Lord (r>7) Attorney (General v*. City of London* 3 Bro. C!i-C>171.S.C — 1Wz.jp UTZ DARTMOUTH COLLEGE VS. WOODWARD. Thurlow directed a new scheme because the college belong- ing to an individual government, was no longer within the reach of the court. And he very unnecessarily added, that he could not now consider the college as a corporation, or as another report (38) states, that he could not take no- tice of it as a corporation, it not having proved its exist- ence as a corporation at all. If by this Lord Thurlow meant to declare, that all charters acquired in America from the crown were destroyed by the revolution, his doctrine is not law ; and if it had been true, it would equally apply to all other grants from the crown, which would be monstrous. It is a principle of the common law which has been recognized as well in this as in other courts, that the division of an em- pire works no forfeiture of previously vested rights of prop- erty. And this maxim is equally consonant with the com- mon sense of mankind and the maxims of eternal justice(39). This objection therefore may be safely dismissed without further comment. The remaining inquiry is, whether the acts of the legisla- ture of New-Hampshire now in question, or any of them, impair the obligations of the charter of Dartmouth College. The attempt certainly is to force upon the corporation anew charter against the will of the corporators. Nothing seems better settled at the common law than the doctrine, that the crown cannot force upon a private corporation a new char- ter ; or compel the old members to give up their own fran- chises, or to admit new members into the corporation (40). Neither can the crown compel a man to become a member of such corporation against his will(41). As little has it been supposed, that under our limited governments the leg- islature possessed such transcendant authority. On oneoc- (38) 1 Vez.jr. 243. (39) Terrett vs. Taylor, 9 Cranch 43. 50. — Kelly vs. Harrison, 2 Johns. cas„ 29. — Jackson vs. Lunu. 3 Johns, cas. 109 — Calvin's case, 7 Co. 2". f4Q) Rex vs. Vice Chancellor of Cambridge, 3 Bur.lf>56. — Hex vs.Passmore 3T. Rep. 2i0 — I Kvd Corp. 65— Rex vs. Larwood, Comb. 31fi. '.W Rex vs. Dr. Askew, 4 Burr. i.200 SUPREME COURT, UNITED STATES. U73 casion a very able court held, that the slate legislature had no authority to compel a person to become a member of a mere private corporation created for the promotion of a pri- vate enterprize, because every man had a right to refuse a grant(42). On another occasion the same learned court declared, that they were all satisfied, that the rights legally vested in a corporation, cannot be controuled or destroyed by any subsequent statute, unless a power for thai purpose be reserved to the legislature in the act of incorporation (43). These principles are so consonant with justice, sound policy and legal reasoning, that it is difficul to resist the im- pression of their perfect correctness. The application of them however does not, from our limited authority, proper- ly belong to the appellate jurisdiction of this court in this case. A very summary examination of the acts of New-Hamp- shire will abundantly shew, that in many material respects they change the charter of Dartmouth College. The act of the 27th of June 1816, declares that the corporation known by the name of the Trustees of Dartmouth College shall be called the Trustees of Dartmouth University. That the whole number of trustees shall be twen!y-ont, a majority of whom shall form a quorum — that they and their successors shall hold, use and enjoy forever all the powers, authorities, rights, property, liberties, privileges, and immu- nities, heretofore held, &c. by the trustees of Dartmouth, College, except where the act otherwise provides; — that they shall also have power to determine the times and place* of their meetings and manner of notifying the same; to or- ganize colleges in the university; to establish an institute, and elect fellows and members thereof ; to appoint and dis- place officers, and determine their duties and compensation; to delegate the power of supplying vacancies in any of the (42) Ellis ts. Marshall, Mass. Rip. 269- (43J Wales vs.Stetaou, 2 Mass. Rep. 143. 1 if, 374 DARTMOUTH COLLBGE VS. WOODWAM). offices of the university for a limited terra ; to pass •rdi- nances for the government of the students ; to prescribe the course of education ; and to arrange, invest and employ the funds of the university. The act then provides for the appointment of a board of twenty-five overseers, fifteen of whom shall form a quorum, of whom five are to be such ex officio, and the residue of the overseers as well as the new trustees are to be appointed by thegovernour and council. The board of overseers are among other things to have power, " to inspect and confirm, or disapprove and nega- " tive, such votes and proceedings of the board of trustees, " as shall relate to the appointment and removal of presi- " dent, professors and other permanent officers of the uni- " versity, and determine their salaries ; to the establish- ** ment of colleges and professorships, and the erection of " new college buildings.'* The act then provides, that ths president and professors shall be nominated by the trustees and appointed by the overseers, and shall be liable to be suspended and removed in the same manner ; and that each of the two boards of trustees and overseers shall have pow- er to suspend and remove any member of their respective boards. The supplementary act of the 18th of December, 1816, declares that nine trustees shall form a quorum, and that six votes at least shall be necessary for the passage of any act or resolution. The act of the 26th of December. 1816, contains other provisions, not very material to the question before us; From this short analysis it is apparent, that in substance a new corporation is created including the old corporators, with new powers and subject to a new controul ; or that the old corporation is newly organized and enlarged and placed under an authority hitherto unknown to it. The board of trustees are increased from twelve to twenty-one. The college becomes a university. The property vested in the old trustees is transferred to the new board of trustee? in SUTOHMB COURT, UNITED STATES; 375 their corporate capacities. The quorum is no longer seven t but nine. The old trustees have no longer the sole right to perpetuate their succession by electing other trustees, but the nine new trustees are in the first instance to be ap- pointed by the governour and council, and the new board are then to elect other trustees from time to time as vacan- cies occur. The new board, too, have the power to sus- pend or remove any member, so that a minority of the old board, co-operating with the new trustees, possess the un- limited power to remove the majority of the old board. The powers, too, of the corporation are varied. It has au- thority to organize new colleges in " the university and to " establish an institute and elect fellows and members u thereof." — A board of overseers is created, (a board ut- terly unknown to the old charter) and is invested with a general supervision and negative upon all the most impor- tant acts and proceedings of the trustees. And to give com- plete effect to this new authority, instead of the right to ap- point, the trustees are in future only to nominate, and the overseers are to approve, the president and professors of the University. If these are not essential changes, impairing the rights and authorities of the trustees and vitally affecting the interests and organization of Dartmouth College under its old charter, it is difficult to conceive, what acts, short of an uncondition- al repeal of the charter, could have that effect. If a grant of land or franchises be made to A. in trust for special pur- poses, can the grant be revoked, and a new grant thereof be made to A. B. and C. in trust for the same purposes, without violating the obligation of the first grant ? If prop- erty be vested by grant in A .and B. for the use of a college, or a hospital, of private foundation, is not the obligation of that tyrant impaired, when the estate is taken from their ex- clusive management and vested in them in common with ten othtr persons ? If a power of appointment be given to A. 376 DARTMOUTH COLLEGE VS. WOODWARD. and B. is it no violation of their right, to annul the appoint- ment, unless it be assented to by five other persons, and then confirmed by a distinct body ? If a bank, or insurance com- pany by the terms of its charter be under the management of directors, elected by the stockhoIders,wou!d not the rights acquired by the charter be impaired, if the legislature should take the right of election from the stockholders and appoint directors unconnected with the corporation ? These ques- tions carry their own answers along with them. The com- mon sense of mankind will teach us, that all these cases would be direct infringements of the legal obligations of the grants, to which they refer ; and yet they are with no es- sential distinction, the same as the case now at the bar. In my judgment it is perfectly clear, that any act of a leg- islature, which takes away any powers or franchises vested by its charter in a private corporation or its corporate offi- cers, or which restrains or controuls the legitimate exercise of them, or transfers them to other persons, without its as- sent, is a violation of the obligations of that charter. If the legislature mean to claim such an authority, it must be re- served in the grant. The charter of Dartmouth College contains no such reservation ; and I am therefore bound to declare, that the acts of the legislature of New-Hampshire now in question, do impair the obligations of that charter, and are consequently unconstitutional and void. In pronouncing this judgment, it has not for one moment escaped me, how delicate, difficult and ungracious is the task devolved upon us. The predicament in which this court stands in relation to the nation at large, is full of per- plexities and embarrassments. It is called to decide on causes between citizens of different states, between a state and its citizens, and between different states. It stands therefore in the midst of the jealousies and rivalries of con- flicting parties, with the most momentous interests confided to its care. Under such circumstances, it never can have SUPREME COURT, UNITED STATES, 377 a motive to do more than its duly; and, I trust, it will al- ways be found to possess firmness enough to do that. Under these impressions I have pondered on the case before us with the most anxious deliberation. I entertain great respect for the legislature, whose acts are in ques- tion. I entertain no less respect for the enlightened tribu- nal whose decision we are called upon to review. In the examination I have endeavoured to keep my steps super aatiquas vias of the law under the guidance of authority and principle. It is not for judges to listen to the voice of persuasive eloquence or popular appeal. We have nothing to do but to pronounce the law as we find it ; and having done this, our justification must be left to the impartial judg- ment of our country. Mr. Justice Dcvall dissented.-— After the opinions had been pronounced, upon the sug gestion of the plaintiffs' counsel that the defendant had died since the last term, the court ordered the judgment to be entered as of that term, as follows. — This cause came on to be heard on the transcript of the record ; and was argued by counsel and thereupon all and singular the premises being seen and by the court now here fully understood, and mature deliberation being thereupon had, it appears to this court, that the said acts of the legis- lature of New-Hampshire, of the twenty-seventh of June and of (he eighteenth and twenty-sixth of December, Anno Domini 181G, in the record mentioned, are repugnant to the constitution of the United States, and so not valid; and, therefore, that the said superior court of judicature of the state of New-Hampshire erred in rendering judgment on the p?c\ d verdict in favour of the said Woodward, that he snou'.i.' H ; his ( is's against the said plaintiffs ; and that the said court ought tu have rendered judgment thereon that 4<» ^8 DARTMOUTH COLLEGE VS. WOODWARD, &c. the said trustees recover against the said Woodward, (he amount of damages found and assessed in and by the verdict aforesaid, viz. the sum of twenty thousand dollars : Where- upon it is considered, ordered and adjudged by this court now here, that the aforesaid judgment of the said superior court of judicature of the state of New-Hampshire be, and the same hereby is, reversed and annulled : And this court proceeding to render such judgment in the premises as the said superior court of judicature ought to have rendered, it is further considered by this court now here, that the said trustees of Dartmouth college do recover against the said William H. Woodward the aforesaid sum of twenty thou- sand dollars, with costs of suit : and it is by this court now here further ordered, that a special mandate do go from this court to the said superior court of judicature to carry thifc judgment into execution. APPENDIX No. I. AT an annual meeting of the Trustees of Dartmouth Col- lege, holden the 28f/i day of August Anno Domini, 1816— Present, Ret. FRANCIS BROWN, President, Ho>\ NATHANIEL NILES, Hoy. THOMAS W. THOMPSON, Hon. TIMOTHY FARRAR, Hoy. ELIJAH PAINE, LL.D. Hox. CHARLES MARSH, Rev. ASA M'FARLAND, D-D. Rev- JOHN SMITH, R*v. SETH PAYSON, D.D. The trustees of Dartmouth College have been informed, through the publick newspapers, that the legislature of New-Hampshire, at their last June icssion, passed an act in the following words viz. [Here the act is recited.] The trustees deem it their duty to place on their records the following facts. At the session of the legislature of the state, holden in June, A. D. 181.0, Doctor John Wheelock, the then Pres- ident of the College, presented a memorial to that body, in which he charged a majority of the trustees of the college with gross misbehavior in office. Doctor Wheelock's memorial was committed to a joint committee of both branches of the legislature, and he was fully heard before the committee ex parte, neither the trus- tees nor the members then present being notified or heard. 380 APPENDIX. The legislature thereupon, appointed the Honourable Daniel A. White, Hon. Nathaniel A. Haven, and Rever- end Ephraim P. Bradford, a committee to repair to the col- ege and investigate facts and report thereon. The said committee did, in August following, meet at the college, heard both Doctor Wheelock in support of his charges against the trustees, and the trustees in their defence, and at the session of the legislature in June last made their re- port, which has been published. The report of facts made by Messrs. White, Haven, and Bradford, was committed to a joint committee of both bran- ches and this last committee in their report, expressly de- cline considering the report of facts as the proper ground upon which the legislature ought to proceed in relation to the college. The trustees were not notified at any stage of the proceed- ings to appear by themselves, or agent before the legislature and answer the charges exhibited against them by the said Wheelock. Thomas W. Thompson, Elijah Paine, and Asa M'Far- land, three of the trustees implicated, attended the legisla- ture in June last, and respectfully petitioned for the privi- lege of being heard on the floor of the house (a privilege seldom denied to parties in interest) in behalf of themselves and the other trustees ; but were refused. During the same session, the said Thompson, Paine, and M'Farland presented to the legislature a remonstrance(l) against the passage of the bill relating to the college, then pending. And afterwards on the 24(b day of June, the said Thomp- son and M'Farland presented to the legislature another re- monstrance^) against the passage of the act now under con- sideration. Both remonstrances were read and laid on the table- ( 1 ) S>jc note fa) at the end of Appendix No. I. (2) See note (bjj a* the end of Appendix No. I. APPENDIX. 381 No facts were proved to the legislature and no report of facts of any legislative committee was made, to show that the state of things at the college rendered any legislative interfer- ence necessary. The act passed by small majorities in the house of Rep- resentatives^) and the Senate. The trustees forbear to make any comment on the forego- ing facts. They consider themselves under a high responsibility to their fellow citizens and to the benefactors of the college, to pursue that course in relation to the said act, and the facts stated, which will p-<« e ultimately most beneficial to the present and succeeding generations. They are very sensible of their own liability to err. Nor do they believe that legis- lative majorities are exempt from the same imperfection. Compelled as they are by the necessity of the case to ac- cept or refuse the provisions of the said act, they cannot avoid deciding the question. They find the law fully settled and recognized in almost every case which has arisen, wherein a corporation or any member or officer is a party, that no man, or body of men is bound to accept, or act under any grant or gift of corpo- rate powers and privileges; and that no existing corporation is bound to accept, but may decline or refuse to accept any act or grant conferring any additional powers or privileges, or making any restriction or limitation of those they already possess ; and in case a grant is made to individuals, or to a corporation without application, it is to be regarded not as an act obligatory or binding upon them, but as an ofFer or prn-^- ...un to confer such powers and privileges ; or the ex- pression of a desire to have them accept such restrictions, which they are at liberty to accept or reject. The trustees apprehend from the course taken by the legislature, that an opinion prevails that the said act h con ( >) Si-c Apjiendix \o- f! 382 APPENDIX. stitutionally binding upon them, whether they accept its provisions or not ; and that the gentlemen appointed as trustees under the act are constitutionally vested by it, with the rights and privileges granted by the charter of 1769. Against this opinion they observe, that by the char- ter of 1769, the trustees of Dartmouth College, in the lan- guage of the law, " by incorporation acquired jus persona and became persona politica, and capable of all civil rights," and were rendered capable of holding real and per- sonal estate, and of enjoying the rights and privileges recit- ed in the said charter. In the same charter it is declared that " the whole number of trustees shall forever thereafter consist of twelve and no more," and that the said trustees and their successors, so often as any one or more of the said trustees shall die, &c. shall elect and appoint such trustee or trustees as shall supply the place of him or them so dy- ing, &c. Here then was a grant of powers and privileges made on the part of government to the twelve persons named in the charter and their successors, which was accepted upon the part of the trustees. The rights and privileges thus grant- ed, became vested. Every thing was done which could be done by the government to clothe the grantees with the powers, privileges, and immunities of an incorporation ; and among others the powers and privileges of acquiring and holding property, and of perpetuating its own existence, by a successive election of members, for the security and con- tinuance of those powers and privileges in their successors; and for the application of such property as they might ac- quire to the purposes and objects for which they were in- corporated; all property which they have acquired by pur- chase or donation has become vested in them in trust, that its avails, shall be applied to the objects for which it was purchased or given agreeably to the principles of their charter. APPENDIX. 383 The trustees having, by the charter, become a body pol- itick, a person known in law, they cannot, without a viola- tion of the constitution of this state, " be despoiled or de- prived of their property, immunities or privileges, or put out of the protection of the law, but by the judgment of their peers, or the law of the land." And as a person known in law, they are constitutionally entitled, in common with their fellow citizens, to atrial by jury, when any matter is alleg- ed against them as cause of forfeiture of their property, powers, rights, privileges, or immunities. This grant having been made by the charter of 1769, and accepted by the trustees named in the instrument, it be- comes a contract, and irrevocable on the part of the govern- ment in its very nature, so long as its terms are complied with. It may be surrendered or forfeited. If forfeited, a judicial enquiry must be had, according to the constitution and laws of the state. It is not competent for the legisla- ture to decide the question of forfeiture. The constitution forbids it, and refers it to the judicial department of govern- ment. Any act of the legislature, altering or impairing the con- tract without the consent of the trustees, must, we ap- prehend, be considered by the judicial tribunal a violation of the 10th section of the first article of the constitution of the United States, which declares, " No state shall make any law impairing the obligation of contracts." The said act of the legislature, which passed without the consent of the trustees, is intended to enlarge the number of their body from the charter number of twelve to that of twenty-one, and contrary to the provisions of the charter gives the appointment of the nine additional trustees to the governour and council, and also gives to the governour and council the power to fill all vacancies that may occur pre- vious to or during the first meeting of the said board of trustees; and declares, that the trustees, as constituted by riaid act, shall hold, use, excrcixc, and enjoy all the powers, 384 APPENDIX. authorities, rights, property, &c. which have hitherto been possessed, enjoyed, and used by the trustees of Dartmouth College. Unless we greatly err, these and other provisions, of said act, if carried into operation without any trial by ju- ry, without any forfeiture judicially declared, and without our consent, are palpable violations of the contract be en the government and the grantees under the charter of 1769, and thus far a revocation of the grant to the trustees of Dartmouth College and their successors. If the act under consideration has its intended operation and effect, every literary institution in the state will hereaf- ter hold its rights, privileges, and property, not according to the settled established principles of law, but according to the arbitrary will and pleasure of every successive legisla- ture. We cannot see the expediency of accepting the provis- ions of the said act, considering the circumstances under which it passed, and considering the unwieldy number of overseers and trustees it proposes, and the great increase of expense it will necessarily occasion. After much consideration we are decidedly of opinion that the act before recited is unconstitutional, and that its tendency, in point of precedent and principle, is dangerous to the best interests of society, and to those principles on which depend the prosperity of all the civil and literary in- stitutions of our country. — We therefore deem it our indis- pensable duty to resolve, and it is hereby Resolved, That we the trustees of Dartmouth College, do not accept the provisions of an act of the legislature of New- Hampshire, approved June 27th, 1816, entitled " An act to amend the charter, and enlarge and improve the corporation of Dartmouth College," but do hereby expressly refuse to act under the same. A true copy from the records. Attest, MILLS OLCOTT, Sec'ry. APPENDIX. 385 Note (a) The following are extracts : — " They in the most respectful manner, remonstrate against the passage of the bill under consideration, for the follow- ing reasons : — "Should the bill become a law, it will be obvious to our fellow citizens tkat the vrustees of Dartmouth college will have been deprived ri their charter rights with- out having been summoned or notified of any su«h proceeding against them. It will be equally obvious to our fellow citizens, that the facts reported by the com- mittee of investigation did not form the ground and basis of the new act of incorpo- ration ; and that no evidence of facts of any 6ort, relating to the official conduct of the trustees, other than the report of the committee of investigation, was submitted to your honourable bodies. To deprive a hoard of trustees of their charter rights, after they have been accused of gross misconduct in office, without requiring any proof whatever of such misconduct, appears to your remonstrants unjust and not conformable to tlie spirit of the free and happy governmerit, under which we live. To these remarks, it cannot be considered a satisfactory answer, that the design of the legislature was to improve the condition of the college, and that it was no part of their design to express disapprobation of the official conduct of the trustees ; for the simple fact of depriving the trustees of their charter rights, and of removing a part of them from office by law, after having been charged with gross misconduct, gives a contradiction to such an answer, and in the strongest language. The under- signed humbly believe, that the majority of the trustees, in common with their fel- low-citizens, are entitled to a fair trial, where they can meet their accusers face to face, before they can rightfully, by the legislature of the state, be denounced to the world in express terms, or by necessary implication, as having violated the sacred trust committed to their charge. lithe lull be understood by the legislature as a. condemnation of the trustees, the undersigned would fain persuade themselvesthat the honourable house and senate, will not pass it till they have cited the trustees to appear before them, and given them time to meet and act upon the citation, and to '.•e heard by themselves and counsel. " The undersigned respectfully remonstrate against the passage of the bill, re- ferred to, on the ground of want of legitimate power to dissolve, in this matoner, the corporation of a literary institution, not founded by the state, without judicial nquiiy. The charter of Dartmouth jcollege vests certain rights of property, for particular iwes, in the trustees. The sovereign power having once made this grant, oannot, as the trustees humbly conceive, devest them of it, so long a3 they exercise -heir trust in conformity to the true intent and meaning of their charter. They re- spectfully call to the view of tlie honourable legislature, that Dartmouth college was not founded by the then existing sovereign. It was founded awl endowed by liberal individuals ; and the charter was given by the sovereign, to perpetuate the application of the property conformably to the design of tbedonors- It the pi-oper- tyhus been misapplied, if there baa been any abuse of power upon the part of •he trustees, they are fully sensible of their high resjionsibility ; but they have al- . lieved, i-.M mill believe, that a sound construction or the powers granted t(. «hc legislature, giv«>s fh.-.m, in this tfue, only the right to order for good t ause, ; prosecution in the .ndicial eourts. A differed course effectually blends .judiojtf i I ;rida«jv. pevers, and cors'iv.-' • •!» b.;':i!.i"i".- a ;i#ci*1 tribunal :<(•■ ^3fr Al'FEttDlX. " The undersigned also beg leave to remonstrate against the passage of the bili on the ground of inexpediency. " A corporation is a creature of the law, to which certain powers, rights aud privileges, arc granted ; and amongst others, that of holding property. Destroy This creature, this body politick, and all its property immediately reverts to its form- er owners. This doctrine has long been recognised and established in all govern- ments of law. Any material alteration of the corporation, without its consent, and certainly such essential alterations as the bill under consideration is intended to make, will be followed with the same effect. The funds belonging to the college, although not great are highly important to the institution ; and a considerable pro- portion of them were granted by, and lie in, the state of Vermont. The undersign- ed most earnestly entreat the honourable legislature not to put the funds of the college in jeopardy —not to put at hazard substantial income, under expectations which may or may not be realized. 'The revolution whioh this bill, if carried into operation, will produce, is not demanded by any present exigency, or any threatening danger. The college is as flourishing in respect to the number of students, to scholarship, and to habits of industry and good order, as it has been in former times. The committee of investi- gation, in their report, (page 33) testify, " For several years past, the members ot college have been more attentive to their studies and classical exercises, more regu- lar in thcirconduct,and less inclined to dissipation of any sort,than in former times." By a document of the college treasurer, accompanying the report, it appears that the income ol the college exceeds the expenditures, "To the report of the committee of investigation, the undersigned, in behalf of themselves and fellow trustees, appeal for their justification against the char- ges exhibited against them in Dr. WheelOck's Memorial. They rely, with great confidence,that the report aforesaid will be attended toby the honourable legislature and an impartial publick, a« evidence entitled to the highest consideration. By a reference to the memorial, it will be seen, that the trustees are charged direct- ly or indirectly with having exercised religious intolerance ; with having system- atically promoted one sect or party, with political objects dangerous to government. Dr. Wheelock alleged in the said memorial, that the trustees have misapplied the funds of the college ; that they have invaded the rights of the presidential office ; that they used improper means in the appointment of executive officers ; that they have formed an unjustifiable connexion with an academy ; and improperly furnish- ed students thereof with aids from the college treasury ; that they have obstructed the application of the funds of Moor's Charity School, according their original des- tination ; that they have oppressed him in the discharge of his office as president. These are heavy charges ; and if they were founded in truth, the trustees deserre ihe severest reprobation. But if they were framed through a mistaken appre- hension of motives and actions, or with the unjustifiable object of exciting popular odium against the trustees, to effect their removal from office, in either case com- mon justice requires that the trustees should not be permitted to suffer by tlui sU fence of the legislature, and most assuredly that a la-cu should not be passed which .:•/// be deemed by t/ie publick an expression of legislative condemnation. APPENDIX. 381 " The undersigned respectfully remonstrate against the passage of the proposed bill, because it is unprecedented. Never have they heard, that the legislature of any state, in which existed a proper division of power, has deprived the corpora- tion of a college, or university not founded by the state, of its charter rights, and erected a new one upon its ruins. The conatituting of" two large bodies, as con. templated by this bill, will render necessary a very serious augmentation of ex- penditures. These numerous bodies, we think., will need twice as much time for transacting the ordinary business of a session^ as has been employed by the existing trustees. '' The union of the whole community, in support of the college, must be highlv desirable in the view of every well-wisher to the cause of literature and U3efu! knowledge. — If the provisions of this bill should take effect, we greatly fear that the concerns of the college will be drawn into the vortex of political controversv. — Our literary institutions hitherto have been preserved from the influence of party. The tendency of this bill, unless wc greatly mistake, k to convert the peacefnl re- treat of our college into a field for party warfare. If a union of the friends of litera- ture and science, of all parties and sects, cannot be attained ; if the triumph oi one party over the other be absolutely indispensable ; fearful apprehensions must fill the mind of every considerate man— every dispassionate friend of Dartmouth college." June 19th, 1S1G. No IK (b) The following arc extracts — " To many of the topics of argument sug- gested in their former remonstrance, (which arc: equally applicable against the passage of the bill in. its present shape) they respectfully ask leavo to add, that " By the charter of Dartmouth college a contract w;rn an 39G APPENDIX. assumption of Ihelr privileges, and an interference with the -will of Ihe donors"(l). — In the discussion of this bill in the house of lords, Lord Chancellor Eldon said " there were in ihe country numerous and splendid charities, founded by munificent donors ; and cujus est dare, ejus est disponere; and such charities ought only to be under the domksticum forum of the visitors nominated by the founders, and courts of law ought to have nothing to do with them, tin I ess they abused their trust ; and he would resist to the utmost all legislative interference with their duties, and should be glad to know where was the power of parliament to interfere in such cases."— The foregoing provision in the statute of 58 Geo. III. is little else than a transcript of the second and third sections of the statute of Charitable Uses (43 Eliz. ch. IV.) The last of these sections is as follows — " And provided also that this act nor anj thing therein shall extend to any city, or town corporate, or to any of the lands or tenements given to the uses nforesaid within any such city or town corpo- rate, where there is a special governour or governours ap- pointed to governor direct such lands, tenements, or things disposed to any of the uses aforesaid ; neither to any col- lege, hospital, or free school, which have special visitors, or governours, or overseers appointed them by their foun- ders."— (I) Vol. 19 Qu. Rev. 517. APPENDIX, No. V. HARVARD COLLEGER incorporated with aboard of overseers, having a check upon some of the proceedings of the corporation, which is composed of governours or trustees, by the name of the President and Fellows of Harvard Col- lege. By the statute 1809, ch. 113, entitled " An Act to alter and amend the constitution of the Board of Overseers of Harvard college," the legislature of Massachusetts, with the consent of both boards, made some alterations in the board of overseers. By another act passed February 29, 1812, without the consent of either board, the first men- tioned act was repealed, and the board of overseers consti- tuted as before its enactment. The corporation and over- seers remonstrated against the repealing act, and it was it- self soon after repealed. The following is an extract from the remonstrance. " The legislature of 1809 were careful to preserve the ancient foundation of the college unimpaired, and to pre- vent all ground for the apprehension, that ihe chartered privileges of the college are less sacred in the eyes of the present generation than they have been in the eyes of our predecessors. They made this alteration in such a manner that the legal rights of the college could not be injuriously affected, for they annexed to the act the condition, that i< should go into effect, when the provisions of it should be ac- cepted by the two college boards. It is a principle admit ted, that a coporation may. with its consent, be altered by a 398 APPfcNMX. legislature uot specially or constitutionally restricted. For several reasons it was considered, that this principle must be applied in the present instance, and that without the con* sent of the boards, the alteration could not be made. It oc- curred, that so far as the constitution is concerned, the pow- ers of the college government rest on the same foundation, and have the same authority as the power of the legislature. This constitution reserves to the legislature so much con- troul over the college government, as respects the overseers, as might have been exercised by the provincial legislature. In regard to the extent of this controul, the provincial legis- lature, it is believed, could not make the alteration proposed without the assent of the existing college government, for the college was established by the same province charter, by which the legislature was created. The general court de- riving its authority from the provincial charter, could not le- gally controul the rights of others derived from the same charter, since this would be to rescind a part of the char- ter, which was the very foundation of the legislative powers of the province, and to annul the very authority by which the general court existed. Further the corporation is admitted, on all bands, to be confirmed by said province charter. But the corporation in the exercise of its pow- ers, was subject to the controul of a board of visitors, designated by the same authority by which it was created. To this controul the said corporation must, of right submit : and, without its own consent, to no other controul whatever. To establish any other controul over this body, would be an alteration of its power, to which no authority is compe- tent, unless it can lawfully annihilate the corporation. — These and other principles could not fail to be considered as fixing boundaries to the power of the provincial legisla- ture over the co'lege government. If even the rights of the college had not been confirmed by the charter of William and Mary, and if the corporation had been created by the APPENDIX 399 general court, established expressly by that charier, whose powers were not expressly limited by any declaration of rights, it could not then be admitted that the legislature of the late province of Massachusetts Bay could legally al- ter the powers of the corporation without its consent, un- less it could be admitted that the same legislature could legally repeal its own grants, and annul the rights of any inhabitants derived from such grants. The reasoning, to which the several views of the subject led, is confirmed by the practice of a century. The general court have con- firmed and enlarged, but never impaired, or abridged the powers of the college government. Whenever the question arose, they appear to have put the same construction upon their powers of alteration, which the legislature who passed the statute of 1809, adopted : For example, in 1792, \\ic overseers petitioned that the corporation might be enlarged ; but the corporation not consenting, the house of representa- tives refused to grant the petition.* Attempts were after wards made, to persuade the general court to exercise the visitatorial power, and to interfere with the doings o f e overseers but without effect. " On these grounds the legislature were anxious when in 1809 they purposed to give the college the benefit of an improved constitution of the board or overseers to save all the chartered rights of the college. The former board under the legislative sanction, divested themselves of their trust in favour of the present overseers. These overseers, it is believed, have succeeded to all the rights and powers which belonged to their predecessors in the same office ; and hold these rights and powers by a permanent tenure, subject only to the implied condition of a faithful execution of the trust. The provision in the third article of the fifth chapter of the constitution of the state which reserves to the legislature the same power in respect to the government of * Iteetirrta of elm Overseers \7'>'? 400 APPENDIX. the college, as pertained to the legislature of the late prov- ince, must in any interpretation include a power extending to such alterations iu the board of overseers as should be made with the consent of both college boards, on whom such alteration was to operate. Such consent having been pro- vided for by the statute 1809, and given by the said boards, the corporation created pursuant to said act, have, as your memorialists believe, acquired rights, of which they cannot be deprived, but by their own consent, or by some legal process founded on a charge of misbehaviour." Constitution of the University at Cambridge p. 29. APPENDIX, No. VI. In the year 1763, an attempt was made by a number of gentlemen to procure the legislature of Connecticut to inter- fere with the government of Yale College, against the con- sent of the corporation. In their memorial they represent- ed, that the general assembly were the founders of the col- lege, and had a right to appoint visitors, and reform abuses. This right, they suggested, ought to be seasonably and most explicitly asserted and vindicated, otherwise the college might become too independent. They therefore prayed that the said assembly would pass an act, to authorize an appeal from any and every sentence given by the authority of the college, to the governour and council of the colony and issue forth a commission of visitation, enabling some suitable persons to enquire into all the affairs of said college, and either of themselves rectify abuses, or make report of what they should find, with their opinions thereon, to the said assembly, at their next session. The counsel for the memorialists were Jared Ingersoli and Samuel W. Johnson, Esquires, the two most learned and famous attornies of that day, in the colony. Great ex- pectations were formed by the enemies of the college from this measure, and the great ability of their counsel; and its friends were not without fears and anxieties. That class of people, who had been so long and so strongly opposed o thejrollege, fluttered themselves with the pleasing pros- 402 APPENDIX. pect of bringing it to their feet, and of amply reaping the fruit of their past labours. The Rev. Thomas Clap, the learned president of the college, viewed the cause of too great consequence to be trusted in any hands but his own ; and judged it his duty to the founders of the college, to employ his talents for its de- fence, and to plead the cause himself in the face ot all op- position. This task he executed with uncommon ability and success. The counsel for the memorialists alleged that the general assembly founded the college by giving a charter in the year 1701, which contained a donation of about 60/. sterling to be annually paid out of the publick treasury, and by sun- dry subsequent donations, especially five tracts of land in the year 1T32 ; and that the present assembly, as succ a sors to the founders, had a right of visitation, by the com- mon law. To which the president replied ; — " That the general assembly, in their legislative capacity, have the same au- thority over the college, and all the persons and estates be- longing to it, as they have over all other persons and estates in the colony ; and all that power, which is necessary for the good of the college, or the general good of the commu- nity. And that an especial respect and gratitude is due to them as its greatest benefactors ; yet they are not to be considered as founders or visitors in the sense of the com- mon law. That the first trustees, undertakers, and inspec- tors, who were nominated by the ministers with the general consent of the people, and by compact became a society or quasi corporation (as my lord Coke says) near two years before they had a charter, were ihefounders of the college; and that they formed it by making a large and formal do- nation of books, above a year befo. e they had a charter from the government. That the college had a being, not only in fieri, in the purpose and intention of the mideriak- APPENDIX. 403 ers (as lord Ooke says,)(l) but in esse, by the donation of books, money, and land, actually made to it before it had a charter. That major Fitch of Norwich, made a donation in writing, to the undertakers, of six hundred acres of land, and some materials to build a college house, in the time of the sitting of the assembly, some days before the charter was given. And this donation he made to the collegiate school as 'already set up by the great pains and charges qfi the ministers." — That the king, by giving a license to found a college, does not Uiereby in law become the founder in} sensu dotationis ; and that he is the founder only of those colleges or hospitals, to which he makes the first donation for founding. My lord Coke distinguishes between Funda- tor Incipiens and Fundator Perficiens ; and says, that he only is the founder quoad dotationem (to whose heirs orsuc- cessors the law gives the right of visitation,) who makes the first donation^!). And the right of visitation arises in law, from the interest which the founder has in the college or hospi- tal by his donation. For if it be essentially perverted from the design, for which it \va3 given, the donation becomes void, and revert3 to the donor or his heirs. That the first dona- tion only creates the founder, and all subsequent donations are presumed in law to be given for the same end and de- sign with the fust, unless some particular limitation be ex- pressly made. " That if a common person makes a donation to found a college or hospital, though ever so small, and the king after- wards endows it with large possessions, yet the common person is the founder and not the king(3). " That a license to found, and a charier of incorporation, are in their own nature distinct. Either may be first in fciw, (yet they are oftentimes both contained in the same in- f l) Coke 10 Rep. (2;C'»kf 10 Rep. (Sj Wwl't. Irntitute* 404 APPENDIX. strument,) and may precede or succeed the first fundament- al donation. " When the fundamental donation is made before the li- cense to found, there the license is only a formal and ex- plicit confirmation from the crown, of what was before done by the general license given by the common and statute law, whereby every man may give his estate for publick, pious, and charitable uses, upon such conditions and regulations as he shall see cause(4). And the feoffees in trust are the legal proprietors of such donations, according to the condi- tions and limitations with which they are made ; and have a legal right to hold and lease, and to dispose of the profits as a quasi corporation, for those particular purposes ; and may, by a long course of stated and regular conduct, be- come a complete legal corporation by prescription. And the king's charter or license only makes or declares that to be a legal corporation, at the first, which may become such by immemorial usage and custom.—- " In a license to found, the words found, erect, or any other words of the like import, are indifferent in law, and sufficient to make a foundation ; and in the first charter or grant to the college, these words are promiscuously used and applied to the first trustees only. The first charter plainly supposes ten trustees, partners, or undertakers an- tecedently existing ; and a school already founded in fact, (though not fully and completely so in law) by donations of lands, goods, and monies, before given ; and therefore gives them a full legal right, liberty, and privilege to proceed in erecting, endowing, and governing the school, which they had a general and imperfect right to do by the common law. And the charter declares them to be in a legal ca pacity to " demand, have, hold, and possess all such lands, goods, and monies, as have heretofore been given, (as well as those which might hereafter be given, for the founding*, erecting, aud endowing the said school," (4) See 39 Eliz. o. 5. and Connecticut Laws- APPENDIX. 105 " And there is no intimation, that their giving to the first trustees a right to receive sixty pounds out of the publick treasury a year after, and annually, and to improve it, at their discretion, for the good of the school, should be deem- ed the founding of it ; to be sure not in such a sense as to annul the former foundation ; much less could any endow- ments made thirty years after make them the founders in the sense of the common law. Besides, the preamble to the charter of 1T45 expressly says that the first trustees /omitt- ed! the college " The power of visitation is, by the common law, ex- pressly limited to the statutes of the founder (5), which are the conditions or limitations of the use of the founder's do- nation ; and the visitor can do nothing but rectify those things, which are plainly repugnant to those limitations, or claim a forfeiture. But as no such statutes made by the general assembly can be found, such visitors would have no power at all, or be altogether arbitrary, like the visitors sent to Magdalen College by king James II. — " If it should be supposed, that there is any need of over- seers, under the name and title of visitors, the first trustees and their successors may properly be denominated such ; and in the first plan of the college, they are expressly called inspectors. That to have visitors over visitors or inspec- tors, would make endless trouble and confusion. That mat- ters of property must be determined by the stated execulivt: courts, according to the course of the common law ; but to erect any new kind of court over the affairs of the college, which are committed to the president and fellows, would be an infringement of their charter-." — When the arguments had been fully heard and consider- ed, there were but a very small number of the general as- sembly, who were of the opinion that they were {he founders of the college : and so they acted nothing upon the memorial. (:">) Lord Raymond'* Reports, Vol. 1. p. 7. 106 APPENDIX. The historian adds, "The memorialists, and their whole part}', were greatly disappointed and chagrined, and the president got much honour by the defence, which he made of the college. He appeared to be a man of extensive knowledge and real greatness. In points of law, especially a3 they respected colleges, he appeared to be superiour to all the lawyers, so that his antagonists acknowledged that he knew more, and was wiser than all of them. The question relative to the assembly's being the founders of the college, and having a right of visitation, has never been publickly dis- puted since, and it is believed that it never will be again." Trumbull's History of Connecticut, Vol. 2. p. 327 to 333.— Clap's Annals of Yale College, p. 69 to 77. UNIVERSITY OF CALIFORNIA LIBRARY Los Angeles This book is DCTB on- the lasjTi%te stamped below. fc??,2419tt. NOV? e 1952 w i i mi *rr 1 3 rem" RETD BOOK BOt JUL 2 8 i962 MAY 2 7^' ten*!) COL. LTB. <* NOV 1 G 19G| NOV 12 1965 MAY 1 1 A :'.! FormL9-42m-8,'49(B5573)444 KKhai JAN 05 198) " NOV 2 6 1985 toW •ia^9 ujajw- TD ■|^ae\97^ " 5 1&*7\ BOX "58 8.5 q MARS- ORJON U>/URL JAAI0 6 30 REC ^Td EC'D CD-URL *BVl81994 ^ UC SOUTHERN REGIONAL LIBRARY FACILITY A A 000 133 038 o