| 17
U.S. 518 4 L.Ed. 629,
4 Wheat. 518 (Cite
as: 17 U.S. 518) Supreme
Court of the United States TRUSTEES
OF DARTMOUTH COLLEGE v. WOODWARD. February
2, 1819 West
Headnotes Charities
k1 75k1 Corporations
k3 101k3 A
college whose charter declared that its purpose was to spread Christian knowledge
among the Indians, and establish the best means of education in a certain province,
for the benefit of the province, and whose trustees or governors were originally
named by the founder, and invested with the power of perpetuating themselves,
is an eleemosynary corporation. Charities
k1 75k1 Corporations
k3 101k3 Corporations
aggregate consist of those for public government, such as those for government
of a town, city or the like, and those for private charity subject to private
government of those who erect them. Charities
k1 75k1 Corporations
k3 101k3 The
fact that a corporation is established for the purpose of general charity, or
for education generally, does not per se make it a public corporation. Charities
k39 75k39 Colleges
and Universities k1 81k1 Hospitals
k1 204k1 Eleemosynary
corporations are such as are constituted for the perpetual distribution of the
free alms and bounty of the founder, in such manner as he has directed; and in
this class are ranked hospitals for the relief of poor and impotent persons, and
colleges for the promotion of learning and piety and the support of persons engaged
in literary pursuits. Charities
k39 75k39 Subscriptions
k10 367k10 Where
corporation for which charter was granted by crown was expressly created to distribute
in perpetuity charitable donations of private benefactors, and trustees by terms
of charter were to manage fund contributed, there was an implied contract, as
soon as donation was made to corporation, that the crown would not revoke or alter
charter or change its administration without consent of corporation, and there
was an implied contract between corporation and every benefactor that it would
administer contributions for objects stipulated in charter. Charities
k39 75k39 Colleges
and Universities k11 81k11 Dartmouth
College, under its charter, is a private, and not a public, corporation; and though
the charter was granted to the trustees, by the British crown, in 1769, it was
not dissolved by the Revolution. Charities
k39 75k39 Colleges
and Universities k3 81k3 The
stipulations of charter for college granted by British crown by which founder
agreed by implication that school should be removed from his estate to New Hampshire,
that he would relinquish all control over funds to be collected therefor, that
he would yield up management thereof to trustees, that he would devote his patronage
to college and that he would devote his future services thereto established consideration
for the grant. Charities
k39 75k39 Colleges
and Universities k1 81k1 Hospitals
k1 204k1 A
college is a private charity as well as a hospital, and both are eleemosynary. Charities
k39 75k39 Corporations
k3 101k3 That
a charity is public does not establish that the corporation administering it is
also public. Charities
k39 75k39 Corporations
k1.1(1) 101k1.1(1) The
mere act of incorporation will not change a charity from a private to a public
one. Charities
k39 75k39 Colleges
and Universities k1 81k1 Hospitals
k1 204k1 A
college or hospital founded by a private benefactor is a "private corporation"
although dedicated by its charter to general charity. Charities
k40 75k40 Constitutional
Law k125 92k125 Where
a private eleemosynary corporation is created by charter of the crown, it is subject
to no other control on part of the crown than what is expressly or implicitly
reserved by charter itself and, in absence of reservation for that purpose, crown
cannot, without consent of corporation, alter or amend charter or divest corporation
of any of its franchises, add to them, add to or diminish number of trustees remove
any of members, change or control administration of charity or compel corporation
to receive new charter. Charities
k40 75k40 Franchises
k13 183k13 An
eleemosynary corporation is subject to general law of the land and may forfeit
its corporate franchises by misuser or nonuser of them. Charities
k41.5 75k41.5 (Formerly
75k411/2) Colleges
and Universities k1 81k1 Where
purpose of contributions to chartered college was the propagation of the Christian
religion among the savages, fact that college was to be located in New Hampshire
and that New Hampshire would benefit from establishment thereof, did not place
beneficial interest therein in the people of New Hampshire so as to make it a
public corporation subject to control of state legislature. Charities
k42 75k42 Charities
k44 75k44 A
private charitable corporation is subject to control laws and visitation of its
founders and not to general control of government. Charities
k42 75k42 Colleges
and Universities k1 81k1 A
college, founded by private benefactors, is not constituted a public corporation,
controllable by the government, by receiving a charter from the government, though
the funds may have been generally derived from the bounty of the government. Charities
k43 75k43 Corporations
k393 101k393 Where
visitorial power is vested in trustees of charity, they are not beyond reach of
the law, but as managers of revenues of corporation, they are subject to general
superintending power of court of chancery, not as possessor of a visitorial power,
but as possessing a general jurisdiction to redress grievances and suppress fraud
in case of abuse of trust. Charities
k43 75k43 Corporations
k393 101k393 Trusts
k166(2) 390k166(2) Where
a corporation is a mere trustee of a charity, a court of equity, although it cannot
appoint or remove a corporator, will in case of gross fraud or abuse of trust
take away the trust from the corporation and vest it in other hands. Charities
k43 75k43 Colleges
and Universities k5 81k5 The
trustees of college for which corporate charter had been obtained were amenable,
as managers of property and revenues of corporation, to jurisdiction of judicial
tribunals of state, but as visitors, their discretion was limited only by charter
and was liable to no supervision or control, unless it was fraudulently misapplied. Charities
k44 75k44 The
founder of eleemosynary corporation and his heirs are of common right the legal
visitors, unless founder has appointed another person to be visitor, and in case
of assignment of visitorial power, the assignee thereof possesses it is exclusion
of the founder's heirs. Charities
k44 75k44 An
eleemosynary corporation is subject to controlling authority of its legal visitor
who, unless restrained by terms of charter, may amend and repeal its statutes,
remove its officers, correct abuses, and generally superintend management of the
trusts. Charities
k44 75k44 Colleges
and Universities k5 81k5 Where
founder of college obtained corporate charter therefor from British crown and
assigned the government and control of college to the trustees in their corporate
character, the visitorial power rightfully devolved on the trustees. Charities
k44 75k44 Where
trustees or governors of charity are incorporated to manage the charity, the visitorial
power is deemed to belong to them in their corporate character. Charities
k44 75k44 Property
k2 315k2 The
visitorial power attaching to all eleemosynary corporations is an hereditament
founded in property, valuable in intendment of law and includes the legal right
of patronage. Charities
k44 75k44 A
visitorial power attaches to all eleemosynary corporations to visit, inquire into,
and correct all irregularities and abuses therein, and to compel the original
purposes of the charity to be faithfully fulfilled. Colleges
and Universities k3 81k3 Constitutional
Law k125 92k125 That
the first trustees of corporation created for educational purposes were named
by the British crown did not prevent contract, to which donors to the educational
enterprise, the trustees, and the crown were original parties, from being within
constitutional provision prohibiting states from passing laws impairing contractual
obligations. U.S.C.A.Const. art. 1, § 10. Constitutional
Law k45 92k45 Constitutional
Law k113 92k113 Under
constitutional provision prohibiting any state from passing any laws impairing
obligation of contracts, Supreme Court has duty of protecting from even legislative
violation those contracts which constitution has placed beyond legislative control.
U.S.C.A.Const. art. 1, § 10. Constitutional
Law k48(3) 92k48(3) The
Supreme Court in a doubtful case will not pronounce a legislative act to be contrary
to constitution. Constitutional
Law k113 92k113 Constitutional
Law k145 92k145 The
constitutional provision prohibiting states from passing laws impairing contractual
obligations does not embrace contracts other than those which respect property
or some object of value, and confer rights which may be asserted in a court of
justice. U.S.C.A.Const. art. 1, § 10. Constitutional
Law k113 92k113 It
was not intended by constitutional provision prohibiting states from passing laws
impairing contractual obligations to create any new obligations or give any new
efficacy to nude pacts, but it was intended to preserve all obligatory force of
contracts which they had by the general principles of law. U.S.C.A.Const. art.
1, § 10. Constitutional
Law k113 92k113 Constitutional
Law k117 92k117 Under
constitutional provision prohibiting states from passing laws impairing obligation
of contracts, it was not intended to restrain states in regulation of their civil
institutions adopted for internal government. U.S.C.A.Const. art. 1, § 10. Constitutional
Law k113 92k113 Constitutional
Law k145 92k145 The
constitutional provision prohibiting states from passing laws impairing contractual
obligations is not limited to grants and contracts under which parties take for
their own private benefit. U.S.C.A.Const. art. 1, § 10. Constitutional
Law k113 92k113 All
incorporeal hereditaments, whether they be immunities, dignities, offices or franchises,
are deemed valuable in law, and whenever they are subjects of a contract or grant,
they are as much within the reach of constitutional provision prohibiting states
from passing laws impairing contractual obligations as any other grant. U.S.C.A.Const.
art. 1, § 10. Constitutional
Law k113 92k113 Constitutional
Law k145 92k145 Religion,
charity and education are not of so little estimation that contracts for their
benefit must be excluded from protection of constitutional provision prohibiting
states from passing laws impairing contractual obligations. U.S.C.A.Const. art.
1, § 10. Constitutional
Law k115 92k115 Constitutional
Law k129 92k129 An
act of the legislature which takes away any powers or franchises vested by charter
in a private corporation or in corporate officers, or which restrains or controls
the legitimate exercise of them, or transfers them to other persons without consent
of corporation violates obligations of charter. Constitutional
Law k115 92k115 Constitutional
Law k125 92k125 That
New Hampshire statute amending charter of Dartmouth College did not take power
of governing college from trustees thereof directly, but effected that result
through the agency of new trustees and overseers was immaterial, as respects whether
statute violated a contractual obligation. Constitutional
Law k120 92k120 Constitutional
Law k145 92k145 A
grant is a "contract" within constitutional provision prohibiting states from
passing laws impairing contractual obligations. U.S.C.A.Const. art. 1, § 10. Constitutional
Law k125 92k125 Constitutional
Law k129 92k129 The
charter granted by the British crown to the trustees of Dartmouth college, in
New Hampshire, incorporated 12 persons as trustees, and granted to them and their
successors the usual corporate privileges and powers, and declared that the trustees
should forever thereafter consist of 12, and no more. Held, that a statute of
New Hampshire increasing the number of trustees to 21, and giving the appointment
of the additional members to the executive of the state, being passed without
the previous or subsequent assent of the trustees, was unconstitutional and void. Constitutional
Law k125 92k125 Corporations
k9 101k9 The
charter of a corporation created by the state is a contract, and is in all particulars
inviolable, unless in the charter itself, or in some general or special law to
which it was taken subject, there is a power reserved to the legislature to alter
or amend. Constitutional
Law k125 92k125 Constitutional
Law k128 92k128 Where
franchises granted by charter creating college were vested in trustees thereof
in their corporate character, and lands and other property subsequently acquired
were held by trustees in the same manner, the trustees were vested with a sufficient
beneficial interest as to bring charter within purview of constitutional provision
prohibiting states from passing laws impairing contractual obligations. U.S.C.A.Const.
art. 1, § 10. Constitutional
Law k125 92k125 Corporations
k9 101k9 The
charter granted by the British crown to the trustees of Dartmouth College, in
New Hampshire, in the year 1769, is a contract within the meaning of a clause
of the constitution of the United States, which declares that no state shall make
any law impairing the obligation of contracts. Constitutional
Law k125 92k125 Corporations
k393 101k393 Corporations
k394 101k394 (Formerly
101k394.1) The
validity and justice of laws of a civil corporation are examinable by court having
jurisdiction over it, and such corporation may be controlled and its constitution
altered and amended by government in such manner as public interest may require,
and such interference impairs no contract. Constitutional
Law k125 92k125 Corporations
k9 101k9 The
creation of a corporation for educational purposes by charter was such a grant
as constituted a "contract" within constitutional provision prohibiting states
from passing laws impairing contractual obligations. U.S.C.A.Const. art. 1, §
10. Constitutional
Law k125 92k125 Corporations
k9 101k9 That
corporation created by charter granted by the crown was not then in existence
did not prevent the charter from being construed as a contract within constitutional
provision prohibiting states from passing laws impairing contractual obligations.
U.S.C.A.Const. art. 1, § 10. Constitutional
Law k125 92k125 Constitutional
Law k145 92k145 The
application to the crown for a charter to incorporate a religious and literary
institution for which large contributions had been made, the granting of the charter
and the conveyance of property on the faith of the charter constituted a "contract",
as respects whether that contract was within constitutional provision prohibiting
states from passing laws impairing contractual obligations. U.S.C.A.Const. art.
1, § 10. Constitutional
Law k125 92k125 Corporations
k9 101k9 That
original founders of college, which had obtained charter from crown, had no further
interest in property contributed by them, that students were fluctuating and without
vested interest and that trustees of college had no beneficial interest to be
protected, did not prevent contract, to which the donors, trustees and the crown
were original parties, from being within constitutional provision prohibiting
states from passing laws impairing contractual obligations. U.S.C.A.Const. art.
1, § 10. Constitutional
Law k129 92k129 Corporations
k3 101k3 That
a corporation is established for the purpose of education generally, does not
per se make it a public corporation liable to the control of the legislature. Constitutional
Law k134 92k134 Urban
Railroads k1 396Ak1 (Formerly
364k18 Street Railroads) City
ordinances made in pursuance of law, and granting to a corporation the right to
build and operate street-railway lines in the city, after acceptance by the corporation
and the expenditure of large sums of money on the faith thereof, constitute a
contract protected by U.S.C.A.Const. art. 1, § 10, forbidding states to make any
law impairing the obligation of contracts. Constitutional
Law k140(1) 92k140(1) Officers
and Public Employees k1 283k1 Except
so far as the constitution may protect them from interference, offices are neither
grants, nor contracts, nor obligations which cannot be changed or impaired. The
term, duties, and compensation thereof are subject to the legislative will. The
office may be abolished, or the duties and compensation incident thereto may be
taken away from the incumbent, and given to another. Constitutional
Law k145 92k145 Contracts
k1 95k1 Contracts
k6 95k6 A
contract is either "executory" or "executed"; by an "executory contract" a party
binds himself to do or not to do a particular thing, and an "executed contract"
is one in which the object of the contract is performed. Constitutional
Law k145 92k145 Contracts
k1 95k1 A
"contract" is a transaction between two or more persons in which each party comes
under an obligation to the other, and each reciprocally acquires a right to whatever
is promised by the other. Constitutional
Law k145 92k145 Contracts
k6 95k6 A
"contract executed" is one in which the object of the contract is performed, and
differs in nothing from a grant. Contracts
k1 95k1 An
"executory contract" is one in which a party binds himself to do or not to do
a particular thing. Implied
and Constructive Contracts k1 205Hk1 (Formerly
95k4) 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. Contracts
k7 95k7 A
grant is a contract. Contracts
k47 95k47 Mere
executory contracts cannot be enforced at law unless there be a valuable consideration
to sustain them. Contracts
k51 95k51 Contracts
k52 95k52 Contracts
k71(1) 95k71(1) It
is not necessary that consideration for a contract should be a benefit to the
grantor, but it is sufficient if it imports damage or loss or forbearance of benefits
or any act done or to be done on the part of the grantee. Contracts
k249 95k249 Corporations
k9 101k9 When
a contract has once passed bona fide into grant, neither the king nor any private
person who may be the grantor can recall the grant of the property, although the
conveyance may have been purely voluntary. Contracts
k275 95k275 A
contract executed, as well as one that is executory, contains obligations binding
on the parties. Corporations
k1.1(1) 101k1.1(1) A
corporation is an artificial being, invisible, intangible, and existing only in
contemplation of law. Corporations
k2 101k2 Franchises
k2 183k2 A
"corporation" is a franchise for a number of persons to be incorporated and exist
as a body politic, with a power to maintain perpetual succession and to do corporate
acts, and each individual of such a corporation is said to have a franchise or
freedom. Corporations
k3 101k3 Corporations
are sole or aggregate. An aggregate corporation, at common law, is a collection
of individuals united into one collective body, under a special name, and possessing
certain immunities, etc., which do not belong to the natural persons composing
it. Corporations
k3 101k3 Corporations
k186 101k186 Corporations
k189(1) 101k189(1) Corporations
k189(7.5) 101k189(7.5) (Formerly
101k189(71/2)) Corporations
k499 101k499 An
"aggregate corporation" is an artificial person existing in contemplation of law
and endowed with powers and franchises which are considered as subsisting in corporation
itself, and hence such a corporation may sue and be sued by its own members and
may contract with them in same manner as with a stranger. Corporations
k8 101k8 A
charter may be granted upon an executory as well as on an executed consideration,
and when it is granted to persons who have not made application therefor, there
is an implied contract, upon acceptance of grantees, that they will perform duties
and exercise authority conferred by charter. Corporations
k31 101k31 Franchises
k2 183k2 A
gift by the crown of incorporeal hereditaments, such as corporate franchises,
when executed, is a "grant". Corporations
k35 101k35 Franchises
k2 183k2 When
a charter is granted, and the corporation is to be brought into existence by some
future acts of the corporators, the franchises or property which the charter grants
to the body remain in abeyance until such acts are done; and, when the corporation
is brought into life, the franchises instantaneously attach. Corporations
k36 101k36 Corporations
k180 101k180 Corporations
k499 101k499 An
aggregate corporation at common law possesses capacity of perpetual succession,
of acting by the collected vote or will of its component members and of suing
and being sued in all things touching its corporate rights and duties. Corporations
k370(1) 101k370(1) A
corporation has no power except what is given by its incorporating act, either
expressly or as incidental to its existence. Corporations
k372 101k372 Franchises
k2 183k2 A
grant of the king, at the suit of the grantee, is to be construed most beneficially
for the king and most strictly against the grantee. Courts
k89 106k89 Although
a particular case may not in itself be of sufficient magnitude to induce a rule
of law, it must be governed by the rule when established, unless some plain and
strong reason for excluding it can be given. Municipal
Corporations k2 268k2 "Public
corporations" are generally esteemed such as exist for public political purposes,
such as towns, cities, parishes and counties, but strictly speaking they are such
only as are founded by government for public purposes, where whole interest belongs
to the government. States
k1 360k1 By
the revolution against British rule, the duties as well as the powers of government
devolved upon the people of New Hampshire, including the power of parliament as
well as that of the executive department. Gifts
k41 191k41 A
gift completely executed is irrevocable and property conveyed by it becomes as
against the donor, the absolute property of the donee, and no subsequent change
of donor's intention can change rights of donee. War
and National Emergency k33 402k33 All
contracts and rights respecting property remained unchanged by the revolution
by which freedom from the British crown was obtained. War
and National Emergency k33 402k33 The
division of an empire works no forfeiture of previously vested rights.
ERROR to the Superior Court of the State of New Hampshire. This was an action
of trover, brought in the state court, in which the plaintiffs in error declared
for *519 two books of records, purporting to contain the records of all
the doings and proceedings of the trustees of Dartmouth College, from the establishment
of the corporation until the 7th day of October 1816; the original charter or
letters-patent, constituting the college; the common seal; and four volumes or
books of account, purporting to contain the charges and accounts in favor of the
college. The defendant pleaded the general issue, and at the trial, the following
special verdict was found: The
said jurors, upon their oath, say, that his Majesty George III., king of Great
Britain, &c., issued his letters-patent, under the public seal of the province,
now state, of New Hampshire, bearing the 13th day of December, in the 10th year
of his reign, and in the year of our Lord 1769, 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 commander-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 1754, *520 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 Gospel, 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 endeavors of said Wheelock, the design became
reputable among the Indians, insomuch that a large 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 expedient, that endeavors should be used to raise contributions from
well-disposed persons in England, for the 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 the 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 attorney,
by which said Whitaker solicited those worthy and generous contributors to the
charity, viz., *521 The Right Honorable William, Earl of Dartmouth, the
Honorable Sir Sidney Stafford Smythe, Knight, one of the barons 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, Spitalfields, in the county aforesaid, Esquire, Samuel Savage,
of the same place, gentleman, Josiah Roberts, of the parish of St. Edmund the
King, Lombard Street, London, gentleman, and Robert Keen, of the parish of Saint
Botolph, Aldgate, London, gentleman, to receive the several sums of money, which
should be contributed, and to be trustees for the contributors to such charity,
which they cheerfully agreed to. Whereupon, the said Whitaker did, by virtue of
said power of attorney, constitute and appoint the said Earl of Dartmouth, Sir
Sidney Stafford Smythe, John Thornton, Samuel Roffey, Charles Hardy and Daniel
West, Esquires, and Samuel Savage, Josiah Roberts and Robert Keen, gentlemen,
to be trustees of the money which had then been contributed, and which should,
by his means, be contributed for said purpose; which trust they have accepted,
as by 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 the said Wheelock. And
the said Wheelock further represents, that he has, by power of attorney, for many
weighty reasons, *522 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 understandingly, to give the preference, the said Wheelock
has laid before the said trustees, the several offers 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 especially 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 impediment to the said design, the same school may be enlarged and improved
to promote learning among the English, 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
honorable, honorable and worthy trustees, before mentioned, having maturely considered
the reasons and arguments, in favor of the several places *523 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 necessity of a legal incorporation,
in order to the safety and 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 remove 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 corporation 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 reasons to believe,
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 expect
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 desires, that the trustees aforesaid
may be vested with all that power therein, which can consist with their distance
from the same. *524
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 province of New Hampshire, for the benefit of said province,
do, of our special grace, certain knowledge and mere motion, by and with the advice
of our counsel for said province, by these presents, will, ordain, grant and constitute,
that there be a college 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 trustees of said college may and shall be one body corporate
and politic, 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 special 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 for ever, a body politic, consisting of trustees
of said Dartmouth College. And for the more full and perfect erection of said
corporation and body politic, consisting of trustees of Dartmouth College, we,
of our special grace, certain *525 knowledge and mere motion, do, by these
presents, for us, our heirs and successors, make, ordain, constitute and appoint
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 Jaffrey and Daniel Peirce, Esq'rs, both or our said
council, and Peter Gilman, Esq., now speaker of our house of representatives 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,
doctor in divinity, Benjamin Pomroy, of Hebroe, James Lockwood, of Weathersfield,
Timothy Pitkin and John Smalley, 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
Hampshire. And
we do further, of our special grace, certain knowledge and mere motion, for us,
our heirs and successors, will, give, grant and appoint, that the said trustees
and their successors shall for ever hereafter be, in deed, act and name, a body
corporate and politic, and that they, the said body corporate and politic, shall
be known and distinguished, in all deeds, grants, bargains, sales, writings, evidences
or otherwise howsoever, and in all courts for ever hereafter, plea and be impleaded
by the name of the Trustees of Dartmouth College; and that the said corporation,
*526 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 successors, in fee-simple, or otherwise howsoever, and to purchase,
receive or build any house or houses, or any other buildings, 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, he agreed on; their said agreement to be evidenced
by an instrument in writing, under their hands, ascertaining the same: And also
to receive and dispose of any lands, goods, chattels and other things, of what
nature soever, for the use aforesaid: And also to have, accept and receive any
rents, profits, annuities, gifts, legacies, donations or bequests of any kind
whatsoever, for the use aforesaid; so, nevertheless, that the yearly value of
the premises do not exceed the sum of 6000£. sterling; and therewith, or
otherwise, to support 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 christianizing, and instructing the Indian
natives of this land, their several allowances; and also their respective annual
salaries or allowances, and all such necessary and *527 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 aforesaid in as
full and ample a manner, to all intents and purposes, as a natural person, or
other body politic or corporate, is able to do, by the laws or 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 politic may answer the end of their erection
and constitution, and may have perpetual succession and continuance for ever,
we do, for us, our heirs and successors, will, give and grant unto the Trustees
of Dartmouth College, and to their successors for ever, 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 conveniently may be, within one year next after the
enrolment 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 be altered as they shall hereafter find most convenient. And we further order
and direct, that the said Eleazar Wheelock shall notify the time for holding said
first meeting, to be called as aforesaid, by sending a letter *528 to each
of said trustees, and causing an advertisement thereof to be printed in the New
Hampshire Gazette, and in some public newspaper 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 the governor or commander-in-chief of our
said province for the time being. And we do also, for us, our heirs and successors,
hereby will, give and grant unto the said Trustees of Dartmouth College, aforesaid,
and to their successors for ever, 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 seven 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 whatsoever, under the care
of said trustees, shall be determined by the majority or greater number of those
seven or more trustees so convened and met together. And
we do further will, ordain and direct, that the president, trustees, professors,
tutors and all such officers as shall be appointed for the public 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 act for the further security of his majesty's person
and government, and the succession of the crown in the heirs of the late Princess
Sophia, being *529 Protestants, 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 governor of our said province for the time being, or
by one by him empowered to that 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 empowered 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 president hereafter by us named, and to his successors, or,
in 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 president 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 trustees, as aforesaid. And
further, we do, by these presents, for us, our heirs and successors, create, make,
constitute, nominate and appoint our trusty and well-beloved Eleazar Wheelock,
doctor in divinity, the founder of said *530 college, to be president of
said Dartmouth College, and to have the immediate care of the education and government
of such students as shall be admitted into said Dartmouth College for instruction
and education; and do will, give and grant to him, in said office, full power,
authority and right, to nominate, appoint, constitute and ordain, by his last
will, such suitable and meet person or persons as he shall choose to succeed him
in the presidency of said Dartmouth College; and the person so appointed, by his
last will, to continue in office, vested with all the powers, privileges, jurisdiction
and authority 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 College, and to their successors for ever, or any seven
or more of them, convened as aforesaid, that in the case of the ceasing or failure
of a president, by any means whatsoever, that the said trustees do elect, nominate
and appoint such qualified 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 College, and to have the care of the education and government
of the students as aforesaid; and in case of the ceasing of a president as aforesaid,
the senior professor or tutor, being one of the trustees, shall exercise the office
of a president, until the trustees shall make choice of and appoint, a president
as aforesaid; *531 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,
convened 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 Dartmouth College. And also, that the
said trustees or their successors, or the major part of any seven or more of them,
convened 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 the major part of any seven 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 successors, 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 Dartmouth College, according to the
*532 directions, and during the pleasure of 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 successors, or the major part of any seven or more of
them, which shall convene for that purpose, as is above directed, as often as
one or more of said trustees shall die, or by removal 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 unfitness or incapacity
of such trustee or trustees, elect and appoint such trustee or trustees as 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 election 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 enrolment of these presents, such vacancy or vacancies as
may or shall happen, by death or otherwise, in the aforesaid number of trustees,
shall be filled up by election 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 resident, and respectable freeholders
of our said province of New Hampshire, and seven of said whole number shall be
laymen. *533
And we do further, of our special grace, certain knowledge and mere motion, will,
give and grant unto the said trustees of Dartmouth College, that they, and their
successors, 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 empowered,
from time to time, fully and lawfully to make and establish such ordinances, orders
and laws, as may tend to the good and wholesome government of the said college,
and all the students and the several officers and ministers thereof, and to the
public 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 advantage of education, or from any of the liberties and privileges 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 trustees
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 empower the said trustees of Dartmouth College, and the president,
tutors and professors by them elected and appointed as aforesaid, to put such
ordinances, orders and laws in execution, to all proper intents and purposes. *534
And we do further, of our special grace, certain knowledge and mere motion, will,
give, and grant unto the said 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 seven or more of them, convened for that purpose, as above directed,
do, by the president of said college, for the time being, or any other deputed
by them, give and grant any such degree or degrees to any of the students of the
said college, 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 testimonials thereof. And
we do further, of our special grace, certain knowledge 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 college;
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. *535
And we do further, for us, our heirs and successors, give and grant unto the said
trustees of the said Dartmouth 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 mentioned; which
officers and ministers we do hereby empower to 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 support 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 faithfully disposed
of, in the best manner, for that purpose, and that 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 College, and of
his successors, annually, or as often as he shall be thereunto desired or required,
to transmit to the right honorable, honorable, and worthy gentlemen of the trust,
in England, before mentioned, a faithful account of the improvements 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 *536 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 presents, for us, our heirs and successors, give and grant unto the
said trustees of Dartmouth College, and to their successors for ever, that these
our letters-patent, on the enrolment 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 and successors, without any other
license, grant or confirmation from us, our heirs and successors, hereafter by
the said trustees to be had and obtained, notwithstanding the not writing or misrecital,
not naming or misnaming the aforesaid 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 inquire 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, liberties, immunities, and all other the
premises herein and hereby 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 *537 our said
province of New Hampshire to be hereunto affixed. Witness our trusty and well-beloved
John Wentworth, Esquire, governor 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 1769. N.B.
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
aforesaid,' between the first and second lines, also the words 'or more,' between
the 27th and 28th lines, also the words 'or more,' between the 28th and 29th lines,
and also the words 'to all intents and purposes,' between the 37th and 38th lines
of this sheet, were respectively interlined, before signing and sealing. And
the said jurors, upon their oath, further say, that afterwards, upon the 18th
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 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 *538 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 moneys of
great value; and from time to time since, have had, taken, received and acquired,
in manner aforesaid, and otherwise, lands, goods, chattels and moneys 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 moneys,
acquired in manner aforesaid, the yearly income of the same, not exceeding the
sum of $26,666, for the use of said Dartmouth College, as specified in said letters-patent.
And the said jurors, upon their oath, further say, 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 aforesaid, 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 Dartmonth College, so constituted as aforesaid, on the same 27th
day of June, A. D. 1816, were possessed of the goods and chattels in the declaration
of the said trustees specified, *539 and at the place therein mentioned,
as of their own proper goods and chattels, and continued so possessed until, and
at the time of the demand and refusal of the same, as hereinafter mentioned, unless
divested thereof, and their title thereto defeated and rendered invalid, by the
provisions of the act 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 hereinafter 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 advantages
of education is highly conducive to promote this end, and by the constitution
it is made the duty of the legislators and magistrates, to cherish the interests
of literature, and the sciences, and all seminaries established for their advancement;
and as the college of the state may, in the opinion of the legislature, be rendered
more extensively useful: therefore---- §
1. Be it enacted, &c., that the *540 corporation, heretofore called
and 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 whom shall form
a quorum for the transaction of business; and they and their successors
in that capacity, as hereby constituted, shall respectively for ever have, hold,
use, exercise and enjoy all the powers, authorities, rights, property, liberties,
privileges and immunities 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 places of their meetings, and manner of notifying the same; to organize
colleges in the university; to establish an institute, and elect fellows and members
thereof: to appoint such officers as they may deem proper, and determine their
duties and compensation, and also to displace them; to delegate 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 the 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,
invest and employ the funds of the university. §
2. And be it further enacted, that there shall be a board of overseers, who shall
have perpetual succession, and whose number shall be twenty-five, *541
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 governor and lieutenant-governor 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 proceedings of the board of trustees as shall relate to the appointment and
removal of president, professors and other permanent 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 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. §
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 corporation, for the
faithful performance thereof; and also a secretary 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 *542 which he
was chosen. And it shall furthermore be the duty 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 revision and control. §
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 trustees, and do and execute
all the duties devolving by usage on the president of a university. He shall render
annually to the governor 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. §
5. Be it further enacted, that the president and professors of the university
shall be nominated by the trustees, 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 overseers shall have power to suspend and
remove any member of their respective boards. §
6. Be it further enacted, that the governor and counsel 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 *543 the governor and counsel in like manner shall, by appointments,
as soon as may be, complete the present board of trustees to 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 governor 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 governor is hereby
authorized and requested to summon the first meeting of the said trustees and
overseers, to be held at Hanover, on the 26th day of August next. §
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 constitution 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. §
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 honors, privileges or benefits of the institution, on
account of his religious creed or belief. The theological colleges which *544
may be established in the university shall be founded on the same principles of
religious freedom; and any man, or body of men, shall have a right to endow colleges
or professorships of any sect of the Protestant 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, holden at said college, on the 28th
day of August, A. D. 1816, the said trustees voted and resolved, and caused the
said vote and resolve to be entered on their records, that they do not accept
the provisions of the said act of the legislature of New Hampshire of the 27th
of June 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 amendment 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 7th day of October,
A. D. 1816, and before the commencement of this suit, the said trustees of Dartmouth
College demanded of the said *545 William H. Woodward the property, goods
and chattels in the said declaration specified, 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 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 the 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 improve 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 overseers of Dartmouth University, which were
summoned agreeably 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 *546 time and place appointed, whereby the proceedings of said corporation
have hitherto been, and still are delayed: §
1. Be it enacted, &c., that the governor be, and he is hereby authorized and
requested to summon 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 matter or thing, within the limits of their jurisdiction
and power, 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 governer,
with advice of council, is authorized to fill all vacancies that have happened,
or may happen in the board of said trustees, previous to their next annual meeting.
And the governor is hereby authorized to summon a meeting of the overseers of
said university, at such time and place as he may consider proper. And provided,
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. §
2. And be it further enacted, that so much of the act, to which this is an addition,
as makes 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 *547 to those of that to which this is
an addition, shall be a quorum for transacting business; and that in the
board of trustees, six votes at least shall be necessary for the passage of any
act or resolution. And provided also, that any 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 addition,
shall have power to adjourn from time to time, until a quorum shall have
convened. §
3. And be it further enacted, that each member of said board of trustees, already
appointed or chosen, or hereafter to be 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 18th, 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 addition
to, and in amendment of an act, entitled, an act to amend the charter and enlarge
and improve the corporation of Dartmouth College,' in the words following: *548
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 &c., that if any person or persons shall assume the office of president,
trustee, professor, secretary, treasurer, librarian or other officer of Dartmouth
University; or by any name, or under any pretext, shall, directly or indirectly,
take upon himself or themselves the discharge 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 corporation
of Dartmouth College,' or shall in any way, directly or indirectly, wilfully impede
or hinder any such officer or officers already existing, or hereafter to be appointed
agreeably 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 person 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 *549 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,' shall continue to 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 superintendence of the property of said corporation, whether real
or personal, until a quorum of said trustees shall have convened in a regular
meeting. Approved,
December 26th, 1816. And
the said jurors, upon their oath, further say, that the said William H. Woodward,
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 exercise 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,
by law, 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 *550
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 4th 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 December, A. D. 1816; and the said William H.
Woodward was, on the said 4th day of February, A. D. 1817, duly appointed by the
said Trustees of Dartmouth University, secretary 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 8th day of February, A. D. 1817. But whether upon the whole matter aforesaid,
by the jurors 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 repugnant 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 mentioned are valid in law, and
binding on said trustees of Dartmouth College, *551 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 constitution 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 aforesaid, 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 assent thereto, by them, so as to render
them incapable 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 William H. Woodward is guilty of the premises above
laid to his charge, by the declaration aforesaid, and in that case, they assess
the damages of them, the said trustees of Dartmouth College, by occasion thereof,
at $20,000. Judgment
having been afterwards rendered upon the said special verdict, by the superior
court of the state of New Hampshire, being the highest court of law or equity
of said state, for the plaintiff below, the cause was brought before this court
by writ of error. March
10th and 11th, 1818. Webster,
for the plaintiffs in error.--The general question is, whether the acts of the
27th of June, and of the 18th and 26th of December 1816, are *552 valid
and binding on the rights of the plaintiffs, without their acceptance or assent. The
substance of the facts recited in the preamble to the charter, is, that Dr. Wheelock
had founded a charity, on funds owned and procured by himself; that he was at
that time, the sole dispenser and sole administrator, as well as the legal owner
of these funds; that he had made his will devising this property in trust, to
continue the existence and uses of the school, and appointed trustees; that, in
this state of things, he had been invited to fix his school permanently in New
Hampshire, and to extend the design of it to the education of the youth of that
province; that before he removed his school, or accepted this invitation, which
his friends in England had advised him to accept, he applied for a charter, to
be granted, not to whomsoever the king or government of the province should please,
but to such persons as he named and appointed, viz., the persons whom he had already
appointed to be the future trustees of his charity, by his will. The charter,
or letters-patent, then proceed to create such a corporation, and to appoint twelve
persons to constitute it, by the name of the 'Trustees of Dartmouth College;'
to have perpetual existence, as such corporation, and with power to hold and dispose
of lands and goods for the use of the college, with all the ordinary powers of
corporations. They are, in their discretion, to apply the funds and property of
the college to the support of the president, tutors, ministers and other officers
of the college, and such missionaries and school-masters as they may see fit to
employ among *553 the Indians. There are to be twelve trustees for ever,
and no more; and they are to have the right of filling vacancies occurring in
their own body. The Rev. Mr. Wheelock is declared to be the founder of the college,
and is, by the charter, appointed first president, with power to appoint a successor,
by his last will. All proper powers of government, superintendence and visitation,
are vested in the trustees. They are to appoint and remove all officers, at their
discretion; to fix their salaries, and assign their duties; and to make all ordinances,
orders and laws, for the government of the students. And to the end that the persons
who had acted as depositaries of the contributions in England, and who had also
been contributors themselves, might be satisfied of the good use of their contributions,
the president was, annually, or when required, to transmit to them an account
of the progress of the institution, and the disbursements of its funds, so long
as they should continue to act in that trust. These letters-patent are to be good
and effectual in law, against the king, his heirs and successors for ever, without
further grant or confirmation; and the trustees are to hold all and singular these
privileges, advantages, liberties and immunities, to them and to their successors
for ever. No funds are given to the college by this charter. A corporate existence
and capacity are given to the trustees, with the privileges and immunities which
have been mentioned, to enable the founder and his associates the better to manage
the funds which they themselves had contributed, and such others as they might
afterwards obtain. *554
After the institution, thus created and constituted, had existed, uninterruptedly
and usefully, nearly fifty years, the legislature of New Hampshire passed the
acts in question. The first act makes the twelve trustees under the charter, and
nine other individuals to be appointed by the governor and council, a corporation,
by a new name; and to this new corporation transfers all the property, rights,
powers, liberties and privileges of the old corporation; with further power to
establish new colleges and an institute, and to apply all or any part of
the funds to these purposes, subject to the power and control of a board of twenty-five
overseers, to be appointed by the governor and council. The second act makes further
provisions for executing the objects of the first, and the last act authorizes
the defendant, the treasurer of the plaintiffs, to retain and hold their property,
against their will. If
these acts are valid, the old corporation is abolished, and a new one created.
The first act does, in fact, if it can have effect, create a new corporation,
and transfer to it all the property and franchises of the old. The two corporations
are not the same, in anything which essentially belongs to the existence of a
corporation. They have different names, and different powers, rights and duties;
their organization is wholly different; the powers of the corporation are not
vested in the same or similar hands. In one, the trustees are twelve, and no more;
in the other, they are twenty-one. In one, the power is a single board; in the
other, it is divided between two boards. Although the act professes to *555
include the old trustees in the new corporation, yet that was without their assent,
and against their remonstrance; and no person can be compelled to be a member
of such a corporation against his will. It was neither expected nor intended,
that they should be members of the new corporation. The act itself treats the
old corporation as at an end, and going on the ground, that all its functions
have ceased, it provides for the first meeting and organization of the new corporation.
It expressly provides also, that the new corporation shall have and hold all the
property of the old; a provision which would be quite unnecessary, upon any other
ground, than that the old corporation was dissolved. But if it could be contended,
that the effect of these acts was not entirely to abolish the old corporation,
yet it is manifest, that they impair and invade the rights, property and powers
of the trustees, under the charter, as a corporation, and the legal rights, privileges
and immunities which belong to them, as individual members of the corporation.
The twelve trustees were the sole legal owners of all the property acquired under
the charter; by the acts, others are admitted, against their will, to be joint
owners. The twelve individuals, who are trustees, were possessed of all the franchises
and immunities conferred by the charter; by the acts, nine other trustees, and
twenty-five overseers, are admitted, against their will, to divide these franchises
and immunities with them. If, either as a corporation, or as individuals, they
have any legal rights, this forcible intrusion of others violates those rights,
as manifestly as an entire and complete ouster *556 and dispossession.
These acts alter the whole constitution of the corporation; they affect the rights
of the whole body, as a corporation, and the rights of the individuals who compose
it; they revoke corporate powers and franchises; they alienate and transfer the
property of the college to others. By the charter, the trustees had a right to
fill vacancies in their own number; this is now taken away. They were to consist
of twelve, and by express provision, of no more; this is altered. They and their
successors, appointed by themselves, were for ever to hold the property; the legislature
has found successors for them, before their seats are vacant. The powers and privileges,
which the twelve were to exercise exclusively, are now to be exercised by others.
By one of the acts, they are subjected to heavy penalties, if they exercise their
offices, or any of those powers and privileges granted them by charter, and which
they had exercised for fifty years; they are to be punished for not accepting
the new grant, and taking its benefits. This, it must be confessed, is rather
a summary mode of settling a question of constitutional right. Not only are new
trustees forced into the corporation, but new trusts and uses are created. The
college is turned into a university; power is given to create new colleges, and
to authorize any diversion of the funds, which may be agreeable to the new boards,
sufficient latitude in given, by the undefined power of establishing an institute.
To these new colleges, and this institute, the funds contributed by the founder,
Dr. Wheelock, and by the original donors, the Earl of Dartmouth *557 and
others, are to be applied, in plain and manifest disregard of the uses to which
they were given. The president, one of the old trustees, had a right to his office,
salary and emoluments, subject to the twelve trustees alone; his title to these
is now changed, and he is made accountable to new masters; so also, all the professors
and tutors. If the legislature can, at pleasure, make these alterations and changes
in the rights and privileges of the plaintiffs, it may, with equal propriety,
abolish these rights and privileges altogether; the same power which can do any
part of this work, can accomplish the whole. And, indeed, the argument, on which
these acts have been hitherto defended, goes altogether on the ground, that this
is such a corporation as the legislature may abolish at pleasure; and that its
members have no rights, liberties, franchises, property or privileges, which the
legislature may not revoke, annul, alienate or transfer to others, whenever it
sees fit. It
will be contended by the plaintiffs, that these acts are not valid and binding
on them without their assent. 1. Because they are against common right, and the
constitution of New Hampshire. 2. Because they are repugnant to the constitution
of the United States. I am aware of the limits which bound the jurisdiction of
the court in this case; and that on this record, nothing can be decided, but the
single question, whether these acts are repugnant to the constitution of the United
States. Yet it may assist in forming an opinion of their true nature and character,
to compare them with those fundamental principles, introduced into the state governments
*558 for the purpose of limiting the exercise of the legislative power, and
which the constitution of New Hampshire expresses with great fullness and accuracy. It
is not too much to assert, that the legislature of New Hampshire would not have
been competent to pass the acts in question, and to make them binding on the plaintiffs,
without their assent, even if there had been, in the constitution of New Hampshire,
or of the United States, no special restriction on their power; because these
acts are not the exercise of a power properly legislative. Calder v.
Bull, 3 Dall. 386. Their object and effect is, to take away from one, rights,
property and franchises, and to grant them to another. This is not the exercise
of a legislative power. To justify the taking away of vested rights, there must
be a forfeiture; to adjudge upon and declare which, is the proper province of
the judiciary. Attainder and confiscation are acts of sovereign power, not acts
of legislation. The British parliament, among other unlimited powers, claims that
of altering and vacating charters; not as an act of ordinary legislation, but
of uncontrolled authority. It is, theoretically, omnipotent; yet, in modern times,
it has attempted the exercise of this power, very rarely. In a celebrated instance,
those who asserted this power in parliament, vindicated its exercise only in a
case, in which it could be shown, 1st. That the charter in question was a charter
of political power. 2d. That there was a great and overruling state necessity,
justifying the *559 violation of the charter. 3. That the charter had been
abused, and justly forfeited. (Annual Register 1784, p. 160; Parl. Reg. 1783;
Mr. Burke's Speech on Mr. Fox's East India Bill, Burke's Works, vol. 3, p. 414,
417, 467, 468, 486.) The bill affecting this charter did not pass; its history
is well known. The act which afterwards did pass, passed with the assent of the
corporation. Even in the worst times, this power of parliament to repeal and rescind
charters has not often been exercised. The illegal proceedings in the reign of
Charles II. were under color of law. Judgments of forfeiture were obtained in
the courts. Such was the case of the quo warranto against the city of London,
and the proceedings by which the charter of Massachusetts was vacated. The legislature
of New Hampshire has no more power over the rights of the plaintiffs than existed,
somewhere, in some department of government, before the revolution. The British
parliament could not have annulled or revoked this grant, as an act of ordinary
legislation. If it had done it at all, it could only have been, in virtue of that
sovereign power, called omnipotent, which does not belong to any legislature in
the United States. The legislature of New Hampshire has the same power over this
charter, which belonged to the king, who granted it, and no more. By the law of
England, the power to create corporations is a part of the royal prerogative.
1 Bl. Com. 472. By the revolution, this power may be considered as having devolved
on the legislature of *560 the state, and it has, accordingly, been exercised
by the legislature. But the king cannot abolish a corporation, or new model it,
or alter its powers, without its assent. This is the acknowledged and well-known
doctrine of the common law. 'Whatever might have been the notion in former times,'
says Lord MANSFIELD, 'it is most certain, now, that the corporations of the universities
are lay corporations; and that the crown cannot take away from them any rights
that have been formerly subsisting in them, under old charters or prescriptive
usage.' 3 Burr. 1656. After forfeiture duly found, the king may regrant the franchises;
but a grant of franchises, already granted, and of which no forfeiture has been
found, is void. Corporate franchises can only be forfeited by trial and judgment.
King v. Pasmore, 3 T. R. 244. In case of a new charter or grant to
an existing corporation, it may accept or reject it as it pleases. King
v. Vice-Chancellor of Cambridge, 3 Burr. 1656; 3 T. R. 240, per
Lord KENYON. It may accept such part of the grant as it chooses, and reject the
rest. 3 Burr. 1661. In the very nature of things a charter cannot be forced upon
any body; no one can be compelled to accept a grant; and without acceptance, the
grant is necessarily void. Ellis v. Marshall, 2 Mass. 277; Kyd on
Corp. 65-6. It cannot be pretended, that the legislature, as successor to the
king in this part of his prerogative, has any power to revoke, vacate or alter
this charter. If, therefore, the legislature has not this power, by any *561
specific grant contained in the constitution; nor as included in its ordinary
legislative powers; nor by reason of its succession to the prerogatives of the
crown in this particular; on what ground would the authority to pass these acts
rest, even if there were no special prohibitory clauses in the constitution, and
the bill of rights? But
there are prohibitions in the constitution and bill of rights of New Hampshire,
introduced for the purpose of limiting the legislative power, and of protecting
the rights and property of the citizens. One prohibition is, 'that no person shall
be deprived of his property, immunities or privileges, put out of the protection
of the law, or deprived of his life, liberty or estate, but by judgment of his
peers, or the law of the land.' In the opinion, however, which was given in the
court below, it is denied, that the trustees, under the charter, had any property,
immunity, liberty or privilege, in this corporation, within the meaning of this
prohibition in the bill of rights. It is said, that it is a public corporation
and public property. That the trustees have no greater interest in it than any
other individuals. That it is not private property, which they can sell, or transmit
to their heirs; and that, therefore, they have no interest in it. That their office
is a public trust, like that of the governor, or a judge; and that they have no
more concern in the property of the college, than the governor in the property
of the state, or than the judges in the fines which they impose on the culprits
at their bar. That it is nothing to them, whether their powers shall be extended
or lessened, any more than it is *562 to the courts, whether their jurisdiction
shall be enlarged or diminished. It is necessary, therefore, to inquire into the
true nature and character of the corporation which was created by the charter
of 1769. There
are divers sorts of corporations; and it may be safely admitted that the legislature
has more power over some, than over others. 1 Wooddes. 474; 1 Bl. Com. 467. Some
corporations are for government and political arrangement; such, for example,
as cities, counties and the towns in New England. These may be changed and modified,
as public convenience may require, due regard being always had to the rights of
property. Of such corporations, all who live within the limits are, of course,
obliged to be members, and to submit to the duties which the law imposes on them
as such. Other civil corporations are for the advancement of trade and business,
such as banks, insurance companies, and the like. These are created, not by general
law, but usually by grant; their constitution is special; it is such as the legislature
sees fit to give, and the grantees to accept. The
corporation in question is not a civil, although it is a lay corporation. It is
an eleemosynary corporation. It is a private charity, originally founded and endowed
by an individual, with a charter obtained for it at his request, for the better
administration of his charity. 'The eleemosynary sort of corporations are such
as are constituted for the perpetual distributions of the free-alms or bounty
of the founder of them, to such persons as he has directed. Of this *563
are all hospitals for the maintenance of the poor, sick and impotent; and all
colleges both in our universities and out of them.' 1 Bl. Com. 471. Eleemosynary
corporations are for the management of private property, according to the will
of the donors; they are private corporations. A college is as much a private corporation
as 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.' 1 Ves.
537. The legal signification of a charity is derived chiefly from the statute
43 Eliz., c. 4. 'Those purposes,' says Sir. W. GRANT, 'are considered charitable,
which that statute enumerates.' 9 Ves. 405. Colleges are enumerated as charities
in that statute. The government, in these cases, lends its aid to perpetuate the
beneficient intention of the donor, by granting a charter, under which his private
charity shall continue to be dispensed, after his death. This is done, either
by incorporating the objects of the charity, as, for instance, the scholars in
a college, or the poor in a hospital; or by incorporating those who are to be
governors or trustees of the charity. 1 Wooddes. 474. In
cases of the first sort, the founder is, by the common law, visitor. In early
times, it became a maxim, that he who gave the property might regulate it in future.
Cujus est dare, ejus est disponere. This right of visitation descended from
the founder to his heir, as *564 a right of property, and precisely as
his other property went to his heir; and in default of heirs, it went to the king,
as all other property goes to the king, for the want of heirs. The right of visitation
arises from the property; it grows out of the endowment. The founder may, if he
please, part with it, at the time when he establishes the charity, and may vest
it in others. Therefore, if he chooses that governors, trustees or overseers should
be appointed in the charter, he may cause it to be done, and his power of visitation
will be transferred to them, instead of descending to his heirs. The persons thus
assigned or appointed by the founder will be visitors, with all the powers of
the founder, in exclusion of his heir. 1 Bl. Com. 472. The right of visitation
then accrues to them, as a matter of property, by the gift, transfer or appointment
of the founder. This is a private right, which they can assert in all legal modes,
and in which they have the same protection of the law as in all other rights.
As visitors, they may make rules, ordinances and statutes, and alter and repeal
them, so far as permitted so to do by the charter. 2 T. R. 350-51. Although the
charter proceeds from the crown, or the government, it is considered as the will
of the donor. It is obtained at his request. He imposes it as the rule which is
to prevail in the dispensation of his bounty, in all future times. The king, or
government, which grants the charter, is not thereby the founder, but he who furnishes
the funds. The gift of the revenues is the foundation. 1 Bl. Com. 480. The leading
*565 case on this subject is Phillips v. Bury. [FN3] This was
an ejectment brought to recover the rectory-house, &c., of Exeter college,
in Oxford. The question was, whether the plaintiff or defendant was legal rector.
Exeter college was founded by an individual, and incorporated by a charter granted
by Queen Elizabeth. The controversy turned upon the power of the visitor, and
in the discussion of the cause, the nature of college charters and corporations
was very fully considered; and it was determined, that the college was a private
corporation, and that the founder had a right to appoint a visitor, and give him
such power as he thought fit. [FN4] The learned Bishop Stillingfleet's argument
in the same cause, as a member of the House of Lords, when it was there heard,
exhibits very clearly the nature of colleges and similar corporations. [FN5] These
opinions received the sanction of the House of Lords, and they seem to be settled
and undoubted law. Where there is a charter, vesting proper powers of government
in trustees or governors, they are visitors; and there is no control in anybody
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. Green v. Rutherford,
1 Ves. 472; Attorney- General v. Foundling Hospital, 2 Ves. Jr.
47; Kyd on Corp. 195; Coop. Eq. Pl. 292. *566 '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 power, either generally or specially; he may prescribe particular
modes and manners, as to the exercise of part of it. If he makes a general visitor
(as by the general words, visitator sit), the person so constituted has
all incidental power; but he may be restrained as to particular instances. The
founder may appoint a special visitor, for a particular purpose, and no further.
The founder may make a general visitor; and yet appoint an inferior particular
power, to be executed without going to the visitor in the first instance.'
St. John's College, Cambridge v. Todington, 1 Burr. 200. And even if
the king be founder, if he grant a charter incorporating trustees and governors,
they are visitors, and the king cannot visit. Attorney-General v. Middleton,
2 Ves. 328. A subsequent donation, or engrafted fellowship, falls under the same
general visitatorial power, if not otherwise specially provided. Green
v. Rutherford; St. John's College v. Todington.
FN3
Reported in 1 Ld. Raym. 5; Comb. 265; Holt 715; 1 Show. 360; 4 Mod. 106; Skin.
447. FN4
Lord HOLT's judgment, copied from his own manuscript, is in 2 T. R. 346. FN5
1 Burn's Eccl. Law 443. In
New England, and perhaps throughout the United States, eleemosynary corporations
have been generally established in the later mode, that is by incorporating governors
or trustees, and vesting in them the right of visitation. Small variations may
have been in some instances adopted; as in the case of Harvard College, where
some power of inspection is given to the overseers, but *567 not, strictly
speaking, a visitatorial power, which still belongs, it is apprehended, to the
fellows or members of the corporation. In general, there are many donors. A charter
is obtained, comprising them all, or some of them, and such others as they choose
to include, with the right of appointing 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 private. The case before
the court is clearly that of an eleemosynary corporation. It is, in the strictest
legal sense, a private charity. In King v. St. Catharine's Hall,
4 T. R. 233, that college is called a private, eleemosynary, lay corporation.
It was endowed by a private founder, and incorporated by letters-patent. And in
the same manner was Dartmouth College founded and incorporated. Dr. Wheelock is
declared by the charter to be its founder. It was established by him, on funds
contributed and collected by himself. As such founder, he had a right of visitation,
which he assigned to the trustees, and they received it, by his consent and appointment,
and held it under the charter. 1 Bl. Com. ubi supra. He appointed these
trustees visitors, and in that respect to take place of his heir; as he might
have appointed devisees to take his estate, instead of his heir. Little, probably,
did he think, at that time, that the legislature would ever take away this property
and these privileges, and give them to others; little did he suppose, that this
charter secured to him and his successors no legal rights; little did *568
the other donors think so. If they had, the college would have been, what the
university is now, a thing upon paper, existing only in name. The numerous academies
in New England have been established substantially in the same manner. They hold
their property by the same tenure, and no other. Nor has Harvard College any surer
title than Dartmouth College; it may, to-day, have more friends; but to-morrow,
it may have more enemies; its legal rights are the same. So also of Yale College;
and indeed of all the others. When the legislature gives to these institutions,
it may, and does, accompany its grants with such conditions as it pleases. The
grant of lands by the legislature of New Hampshire to Dartmouth College, in 1789,
was accompanied with various conditions. When donations are made, by the legislature
or others, to a charity, already existing, without any condition, or the specification
of any new use, the donation follows the nature of the charity. Hence the doctrine,
that all eleemosynary corporations are private bodies. They are founded by private
persons, and on private property. The public cannot be charitable in these institutions.
It is not the money of the public, but of private persons which is dispensed.
It may be public, that is, general, in its uses and advantages; and the state
may very laudably add contributions of its own to the funds; but it is still private
in the tenure of the property, and in the right of administering the funds. If
the doctrine laid down by Lord HOLT, and the House of Lords, in Phillips
v. Bury, and recognised and established in all the other cases, be correct,
*569 the property of this college was private property; it was vested in the
trustees by the charter, and to be administered by them, according to the will
of the founder and donors, as expressed in the charter; they were also visitors
of the charity, in the most ample sense. They had, therefore, as they contend,
privileges, property and immunities, within the true meaning of the bill of rights.
They had rights, and still have them, which they can assert against the legislature,
as well as against other wrongdoers. It makes no difference, that the estate is
holden for certain trusts; the legal estate is still theirs. They have a right
in the property, and they have a right of visiting and superintending the trust;
and this is an object, of legal protection, as much as any other right. The charter
declares that the powers conferred on the trustees, are 'privileges, advantages,
liberties and immunities;' and that they shall be for ever holden by them and
their successors. The New Hampshire bill of rights declares that no one shall
be deprived of his 'property, privileges or immunities,' but by judgment of his
peers, or the law of the land. The
argument on the other side is, that although these terms may mean something in
the bill of rights, they mean nothing in this charter. But they are terms of legal
signification, and very properly used in the charter; they are equivalent with
franchises. Blackstone says, that franchise and liberty are used as synonymous
terms. And after enumerating other liberties and franchises, he says, 'it is likewise,
a franchise, for a number of persons to be incorporated and subsist as a body
politic, with a power to maintain *570 perpetual succession, and do other
corporate acts; and each individual member of such corporation is also said to
have a franchise or freedom. ' 2 Bl. Com. 37. Liberties is the term used in
magna charta, as including franchises, privileges, immunities and all the
rights which belong to that class. Professor Sullivan says, the term signifies
the 'privileges that some of the subjects, whether single persons or bodies corporate,
have above others by the lawful grant of the king; as the chattels of felons or
outlaws, and the lands and privileges of corporations.' Sullivan's Lect, 41st
Lect. The privilege, then, of being a member of a corporation, under a lawful
grant, and of exercising the rights and powers of such member, is such a privilege,
liberty or franchise, as has been the object of legal protection, and the subject
of a legal interest, from the time of magna charta to the present moment.
The plaintiffs have such an interest in this corporation, individually, as they
could assert and maintain in a court of law, not as agents of the public, but
in their own right. Each trustee has a franchise, and if he be disturbed in the
enjoyment of it, he would have redress, on appealing to the law, as promptly as
for any other injury. If the other trustees should conspire against any one of
them, to prevent his equal right and voice in the appointment of a president or
professor, or in the passing of any statute or ordinance of the college, he would
be entitled to his action, for depriving him of his franchise. It makes no difference,
that this property is to be holden and administered, and these franchises exercised,
*571 for the purpose of diffusing learning. No principle and no case establishes
any such distinction. The public may be benefited by the use of this property;
but this does not change the nature of the property, or the rights of the owners.
The object of the charter may be public good; so it is in all other corporations;
and this would as well justify the resumption or violation of the grant in any
other case as in this. In the case of an advowson, the use is public, and the
right cannot be turned to any private benefit or emolument. It is, nevertheless,
a legal private right, and the property of the owner, as emphatically as his freehold.
The rights and privileges of trustees, visitors or governors of incorporated colleges,
stand on the same foundation. They are so considered, both by Lord HOLT and Lord
HARDWICKE. Phillips v. Bury; Green v. Rutherforth. See also
2 Bl. Com. 21. To
contend, that the rights of the plaintiffs may be taken away, because they derive
from them no pecuniary benefit, or private emolument, or because they cannot be
transmitted to their heirs, or would not be assets to pay their debts, is taking
an extremely narrow view of the subject. According to this notion, the case would
be different, if, in the charter, they had stipulated for a commission on the
disbursement of the funds; and they have ceased to have any interest in the property,
because they have undertaken to administer it gratuitously. It cannot be necessary
to say much in refutation of the idea, that there cannot be a legal interest,
or *572 ownership, in anything which does not yield a pecuniary profit;
as if the law regarded no rights but the rights of money, and of visible tangible
property: Of what nature are all rights of suffrage? No elector has a particular
personal interest; but each has a legal right, to be exercised at his own discretion,
and it cannot be taken away from him. The
exercise of this right, directly and very materially affects the public; much
more so than the exercise of the privileges of a trustee of this college. Consequences
of the utmost magnitude may sometimes depend on the exercise of the right of suffrage
by one or a few electors. Nobody was ever yet heard to contend, however, that
on that account the public might take away the right or impair it. This notion
appears to be borrowed from no better source than the repudiated doctrine of the
three judges in the Aylesbury Case. [FN6] That was an action against a
returning officer, for refusing the plaintiff's vote, in the election of a member
of parliament. Three of the judges of the king's bench held, that the action could
not be maintained, because, among other objections, 'it was not any matter of
profit, either in praesenti or in futuro.' It would not enrich the
plaintiff, in praesenti, nor would it, in futuro, go to his heirs,
or answer to pay his debts. But Lord HOLT and the House of Lords were of another
opinion. The judgment of the three judges was reversed, and the doctrine they
held, having been exploded for a century, seems now for the first time to be revived.
Individuals have a right *573 to use their own property for purposes of
benevolence, either towards the public, or towards other individuals. They have
a right to exercise this benevolence in such lawful manner as they may choose;
and when the government has induced and excited it, by contracting to give perpetuity
to the stipulated manner of exercising it, 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 public,
belongs, therefore, to the public, is quite a new doctrine. It has no precedent,
and is supported by no known principle. Dr. Wheelock might have answered his purposes,
in this case, by executing a private deed of trust. He might have conveyed his
property to trustees, for precisely such uses as are described in this charter.
Indeed, it appears, that he had contemplated the establishment of his school in
that manner, and had made his will, and devised the property to the same persons
who were afterwards appointed trustees in the charter. Many literary and other
charitable institutions are founded in that manner, and the trust is renewed,
and conferred on other persons, from time to time, as occasion may require. In
such a case, no lawyer would or could say, that the legislature might divest the
trustees, constituted by deed or will, seize upon the property, and give it to
other persons, for other purposes. And does the granting of a charter, which is
only done to perpetuate the trust *574 in a more convenient manner, make
any difference? Does or can this change the nature of the charity, and turn it
into a public, political corporation? Happily, we are not without authority on
this point. It has been considered and adjudged.
FN6
Ashby v. White, 2 Ld. Raym. 938. Lord
HARDWICKE says, in so many words, 'The charter of the crown cannot make a charity
more or less public, but only more permanent than it would otherwise be.' Attorney-General
v. Pearce, 2 Atk. 87. The granting of the corporation is but making the
trust perpetual, and does not alter the nature of the charity. The very object
sought in obtaining such charter, and in giving property to such a corporation,
is to make and keep it private property, and to clothe it with all the security
and inviolability of private property. The intent is, that there shall be a legal
private ownership, and that the legal owners shall maintain and protect the property,
for the benefit of those for whose use it was designed. Who ever endowed the public?
Who ever appointed a legislature to administer his charity? Or who ever heard,
before, that a gift to a college, or hospital, or an asylum, was, in reality,
nothing but a gift to the state? The state of Vermont is a principal donor to
Dartmouth College. The lands given lie in that state. This appears in the special
verdict. Is Vermont to be considered as having intended a gift to the state of
New Hampshire in this case; as it has been said is to be the reasonable construction
of all donations to the college? The legislature of New Hampshire affects to represent
the public, and therefore, claims a right to control *575 all property
destined to public use. What
hinders Vermont from considering herself equally the representative of the public,
and from resuming her grants, at her own pleasure? Her right to do so is less
doubtful, than the power of New Hampshire to pass the laws in question. In
University v. Foy, 2 Hayw. 310, the supreme court of North Carolina
pronounced unconstitutional and void, a law repealing a grant to the University
of North Carolina; although that university was originally erected and endowed
by a statute of the state. That case was a grant of lands, and the court decided,
that it could not be resumed. This is the grant of a power and capacity to hold
lands. Where is the difference of the cases, upon principle? In Terrett
v. Taylor, 9 Cranch 43, this court decided, that a legislative grant or
confirmation of lands, for the purposes of moral and religious instruction, could
no more be rescinded than other grants. The nature of the use was not holden to
make any difference. A grant to a parish or church, for the purposes which have
been mentioned, cannot be distinguished, in respect to the title it confers, from
a grant to a college for the promotion of piety and learning. To the same purpose
may be cited, the case of Pawlet v. Clark. The state of Vermont,
by statute, in 1794, granted to the respective towns in that state, certain glebe
lands, lying within those towns, for the sole use and support of religious worship.
In 1799, an act was passed, to repeal the act of 1794; but this court declared
that the act of 1794, 'so far as it *576 granted the glebes to the towns,
could not afterwards be repealed by the legislature, so as to divest the rights
of the towns under the grant.' 9 Cranch 292. It will be for the other side to
show, that the nature of the use decides the question, whether the legislature
has power to resume its grants. It will be for those who maintain such a doctrine,
to show the principles and cases upon which it rests. It will be for them also,
to fix the limits and boundaries of their doctrine, and to show what are, and
what are not, such uses as to give the legislature this power of resumption and
revocation. And to furnish an answer to the cases cited, it will be for them further
to show, that a grant for the use and support of religious worship, stands on
other ground than a grant for the promotion of piety and learning. I
hope enough has been said, to show, that the trustees possessed vested liberties,
privileges and immunities, under this charter; and that such liberties, privileges
and immunities, being once lawfully obtained and vested, are as inviolable as
any vested rights of property whatever. Rights to do certain acts, such, for instance,
as the visitation and superintendence of a college, and the appointment of its
officers, may surely be vested rights, to all legal intents, as completely as
the right to posses property. A late learned judge of this court has said, when
I say, that a right is vested in a citizen, I mean, that he has the power to do
certain actions, or to possess certain things, according to the law of the land.
3 Dall. 394. *577
If such be the true nature of the plaintiffs' interests under this charter, what
are the articles in the New Hampshire bill of rights which these acts infringe?
They infringe the second article; which says, that the citizens of the state have
a right to hold and possess property. The plaintiffs had a legal property in this
charter; and they had acquired property under it. The acts deprive them of both;
they impair and take away the charter; and they appropriate the property to new
uses, against their consent. The plaintiffs cannot now hold the property acquired
by themselves, and which this article says, they have a right to hold. They infringe
the twentieth article. By that article it is declared, that in questions of property,
there is a right to trial; the plaintiffs are divested, without trial or judgment.
They infringe the twenty-third article. It is therein declared, that no retrospective
laws shall be passed; the article bears directly on the case; these acts must
be deemed retrospective, within the settled construction of that term. What a
retrospective law is, has been decided, on the construction of this very article,
in the circuit court for the first circuit. The learned judge of that circuit,
says, 'every statute which takes away or impairs vested rights, acquired under
existing laws, must be deemed retrospective.' Society v. Wheeler,
2 Gallis. 103. That all such laws are retrospective, was decided also in the case
of Dash v. Van Kleeck, 7 Johns. 477, where a most learned *578
judge quotes this article from the constitution of New Hampshire, with manifest
approbation, as a plain and clear expression of those fundamental and unalterable
principles of justice, which must lie at the foundation of every free and just
system of laws. Can any man deny, that the plaintiffs had rights, under the charter,
which were legally vested, and that by these acts, those rights are impaired?
[FN7] These *579 acts infringe also, the thirty- seventh article of the
constitution of New Hampshire; which says, that the powers of government shall
be kept separate. By these acts, the legislature assumes to exercise a judicial
power; it declares a forfeiture, and resumes franchises, once granted, without
trial or hearing. If the constitution be not altogether waste paper, it has restrained
the power of the legislature in these particulars. If it has any meaning, it is,
that the legislature shall pass no act, directly and manifestly impairing private
property, and private privileges. It shall not judge, by act; it shall not decide,
by act; it shall not deprive, by act. But it shall leave all these things to be
tried and adjudged by the law of the land.
FN7
'It is a principle in the English law, as ancient as the law itself,' says Chief
Justice KENT, in the case last cited, 'that a statute, even of its omnipotent
parliament, is not to have a retrospective effect. Nova constitutio futuris
formam imponere debet, et non praeteritis. (Bracton, lib. 4, fol. 228; 2 Inst.
292.) The maxim in Bracton was probably taken from the civil law, for we find
in that system the same principle, that the law-giver cannot alter his mind, to
the prejudice of a vested right. Nemo potest mutare consilium suum in alterius
injuriam. (Dig. 50, 17, 75.) This maxim of Papinian is general in its terms;
but Dr. Taylor (Elements of the Civil Law 168) applies it directly as a restriction
upon the law-giver; and a declaration in the code leaves no doubt as to the sense
of the civil law. Leges et constitutiones futuris certum est dare formam negotiis,
non ad facta praeterita revocari nisi nominatim, et de praeterito tempore, et
adhue pendentibus negotiis cautum sit. (Cod. 1, 14, 7.) This passage, according
to the best interpretation of the civilians, relates not merely to future suits,
but to future, as contradistinguished from past, contracts and vested rights.
(Perezii, Praelec. hit.) It is, indeed, admitted, that the prince may enact a
retrospective law, provided it be done expressly; for the will of the prince,
under the despotism of the Roman emperors, was paramount to every obligation.
Great latitude was anciently allowed to legislative expositions of statutes; for
the separation of the judicial, from the legislative, power, was not then distinctly
known or prescribed. The prince was in the habit of interpreting his own laws
for particular occasions. This was called the interlocutio principis; and
this, according to Huber's definition, was, quando principes inter partes loquuntur,
et jus dicunt. (Praelec. Juris. Rom., vol. 2, 545.) No correct civilian, and
especially, no proud admirer of the ancient republic (if any such then existed),
could have reflected on this interference with private rights, and pending suits
without disgust and indignation; and we are rather surprised to find, that under
the violent and irregular genius of the Roman government, the principle before
us should have been acknowledged and obeyed to the extent in which we find it.
The fact shows, that it must be founded in the clearest justice. Our case is happily
very different from that of the subjects of Justinian. With us, the power of the
law-giver is limited and defined; the judicial is regarded as a distinct, independent
power; private rights have been better understood, and more exalted in public
estimation, as well as secured by provisions dictated by the spirit of freedom,
and unknown to the civil law. Our constitutions do not admit the power assumed
by the Roman prince; and the principle we are considering, is now to be regarded
as sacred.' The
fifteenth article has been referred *580 to before. It declares, that no
one shall be 'deprived of his property, immunities or privileges, but by the judgment
of his peers, or the law of the land.' Notwithstanding the light in which the
learned judges in New Hampshire viewed the rights of the plaintiffs under the
charter, and which has been before adverted to, it is found to be admitted, in
their opinion, that those rights are privileges, within the meaning of this fifteenth
article of the bill of rights. Having quoted that article, they say, 'that the
right to manage the affairs of this college is a privilege, within the meaning
of this clause of the bill of rights, is not to be doubted.' In my humble opinion,
this surrenders the point. To resist the effect of this admission, however, the
learned judges add, 'but how a privilege can be protected from the operation of
the law of the land, by a clause in the constitution, declaring that it shall
not be taken away, but by the law of the land, is not very easily understood.'
This answer goes on the ground, that the acts in question are laws of the land,
within the meaning of the constitution. If they be so, the argument drawn from
this article is fully answered. If they be not so, it being admitted that the
plaintiffs' rights are 'privileges,' within the meaning of the article, the argument
is not answered, and the article is infringed by the acts. Are then these acts
of the legislature, which affect only particular persons and their particular
privileges, laws of the land? Let this question be answered by the text of Blackstone:
'And first, it (i. e., law) is a rule; not a transient sudden order from
a superior, to or concerning a particular *581 person; but something permanent,
uniform and universal. Therefore, a particular act of the legislature, to confiscate
the goods of Titius, or to attaint him of high treason, does not enter into the
idea of a municipal law; for the operation of this act is spent upon Titius only,
and has no relation to the community in general; it is rather a sentence than
a law.' 1 Bl. Com. 44. Lord Coke is equally decisive and emphatic. Citing and
commenting on the celebrated 29th chap. of magna charta, he says, 'no man
shall be disseised, &c., unless it be by the lawful judgment, that is, verdict
of equals, or by the law of the land, that is (to speak it once for all), by the
due course and process of law.' 2 Inst. 46. Have the plaintiffs lost their franchises
by 'due course and process of law?' On the contrary, are not these acts 'particular
acts of the legislature, which have no relation to the community in general, and
which are rather sentences than laws?' By the law of the land, is most clearly
intended, the general law; a law, which hears before it condemns; which proceeds
upon inquiry, and renders judgment only after trial. The meaning is, that every
citizen shall hold his life, liberty, property and immunities, under the protection
of the general rules which govern society. Everything which may pass under the
form of an enactment, is not, therefore, to be considered the law of the land.
If this were so, acts of attainder, bills of pains and penalties, acts of confiscation,
acts reversing judgments, and acts directly transferring one man's *582
estate to another, legislative judgments, decrees and forfeitures, in all possible
forms, would be the law of the land. Such a strange construction would render
constitutional provisions, of the highest importance, completely inoperative and
void. It would tend directly to establish the union of all powers in the legislature.
There would be no general permanent law for courts to administer, or for men to
live under. The administration of justice would be an empty form, an idle ceremony.
Judges would sit to execute legislative judgments and decrees; not to declare
the law, or to administer the justice of the country. 'Is that the law of the
land,' said Mr. Burke, 'upon which, if a man go to Westminster Hall, and ask counsel
by what title or tenure he holds his privilege or estate, according to the law
of the land, he should be told, that the law of the land is not yet known; that
no decision or decree has been made in his case; that when a decree shall be passed,
he will then know what the law of the land is? Will this he said to be the law
of the land, by any lawyer who has a rag of a gown left upon his back, or a wig
with one tie upon his head?' That the power of electing and appointing the officers
of this college is not only a right of the trustees, as a corporation, generally,
and in the aggregate, but that each individual trustee has also his own individual
franchise in such right of election and appointment, is according to the language
of all the authorities. Lord HOLT says, 'it is agreeable to reason and the rules
of law, that a franchise should be vested in the corporation aggregate, and yet
the benefit of it to redound to the *583 particular members, and to be
enjoyed by them in their private capacity. Where the privilege of election is
used by particular persons, it is a particular right, vested in every particular
man.' 2 Ld. Raym. 952. It
is also to be considered, that the president and professors of this college have
rights to be affected by these acts. Their interest is similar to that of fellows
in the English colleges; because they derive their living wholly, or in part,
from the founder's bounty. The president is one of the trustees or corporators.
The professors are not necessarily members of the corporation; but they are appointed
by the trustees, are removable only by them, and have fixed salaries, payable
out of the general funds of the college. Both president and professors have freeholds
in their offices; subject only to be removed by the trustees, as their legal visitors,
for good cause. All the authorities speak of fellowships in colleges as freeholds,
notwithstanding the fellows may be liable to be suspended or removed, for misbehavior,
by their constituted visitors. Nothing could have been less expected, in this
age, than that there should have been an attempt, by acts of the legislature,
to take away these college livings, the inadequate, but the only support of literary
men, who have devoted their lives to the instruction of youth. The president and
professors were appointed by the twelve trustees. They were accountable to nobody
else, and could be removed by nobody else. They accepted their offices on this
tenure. Yet the legislature has appointed *584 other persons, with power
to remove these officers, and to deprive them of their livings; and those other
persons have exercised that power. No description of private property has been
regarded as more sacred than college livings. They are the estates and freeholds
of a most deserving class of men; of scholars who have consented to forego the
advantages of professional and public employments, and to devote themselves to
science and literature, and the instruction of youth, in the quiet retreats of
academic life. Whether to dispossess and oust them; to deprive them of their office,
and turn them out of their livings; to do this, not by the power of their legal
visitors, or governors, but by acts of the legislature; and to do it, without
forfeiture, and without fault; whether all this be not in the highest degree an
indefensible and arbitrary proceeding, is a question, of which there would seem
to be but one side fit for a lawyer or a scholar to espouse. Of all the attempts
of James 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: and
yet, that attempt was nothing but to put out one president and put in another.
The president of that college, according to the charter and statutes, is to be
chosen by the fellows, who are the corporators. There being a vacancy, the king
chose to take the appointment out of the hands of the fellows, the legal electors
of a president, into his own hands. He, therefore, sent down his mandate, commanding
the fellows to admit, for president, a person of his nomination; and inasmuch
as this was directly against *585 the charter and constitution of the college,
he was pleased to add a non obstante clause, of sufficiently comprehensive
import. The fellows were commanded to admit the person mentioned in the mandate,
'any statute, custom or constitution to the contrary notwithstanding, wherewith
we are graciously pleased to dispense, in this behalf.' The fellows refused obedience
to this mandate, and Dr. Hough, a man of independence and character, was chosen
president by the fellows, according to the charter and statutes. The king then
assumed the power, in virtue of his prerogative, to send down certain commissioners
to turn him out; which was done accordingly; and Parker, a creature suited to
the times, put in his place. And because the president, who was rightfully and
legally elected, would not deliver the keys, the doors were broken open. 'The
nation, as well as the university,' says Bishop Burnet, [FN8] 'looked on all these
proceedings with just indignation. It was thought an open piece of robbery and
burglary, when men, authorized by no legal commission, came and forcibly turned
men out of their possession and freehold.' Mr. Hume, although a man of different
temper, and of other sentiments, in some respects, than Dr. Burnet, speaks of
this arbitrary attempt of prerogative, in terms not less decisive. 'The president,
and all the fellows,' says he, 'except two, who complied, were expelled the college:
and Parker was put in possession of the office. This act of violence, of all those
which were committed during *586 the reign of James, is perhaps the most
illegal and arbitrary. When the dispensing power was the most strenuously insisted
on by court lawyers, it had still been allowed, that the statutes which regard
private property could not legally be infringed by that prorogative. Yet, in this
instance, it appeared, that even these were not now secure from invasion. The
privileges of a college are attacked; men are illegally dispossessed of their
property for adhering to their duty, to their oaths, and to their religion.' This
measure king James lived to repent, after repentance was too late. When the charter
of London was restored, and other measured of violence retracted, to avert the
impending revolution, the expelled president and fellows of Magdalen college were
permitted to resume their rights. It is evident, that this was regarded as an
arbitrary interference with private property. Yet private property was no otherwise
attacked, than as a person was appointed to administer and enjoy the revenues
of a college, in a manner and by persons not authorized by the constitution of
the college. A majority of the members of the corporation would not comply with
the king's wishes; a minority would; the object was, therefore, to make this minority,
a majority. To this end, the king's commissioners were directed to interfere in
the case, and they united with the two complying fellows, and expelled the rest;
and thus effected a change in the government of the college. The language in which
Mr. Hume, and all other writers, speak of this abortive attempt of oppression,
shows, that colleges were esteemed to be, as *587 they truly are, private
corporations, and the property and privileges which belong to them, private property,
and private privileges. Court lawyers were found to justify the king in dispensing
with the laws; that is, in assuming and exercising a legislative authority. But
no lawyer, not even a court lawyer, in the reign of king James the second, so
far as appears, was found to say, that even by this high authority, he could infringe
the franchises of the fellows of a college, and take away their livings. Mr. Hume
gives the reason; it is, that such franchises were regarded, in a most emphatic
sense, as private property. [FN9] If it could be made to appear, that the trustees
and the president and professors held their offices and franchises during the
pleasure of the legislature, and that the property holden belonged to the state,
then, indeed, the legislature have done no more than they had a right to do. But
this is not so. The charter is a charter of privileges and immunities; and these
are holden by the trustees, expressly against the state, for ever. It is admitted,
that the state, by its courts of law, can enforce the will of the donor, and compel
a faithful execution of the trust. The plaintiffs claim no exemption from legal
responsibility. They hold themselves at all times answerable to the law of the
land, for their conduct in the trust committed to them. They ask only to hold
the property of which they are owners, and the franchises which belong to them,
until they shall be found by due course and process of law to have forfeited them.
It can make no difference, *588 whether the legislature exercise the power
it has assumed, by removing the trustees and the president and professors, directly,
and by name, or by appointing others to expel them. The principle is the same,
and in point of fact, the result has been the same. If the entire franchise cannot
be taken away, neither can it be essentially impaired. If the trustees are legal
owners of the property, they are sole owners. If they are visitors, they are sole
visitors. No one will be found to say, that if the legislature may do what it
has done, it may not do anything and everything which it may choose to do, relative
to the property of the corporation, and the privileges of its members and officers. FN8
History of his Own Times, vol. 3, p. 119.1 1.
Burnet is, notoriously, an unreliable historian. Dr. Johnson said of him, and
this work, 'I do not believe, that Burnet intentionally lied; but he was so much
prejudiced, that he took no pains to find out the truth. He was like a man who
resolves to regulate his time by a certain watch; but will not inquire whether
the watch is right or not.' FN9
See a full account of this, in State Trials, 4th ed., vol. 4, p. 262. 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 right to hold the charter, administer the
funds, and visit and govern the college, was a franchise and privilege, solemnly
granted to them. The use being public, in no way diminishes their legal estate
in the property, or their title to the franchise. There is no principle, nor any
case, which declares that a gift to such a corporation is a gift to the public.
The acts in question violate property; they take away privileges, immunities and
franchises; they deny to the trustees the protection of the law; and they are
retrospective in their operation. In all which respects, they are against the
constitution of New Hampshire. 2.
The plaintiffs contend, in the second place, that the acts in question are repugnant
to the 10th section *589 of the 1st article of the constitution of the
United States. The material words of that section are, 'no state shall pass any
bill of attainder, ex post facto law, or law impairing the obligation of
contracts.' The object of these most important provisions in the national constitution
has often been discussed, both here and elsewhere. It is exhibited with great
clearness and force by one of the distinguished persons who framed that instrument.
'Bills of attainder, ex post facto laws, and laws impairing the obligation
of contracts, are contrary to the first principles of the social compact, and
to every principle of sound legislation. The two former are expressly prohibited
by the declarations prefixed to some of the state constitutions, and all of them
are prohibited by the spirit and scope of these fundamental charters. Our own
experience has taught us, nevertheless, that additional fences against these dangers
ought not to be omitted. Very properly, therefore, have the convention added this
constitutional bulwark in favor of personal security and private rights; and I
am much deceived, if they have not, in so doing, as faithfully consulted the genuine
sentiments as the undoubted interests of their constituents. The sober people
of America are weary of the fluctuating policy which has directed the public councils.
They have seen with regret, and with indignation, that sudden changes, and legislative
interferences, in cases affecting personal rights, become jobs in the hands of
enterprising and influential speculators; and snares to the more industrious and
less informed part of the *590 community. They have seen, too, that one
legislative interference is but the link of a long chain of repetitions; every
subsequent interference being naturally produced by the effects of the preceding.'
[FN10] It has already been decided in this court, that a grant is a contract,
within the meaning of this provision; and that a grant by a state is also a contract,
as much as the grant of an individual. [FN11] *591 It has also been decided,
that a grant by a state before the revolution, is as much to be protected as a
grant since. New Jersey v. Wilson, 7 Cranch 264. But the case of
Terrett v. Taylor, before cited, is of all others most pertinent to
the present argument. Indeed, the judgment of the court in that case seems to
leave little to be argued or decided in this. [FN12] This court, then, does not
admit the doctrine, *592 that a legislature can repeal statutes creating
private corporations. If it cannot repeal them altogether, of course, it cannot
repeal any part of them, or impair them, or essentially alter them, without the
consent of the corporators. If, therefore, it has been shown, that this college
is to be regarded as a private charity, this case is embraced within the very
terms of that decision. A grant of corporate powers and privileges is as much
a contract, as a grant of land. What proves all charters of this sort to be contracts,
is, that they must be accepted, to give them force and effect. If they are not
accepted, they are void. And in the case of an existing corporation, if a new
charter is given it, it may even accept part, and reject the rest. In Rex
v. Vice-Chancellor of Cambridge, 3 Burr. 1656, Lord MANSFIELD says, 'there
is a vast deal of difference between a new charter granted to a new corporation
(who must take it as it is given), and a new charter given to a corporation already
in being, and acting either under a former charter, or under prescriptive usage.
The latter, a corporation already existing, are not obliged to accept the new
charter in toto, and to receive either all or none of it; they may act
partly under it, and *593 partly under their old charter, or prescription.
The validity of these new charters must turn upon the acceptance of them.' In
the same case, Mr. Justice WILMOT says, 'it is the concurrence and acceptance
of the university, that gives the force to the charter of the crown.' In the
King v. Pasmore, 3 T. R. 240, Lord KENYON observes, 'some things are
clear: when a corporation exists, capable of discharging its functions, the crown
cannot obtrude another charter upon them; they may either accept or reject it.'
[FN13] In all cases relative to charters, the acceptance of them is uniformly
alleged in the pleadings. This shows the general understanding of the law, that
they are grants, or contracts; and that parties are necessary to give them force
and validity. In King v. Dr. Askew, 4 Burr. 2200, it is said, 'the
crown cannot oblige a man to be a corporator, without his consent; he shall not
be subject to the inconveniences of it, without accepting it and assenting to
it.' These terms, 'acceptance,' and 'assent,' are the very language of contract.
In Ellis v. Marshall, 2 Mass. 279, it was expressly adjudged, that
the naming of the defendant, among others, in an act of incorporation, did not,
of itself, make him a corporator; and that his assent was necessary to that end.
The court speak of the act of incorporation as a grant, and observe, 'that a man
may refuse a grant, whether from the government or an individual, seems to be
a principle too clear to require the support of authorities.' But Mr. Justice
BULLER, in King v. Pasmore, *594 furnishes, if possible,
a still more direct and explicit authority. Speaking of a corporation for government,
he says, 'I do not know how to reason on this point better than in the manner
urged by one of the relator's counsel, who considered the grant of incorporation
to be a compact between the crown and a certain number of the subjects, the latter
of whom undertake, in consideration of the privileges which are bestowed, to exert
themselves for the good government of the place.'
FN10
Letters of Publius, or The Federalist (No. 44., by Mr. Madison).
FN11
In Fletcher v. Peck, 6 Cranch 87, the court says, 'a contract is a compact
between two or more parties, and is either executory or executed. An executory
contract is one in which a party binds himself to do, or not to do, a particular
thing; such was the law under which the conveyance was made by the government.
A contract executed is one in which the object of contract is performed; and this,
says Blackstone, differs in nothing from a grant. The contract between Georgia
and the purchasers was executed by the grant. A contract executed, as well as
one which is executory, contains obligations binding on the parties. A grant,
in its own nature, amounts to an extinguishment of the right of the grantor, and
implies a contract not to re-assert that right. If, under a fair construction
of the constitution, grants are comprehended under the term contracts, is a grant
from the state excluded from the operation of the provision? Is the clause to
be considered as inhibiting the state from impairing the obligation of contracts
between two individuals, but as excluding from that inhibition, contracts made
with itself? The words themselves contain no such distinction. They are general,
and are applicable to contracts of every description. If contracts made with the
state are to be exempted from their operation, the exception must arise from the
character of the contracting party, not from the words which are employed. Whatever
respect might have been felt for the state sovereignties, it is not be disguised,
that the framers of the constitution viewed, with some apprehension, the violent
acts which might grow out of the feelings of the moment; and that the people of
the United States, in adopting that instrument, have manifested a determination
to shield themselves, and their property, from the effects of those sudden and
strong passions to which men are exposed. The restrictions on the legislative
power of the states, are obviously founded on this sentiment; and the constitution
of the United States contains what may be deemed a bill of rights, for the people
of each state.' FN12
'A private corporation,' says the court, 'created by the legislature, may lose
its franchises by a misuser or non-user of them; and they may be
resumed by the government, under a judicial judgment, upon a quo warranto
to ascertain and enforce the forfeiture. This is the common law of the land, and
is a tacit condition annexed to the creation of every such corporation. Upon a
change of government, too, it may be admitted, that such exclusive privileges
attached to a private corporation as are inconsistent with the new government,
may be abolished. In respect, also, to public corporations which exist only for
public purposes, such as counties, towns, cities, &c., the legislature may,
under proper limitations, have a right to charge, modify, enlarge or restrain
them, securing, however, the property for the use of those for whom and at whose
expense it was originally purchased. But that the legislature can repeal statutes
creating private corporations, or confirming to them property already acquired
under the faith of previous laws, and by such repeal, can vest the property of
such corporations exclusively in the state, or dispose of the same to such purposes
as they please, without the consent or default of the corporators, we are not
prepared to admit; and we think ourselves standing upon the principles of natural
justice, upon the fundamental laws of every free government, upon the spirit and
letter of the constitution of the United States, and upon the decisions of most
respectable judicial tribunals, in resisting such a doctrine.' FN13
See also 1 Kyd on Corp. 65. This
language applies, with peculiar propriety and force, to the case before the court.
It was in consequence of the 'privileges bestowed,' that Dr. Wheelock and his
associates undertook to exert themselves for the instruction and education of
youth in this college; and it was on the same consideration, that the founder
endowed it with his property. And because charters of incorporation are of the
nature of contracts, they cannot be altered or varied, but by consent of the original
parties. If a charter be granted by the king, it may be altered by a new charter,
granted by the king, and accepted by the corporators. But if the first charter
be granted by parliament, the consent of parliament must be obtained to any alteration.
In King v. Miller, 6 T. R. 277, Lord KENYON says, 'where a corporation
takes its rise from the king's charter, the king, by granting, and the corporation,
by accepting, another charter, may alter it, because it is done with the consent
of all the parties who are competent to consent to the alteration.' [FN14] There
are, in this *595 case, all the essential constituent parts of a contract.
There is something to be contracted about; there are parties, and there are plain
terms in which the agreement of the parties, on the subject of the contract, is
expressed; there are mutual considerations and inducements. The charter recites,
that the founder, on his part, has agreed to establish his seminary in New Hampshire,
and to enlarge it, beyond its original design, among other things, for the benefit
of that province; and thereupon, a charter is given to him and his associates,
designated by himself, promising and assuring to them, under the plighted faith
of the state, the right of governing the college, and administering its concerns,
in the manner provided in the charter. There is a complete and perfect grant to
them of all the power of superintendence, visitation and government. Is not this
a contract? If lands or money had been granted to him and his associates, for
the same purposes, such grant could not be rescinded. And is there any difference,
in legal contemplation, between a grant of corporate franchises, and a grant of
tangible property? No such difference is recognised in any decided case, nor does
it exist in the common apprehension of mankind.
FN14
See Ex parte Bolton School, 2 Bro. C. C. 662. It
is, therefore, contended, that this case falls within the true meaning of this
provision of the constitution, as expounded in the decisions of this court; that
the charter of 1769 is a contract, a stipulation or agreement: mutual in its considerations,
express and formal in its terms, and of a most binding and solemn nature. That
the acts in question impair this contract, *596 has already been sufficiently
shown. They repeal and abrogate its most essential parts. Much
has heretofore been said on the necessity of admitting such a power in the legislature
as has been assumed in this case. Many cases of possible evil have been imagined,
which might otherwise be without remedy. Abuses, it is contended, might arise
in the management of such institutions, which the ordinary courts of law would
be unable to correct. But this is only another instance of that habit of supposing
extreme cases, and then of reasoning from them, which is the constant refuge of
those who are obliged to defend a cause which, upon its merits, is indefensible.
It would be sufficient to say, in answer, that it is not pretended, that there
was here any such case of necessity. But a still more satisfactory answer is,
that the apprehension of danger is groundless, and therefore, the whole argument
fails. Experience has not taught us, that there is danger of great evils, or of
great inconvenience, from this source. Hitherto, neither in our own country nor
elsewhere, have such cases of necessity occurred. The judicial establishments
of the state are presumed to be competent to prevent abuses and violations of
trust, in cases of this kind, as well as in all others. If they be not, they are
imperfect, and their amendment would be a most proper subject for legislative
wisdom. Under the government and protection of the general laws of the land, those
institutions have always been found safe, as well as useful. They go on with the
progress of society, accommodating themselves easily, without sudden change or
*597 violence, to the alterations, which take place in its condition; and
in the knowledge, the habits and pursuits of men. The English colleges were founded
in Catholic ages. Their religion was reformed with the general reformation of
the nation; and they are suited perfectly well to the purpose of educating the
Protestant youth of modern times. Dartmouth College was established under a charter
granted by the provincial government; but a better constitution for a college,
or one more adapted to the condition of things under the present government, in
all material respects, could not now be framed. Nothing in it was found to need
alteration at the revolution. The wise men of that day saw in it one of the best
hopes of future times, and commended it, as it was, with parental care, to the
protection and guardianship of the government of the state. A charter of more
liberal sentiments, or wiser provisions, drawn with more care, or in a better
spirit, could not be expected at any time, or from any source. The college needed
no change in its organization or government. That which it did need was the kindness,
the patronage, the bounty of the legislature; not a mock elevation to the character
of a university, without the solid benefit of a shilling's donation, to sustain
the character; not the swelling and empty authority of establishing institutes
and other colleges. This unsubstantial pageantry would seem to have been in derision
of the scanty endowment and limited means of an unobtrusive, but useful and growing
seminary. Least of all, was there a necessity, or pretence of necessity, to infringe
its legal rights, violate its franchises *598 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 constitution,
these restrictions ought to be disregarded. It is enough to say, that the people
have thought otherwise. They have, most wisely, chosen to take the risk of occasional
inconvenience, from the want of power, in order that there might be a settled
limit to its exercise, and a permanent security against its abuse. They have imposed
prohibitions and restrains; and they have not rendered these altogether vain and
nugatory, by conferring the power of dispensation. If inconvenience should arise,
which the legislature cannot remedy under the power conferred upon it, it is not
answerable for such inconvenience. That which it cannot do within the limits prescribed
to it, it cannot do at all. No legislature in this country is able, and may the
time never come, when it shall be able, to apply to itself the memorable expression
of a Roman pontiff: 'Licet hoc de jure non possumus, volumus tamen de plenitudine
potestatis.' The
case before the court is not of ordinary importance, nor of every-day occurrence.
It affects not this college only, but every college, and all the literary institutions
of the country. They have flourished, hitherto, and have become in a high degree
respectable and useful to the community. They have all a common principle of existence,
the inviolability *599 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 fluctuation of political opinions. If the franchise
may be, at any time, taken away or impaired, the property also may be taken away,
or its use perverted. Benefactors will have no certainty of effecting the object
of their bounty; and learned men will be deterred from devoting themselves to
the service of such institutions, from the precarious title of their offices.
Colleges and halls will be deserted by all better spirits, and become a theatre
for the contention of politics; party and faction will be cherished in the places
consecrated to piety and learning. These consequences are neither remote nor possible
only; they are certain and immediate. When
the court in North Carolina declared the law of the state, which repealed a grant
to its university, unconstitutional and void, the legislature had the candor and
the wisdom to repeal the law. This example, so honorable to the state which exhibited
it, is most fit to be followed on this occasion. And there is good reason to hope,
that a state which has hitherto been so much distinguished for temperate councils,
cautious legislation, and regard to law, will not fail to adopt a course which
will accord with her highest and best interest, and in no small degree, elevate
her reputation. It was, for many obvious reasons, most anxiously desired, that
the question of the power of the legislature over this charter should have been
finally decided in the state court. An earnest hope was entertained, *600
that the judges of that court might have viewed the case in a light favorable
to the rights of the trustees. That hope has failed. It is here that those rights
are now to be maintained, or they are prostrated for ever. Omnia alia perfugia
bonorum, subsidia, consilia, auxilia jura ceciderunt. Quem enim alium appellem?
quem obtestor? quem implorem? Nisi hoc loco, nisi apud vos, nisi per vos, judices,
salutem nostram, quoe spe exigua extremaque pendet, temerimus; nihil est proeterea
quo confugere possimus. Holmes,
for the defendant in error, argued, that the prohibition in the constitution of
the United States, which alone gives 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 relating merely to a matter
of civil institution, which every society 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 relations of the marriage state, without the consent
of both the parties, and thus come clearly within the letter of the prohibition.
But surely, no one will contend, that there is locked up in this mystical clause
of the constitution a prohibition to the states to grant divorces, a power
*601 peculiarly appropriate to domestic legislation, and which has been exercised
in every age and nation where civilization has produced that corruption of manners,
which, unfortunately, requires this remedy. Still less can a contract concerning
a public 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 constitutions; with this
exception only, that the Union should guaranty to each state a republican form
of government, and defend it against domestic insurrection and rebellion. Beyond
this, the authorities of the Union have no right to interfere in the exercise
of the powers reserved to the state. They are sovereign and independent in their
own sphere. If, for example, the legislature of a particular state should attempt
to deprive the judges of its courts (who, by the state constitution, held their
places during good behavior) of their offices, 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 political faction, would
it be pretended, that the minority could resist such a law, upon the ground of
its impairing the obligation of a contract? Must not the remedy, if anywhere existing,
be found in the interposition of some state authority to enforce the provisions
of the state constitution? The
education of youth, and the encouragement of the arts and sciences, is one of
the most *602 important objects of civil government. Vattel, lib. 1, c.
11, § 112-13. By our constitutions, it is left exclusively to the states, with
the exception of copyrights and patents. It was in the exercise of this duty of
government, that this charter was originally granted to Dartmouth College. Even
when first granted, under the colonial government, it was subject 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 parliament. 1 Bl. Com.
485. The revolution, which separated the colony from the parent county, dissolved
all connection between this corporation and the crown of Great Britain. But it
did not destroy that supreme authority which every political society has over
its public institutions; that still remained, and was transferred to the people
of New Hampshire. They have not relinquished it to the government of the United
States, or to any department of that government. Neither does the constitution
of New Hampshire confirm the charter of Dartmouth College, so as to give it the
immutability of the fundamental law. On the contrary, the constitution of the
state admonishes the legislature of the duty of encouraging science and literature,
and thus seems to suppose its power of control over the scientific and literary
institutions of the state. The legislature had, therefore, a right to modify this
trust, the original object of which, was the education of the Indian and English
youth of the province. It is not necessary to contend, that it had the right of
wholly diverting *603 the fund from the original object of its pious and
benevolent founders. Still, it must be insisted, that a regal grant, with a 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 exigencies of are volution 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 government,
can be accomplished or confirmed by a writ of quo warranto or mandamus.
We do not say, that the corporation has forfeited its charter for misuser;
but that it has become unfit for use, by a change of circumstances. Nor does the
lapse of time from 1776 to 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 public nature, cannot hold its privileges by prescription. Our argument 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 contract as is contemplated
by the constitution of the United States; that it is not a contract of a private
nature, concerning property or other private interests: but that it is a grant
of a public nature, *604 for public purposes, relative to the internal
government and police of a state, and therefore, liable to be revoked or modified
by the supreme power of that state. Supposing,
however, this 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 of June, and the 18th of December
1816, shows that the legislative will and intention was to amend the charter,
and enlarge and improve the corporation. If, by a technical fiction, the grant
of the charter can be considered as a contract between the king (or the state)
and the corporators, the obligation of that contract is not impaired; but is rather
enforced, by these acts, which continue 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 addition to the number of the colleges, the creation
of new fellowships, or an increase of 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 ASHHURST, in the case of the King
v. Pasmore, 3 T. R. 244, '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 become members of the new incorporation, but refuse
to accept, it is their own *605 fault.' What rights, which are secured
by this alleged contract, are invaded by the acts of the legislature? Is it the
right of property, or of privileges? It is not the former, because the corporate
body is not deprived of the least portion of its property. If it be the personal
privileges of the corporators that are attacked, these must be either a common
and universal privilege, such as the right of suffrage, for interrupting the exercise
of which an action would lie; or they must be monopolies and exclusive privileges,
which are always subject to be regulated and modified by the supreme power of
the state. Where a private proprietary interest is coupled with the exercise of
political power, or a public trust, the charters of corporations have frequently
been amended by legislative authority. Gray v. Portland Bank, 3
Mass. 364; Commonwealth v. Bird, 12 Ibid. 443. 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
interfere to amend, without the consent of the grantees. The grant of such a charter
might, perhaps, be considered as analogous to a contract between the state and
private individuals, affecting 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 civil government. Its amendment,
or even repeal, can no more be considered as the breach of a contract, than the
amendment or repeal of any other law. Such
repeal or amendment is an ordinary act of public *606 legislation, and
not an act impairing the obligation of a contract between the government and private
citizens, under which personal immunities or proprietary interests are vested
in them. The
Attorney-General, on the same side, stated, that the only question properly
before court was, whether the several acts of the legislature of New Hampshire,
mentioned in the special verdict, are repugnant to that clause of 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?' Beside
its intrinsic difficulty, the extreme delicacy of this question is evinced by
the sentiments expressed by the court, whenever it has been called to act on such
a question. Calder v. Bull, 3 Dall. 392, 394, 395; Fletcher
v. Peck, 6 Cranch 87; New Jersey v. Wilson, 7 Ibid. 164;
Terrett v. Taylor, 9 Ibid. 43. In the case of Fletcher v.
Peck, the court says, 'The question whether a law be void for its repugnancy
to the constitution, is, at all times, a question of much delicacy, which ought
seldom, if ever, to be decided in the affirmative, in a doubtful case. The court,
when impelled by duty to render such a judgment, would be unworthy of its station,
could it be unmindful of the solemn obligation which that station imposes. But
it is not on slight implication, and vague conjecture, that the legislature is
to be pronounced to have transcended its powers, and its acts are to be considered
as void. The opposition between the constitution and the law should be such
*607 that the judge feels a clear and strong conviction of their incompatibility
with each other.' 6 Cranch 128. In Calder v. Bull, 3 Dall. 395,
Mr. Justice CHASE expressed himself with his usual emphatic energy, and said,
'I will not decide any law to be void, but in a very clear case.' It is, then,
a very clear case, that these acts of New Hampshire are repugnant to the constitution
of the United States? 1.
Are they bills of attainder? The elementary writers inform us, that an attainder
is 'the stain or corruption of the blood of the criminal capitally condemned.'
4 Bl. Com. 380. True it is, that the Chief Justice says, in Fletcher v.
Peck, 6 Cranch 138, that a bill of attainder may affect 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 was 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 the criminal, as the regular and inevitable consequences of a capital
conviction at common law. Statutes sometimes pardon the attainder, and merely
forfeit the estate; but this forfeiture is always complete and entire. In the
present case, however, it cannot be pretended, that any part of the estate of
the trustees is forfeited, and, if a part, certainly not the whole. 2.
Are these acts 'laws impairing the obligation *608 of contracts?' The mischiefs
actually existing at the time the constitution was established, and which were
intended to be remedied by this prohibitory clause, will show the nature of the
contracts contemplated by its authors. It was the inviolability of private contracts,
and private rights acquired under them, which was intended to be protected; [FN15]
and not contracts which are, in their nature, matters of civil police, nor grants
by a state, of power, and even property, to individuals, in trust to be administered
for purposes merely public. 'The prohibitions not to make anything 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 inserted to secure private
rights.' Calder v. Bull, 3 Dall. 390. The cases determined in this
court, illustrate the same construction of this clause of the constitution.
Fletcher v. Peck was a case where a state legislature attempted to
revoke its grant, so as to divest a beneficial estate in lands; a vested estate;
an actual conveyance to individuals as their private property. 6 Cranch 87. In
the case of New Jersey v. Wilson, there was an express contract,
contained in a public treaty of cession 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 public faith *609 solemnly
pledged. 7 Cranch 164. Terrett v. Taylor was also a case of an attempt
to divest an interest in lands actually vested under an act amounting to a contract.
9 Ibid. 43. In all those 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 signification of that term. But this is an attempt
to extend its obvious and natural meaning, and to apply it, by a species of legal
fiction, to a class of cases which have always been supposed to be within the
control of the sovereign power. Charters to public corporations, for purposes
of public policy, are necessarily subject to the legislative discretion, which
may revoke or modify them, as the continually fluctuating 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 their office
in another age, or under another government.
FN15
The Federalist, No. 44; 1 Tucker's Bl. Com. part 1, Appendix, 312. This
charter is said to be a contract between Doctor Wheelock and the King; a contract
founded on a donation of private property by Doctor Wheelock. It is hence inferred,
that it is a private eleemosynary corporation; and the right of visitation is
said to be in the founder and heirs; and that the state can have no right to interfere,
because it is neither the founder of this charity, nor contributor to it. But
if the basis of this argument is removed, what becomes of the superstructure?
The fact that Doctor Wheelock was a contributor, is not found by the *610
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 Doctor 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, in clothing, maintaining
and educating them. He solicited contributions, and appointed others to solicit.
At the foundation of the college, the institution was removed from his estate.
The honors paid to him by the charter were the reward of past services, and of
the boldness, as well as piety, of the project. The state has been a contributor
of funds, and this fact is found. It is, therefore, not a private charity, but
a public institution; subject to be modified, altered and regulated by the supreme
power of the state. This
charter is not a contract, within the true intent of the constitution. The acts
of New Hampshire, varying in some degree the forms of the charter, do not impair
the abligation of a contract. In a case which is really one of contract, there
is no difficulty in ascertaining who are the contracting parties. But here they
cannot be fixed. Doctor Wheelock can only be said to be a party, on the ground
of his contributing funds, and thus being the founder and visitor. That ground
being removed, he ceases to be a party to the contract. Are the other contributors,
alluded to in the charter, and enumerated *611 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 they contract? With the King of Great Britain?
He, too, is not before the court; and has declared, by his chancellor, in the
case of the Attorney- General v. The City of London (3 Bro. C. C.
171; 1 Ves. jr. 243), that he has no longer any connection with these corporations
in America. Has the state of New Hampshire taken his place? Neither is that state
before the court, nor can it be, as a party, originally defendant. But suppose
this to be a contract between the trustees, and the people of New Hampshire. 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 has nothing to
do with stipulating the terms. The people then grant powers for their own use;
it is a contract with themselves! But
if the trustees are parties on one side, what do they give, and what do they receive?
They give their time and labor. Every society has a right to the services of its
members, in places of public trust and duty. A town appoints, under the authority
of the state, an overseer of the poor, or of the highways. He gives, reluctantly,
his labor and services; he receives nothing in return, but the privilege of giving
his labor and services. Such appointments to offices of public trust have never
been considered *612 as contracts which the sovereign authority was not
competent to rescind or modify. There can be no contract in which the party does
not receive some personal, private, individual benefit. To make this charter a
contract, and a private contract, there must be a private beneficial interest
vested in the party who pays the consideration. What is the 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 for its
government, &c. But to make these rights an interest which will constitute
the end and object of a contract, the exercise of these rights must be for the
private individual advantage of the trustees. Here, however, so far from that
being the fact, it is solely for the advantage of the public; for the interests
of piety and learning. It was upon these principles, that Lord KENYON determined,
in the case of Weller v. Foundling Hospital, 1 Peake 154, that the
governor and members of the corporation were competent witnesses, because they
were trustees of a public charity, and had no private personal interest. It is
not meant to deny, that mere right, a franchise, an incorporeal hereditament,
may be the subject of a contract; 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 suffrage, there, belongs beneficially
to the individual elector, and is to be exercised for his own exclusive advantage.
It is in relation to these town *613 corporations, that Lord KENYON speaks,
when he says, that the king cannot force a new charter upon them. Rex v.
Pasmore, 3 T. R. 244. This principle is established for the benefit of all
the corporators. It is accompanied by another principle, without which it would
never have been adopted; 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 tyranny of the crown; and by the other, they are preserved from the infinite
perpetuity of inveterate errors. But in the present case, there is no similar
qualification of the immutability of the charter, which is contended for in the
argument on the other side. But in truth, neither the original principle, nor
its qualification, apply to this case; for there is here no such beneficial interest
and individual property as are enjoyed by town corporators. 3.
But even admitting it to be a case of contract, its obligation is not impaired
by these legislative acts. What vested right has been divested? None! The former
trustees 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 substantially the same. It
is identical in all its essential constituent parts, and all its former rights
are *614 preserved and confirmed. See Mayor of Colchester v. Seaber,
3 Burr. 1866. The change of name does not change its original rights and franchises.
1 Saund. 344, n. 1; Luttrel's Case, 4 Co. 87. 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 Hampshire then became clothed with
all the powers, both of the king and parliament, over these public 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 cestuis que trust.
The legal estate was, indeed, vested in the trustees, before the revolution, by
virtue of the royal charter of 1769. But that charter was destroyed by the revolution
(Attorney- General v. City of London, 3 Bro. C. C. 171; s. c. 1
Ves. jr. 143), and the legal estate, of course, fell upon those who held the equitable
estate--upon the people. 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 the oath of allegiance to the king. But if, to avoid *615
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
institutions; 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. Hopkinson,
in reply, insisted, that the whole argument on the other side proceeded on an
assumption which was not warranted, and could not be maintained. The corporation
created by this charter is called a public corporation; its members are said to
be public officers, and agents of government. 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 acknowledged 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. Every 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 founded, as this was, by a private founder.
If this settled principle be not overthrown, there is no foundation for the defendant's
argument. We contend, that this charter is a contract between the government and
the members of the corporation created by it. It is a contract, because it is
a grant of valuable rights and privileges; and every grant implies *616
a contract not to resume the thing granted. Public offices are not created by
contract or by charter; they are provided for by general laws. Judges and magistrates
do not hold their offices under charters; these offices are created by public
laws, for public 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,
anything which likens them to public political agents. Their duties are such as
they themselves have chosen to assume, in relation to a fund created by private
benefaction, for charitable uses. These duties relate to the instruction of youth;
but instructors of youth are not public officers. The
argument on the other side, if it proves anything, will prove that professors,
masters, preceptors and tutors, are all political persons and public officers;
and that all education is necessarily and exclusively the business of the state.
[FN16] The confutation of such an argument lies in stating it. The trustees of
this college perform no duties, and have no responsibility in any way connected
with the civil government of the state. They derive no compensation for their
services from the public treasury. They are the gratuitous administrators of a
private bounty; the trustees of a literary establishment, standing, in contemplation
of law, on the same foundation as hospitals are other charities. It is true, that
a college, in a popular sense, is a public institution, because its uses are public,
and its benefits may be enjoyed by all who choose to enjoy them. *617 But
in a legal and technical sense, they are not public institutions, but private
charities. Corporations may, therefore, be very well said to be for public use,
of which the property and privileges are yet private. Indeed, there may be supposed
to be an ultimate reference to the public good, in granting all charters of incorporation;
but this does not change the property from private to public. If the property
of this corporation be public property, that is, property belonging to the state,
when did it become so? It was once private property; when was it surrendered to
the public? The object in obtaining the charter, was not, surely, to transfer
the property to the public, but to secure it for ever in the hands of those with
whom the original owners saw fit to intrust it. Whence then, that right of ownership
and control over this property, which the legislature of New Hampshire has undertaken
to exercise? The distinction between public, 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 public 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
pleasure might prescribe? FN16
This appears to be the prevailing idea of the present day; the people are taxed
for the support of state schools, and the payment of state school-masters, as
state officers, whether they can, in conscience, make use of these state institutions,
or not. What would have been thought of this in 1819? The
property of this college was private property, before the charter; and the charter
has wrought no change in the nature or title of this property. The school had
existed as a charity school, *618 for years before the charter was granted.
During this time, it was manifestly a private charity. The case cited from Atkyns,
shows, that a charter does not make a charity more public, but only 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 purposes 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 purpose to which the property was to be used, was the
consideration on the part of the government for granting the charter. The perpetuity
which it was calculated to give to the charity, was the founder's inducement to
solicit it. By this charter, the public faith is solemnly pledged, that the arrangement
thus made shall be perpetual. In consideration that the founder would devote his
property to the purposes beneficial to the public, the government has solemnly
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 public, the government may,
for that reason, assume the control 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 unsound in morality and in law. *619
The founder proposed to appropriate his property, and to render his services,
upon condition of receiving a charter which should secure to him and his associates
certain privileges and immunities. He undertook the discharge of certain duties,
in consideration of obtaining certain rights. There are rights and duties on both
sides. On the part of the founder, there is the duty of appropriating 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, according
to the terms of the charter, for ever. On the part of the government, there is
the duty of maintaining and protecting 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 injustice and
violence. Yet the attempt now is, to break the mutuality of this stipulation;
to hold the founder's property, and yet take away that which was given him as
the consideration 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 restoring the consideration which it received for making the
grant. Such a pretence may suit despotic power. It may succeed, 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 *620 not always unlawful,
and where neither the fundamental constitution of the government sets and limits
to power, nor any just sentiment or moral feeling affords a practical restraint
against a power which in its theory is unlimited. But it cannot prevail in the
United States, where power is restrained by constitutional barriers, and where
no legislature is, even in theory, invested with all sovereign powers. Suppose,
Dr. Wheelock had chosen to establish and perpetuate this charity, by his last
will, or by a deed, in which he had given the property, appointed the trustees,
provided for their succession, and prescribed their duties. Could the legislature
of New Hampshire have broken in upon this gift, changed its parties, assumed the
appointment of the trustees, abolished its stipulations and regulations, or imposed
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 general and implied protection of the law. How is it, in our case? Why,
in addition to the general and implied protection afforded to all rights and all
property, it has an express, specific, covenanted assurance of protection and
inviolability, given on good and sufficient considerations, in the usual manner
of contracts between individuals. There can be no doubt that, in contemplation
of law, a charter, such as this, is a contract. It takes effect only with the
assent of those to whom it is granted. Laws enjoin duties, 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 *621 only because they have accepted
the charter, and assented to its terms. But
taking this to be a contract, the argument of the defendant is, that it is not
such a contract as the constitution of the United States protects. But why not?
The constitution 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. The
attorney-general has insisted, that Dr. Wheelock was not the founder of this college;
that other donors have better 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 the founder, fails. The first answer to this is, that the charter declares
Dr. Wheelock to be the founder in express terms. It also recites facts, which
would show him to be the 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 defendant'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
power was assigned to the trustees, by the charter, and it, therefore, is of no
importance whether the founder was one individual or another. It *622 is
narrowing the ground of our argument to suppose, that we rest it on the particular
facts of Dr. Wheelock's being founder; although the 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 description. By the charter, all proper powers of
government are given to the trustees, and this makes them visitors; and from the
time of the acceptance of the charter, no visitatorial power remained in the founder
or his heirs. This is the clear doctrine of the case of Green v. Rutherforth,
which has been cited, and which is supported by all the other cases. Indeed, we
need not stop here in the argument. We might go further, and contend, that if
there were no private founder, the trustees would pass the visitatorial power.
Where there are charters, vesting the usual and proper powers of government in
the trustees, they thereby become the visitors, and the founder retains no visitatorial
power, although that founder be the king. 2 Ves. 328; 1 Ibid. 78. Even, then,
if this college had originated with the government, and been founded by it; still,
if the government had given a charter to *623 trustees, and conferred on
them the powers of visitation and control, which this charter contains, it would
by no means follow, that the government might revoke the grant, merely because
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 that institution. It is true, that others contributed; but it is to
be remembered, that they contributed to Dr. Wheelock, and to the funds while under
his private administration and control, and before the idea of a charter had been
suggested. These contributions were obtained on his solicitation, and confided
to his trust. 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 seriously denied, that the acts of the legislature of New Hampshire
impair this contract. They impair the rights of the corporation as an aggregate
body, and the rights and privileges of individual members. New duties are imposed
on the corporation; the funds are directed to new purposes; a controlling power
over all the proceedings of the trustees, is vested in a board of overseers unknown
to the charter. Nine new trustees are added to the original number, in direct
hostility with the provision of the charter. There are radical and essential alterations,
*624 which go to alter the whole organization 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, Dr. Wheelock had 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 public, the funds which he had collected,
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
impaired, by the acts of the legislature of New Hampshire. February
2d, 1819. The
opinion of the court was delivered by MARSHALL, Ch. J. This
is an action of trover, brought by the Trustees of Dartmouth College against William
H. Woodward, in the state court of New Hampshire, 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 parties,
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 1816, be valid, and binding
on the trustees, without their assent, and not repugnant to the constitution of
the United States; otherwise, it finds for the plaintiffs. *625 The superior
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 constitution 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 tribunal of a state is to be revised--an opinion which carries with it intrinsic
evidence of the diligence, of the ability, and the integrity, with which it was
formed. On more than one occasion, this court has expressed the cautious circumspection
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 constitution of
the United States, that 'no state shall pass 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 constitution.' 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 country has placed beyond legislative
control; and, however irksome the task may be, this is a duty from which we dare
not shrink. *626
The title of the plaintiffs originates in a charter dated the 13th day of December,
in the year 1769, incorporating twelve persons therein mentioned, by the name
of 'The Trustees of Dartmouth College,' granting to them and their 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 body. 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 control
the most important acts of the trustees. This board consists of twenty-five persons.
The president of the senate, the speaker of the house of representatives, of New
Hampshire, and the governor and lieutenant-governor of Vermont, for the time being,
are to be members ex officio. The board is to be completed by the governor
and council of New Hampshire, who are also empowered to fill all vacancies which
may occur. The acts of the 18th and 26th of December are supplemental to that
of the 27th 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 *627 brought this suit for the corporate property, which
is in possession of a person holding by virtue of the acts which have been stated. It
can require no argument to prove, that the circumstances of this case constitute
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 created. 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. The points for consideration are, 1. Is this contract
protected by the constitution of the United States? 2. Is it impaired by the acts
under which the defendant holds? 1.
On the first point, is has been argued, that the word 'contract,' in its broadest
sense, would comprehend the political 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 ordinary legislation; which deeply concern the public, and
which, to preserve good government, the public judgment must control. That even
marriage is a contract, and its obligations are affected by the laws respecting
divorces. That the clause in the constitution, if construed in its greatest latitude,
*628 would prohibit these laws. Taken in its broad, unlimited sense, the clause
would be an unprofitable and vexatious interference with the internal concerns
of a state, would unnecessarily and unwisely embarrass its legislation, and render
immutable those civil institutions, which are established for purposes of internal
government, and which, to 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 which had been extensively
felt; and to restrain the legislature in future 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 states, which weakened the confidence
of man in man, and embarrassed all transactions between individuals, by dispensing
with a faithful performance of engagements. To correct this mischief, by restraining
the power which produced it, the state legislatures 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
limitation, it may be confined, and ought to be confined, to cases of this
*629 description; to cases within the mischief it was intended to remedy.
FN17
See Newton v. Commissioners, 100 U. S. 557. 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 instrument
they have given us, is not to be so construed, may be 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 never has been understood to restrict
the general right of the legislature to legislate on the subject of divorces.
[FN18] Those acts enable some tribunals, not to impair a marriage contract, but
to liberate one of the parties, because it has been broken by the other. When
any state legislature shall pass an act annulling all marriage contracts, or allowing
either party to annul it, without the consent of the other, it will be time enough
to inquire, whether such an act be constitutional.
FN18
Starr v. Hamilton, 1 Deady 268. The
parties in this case differ less on general principles, less on the true construction
of the constitution in the abstract, 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 administration of the government, or if the funds of the college be *630
public property, or if the state of New Hampshire, as a government, be alone interested
in its transactions, the subject is one in 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 for
ever, may not assert all the rights which they possessed, while in being; whether,
if they be without personal 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 *631 seriously to examine this
charter, and to ascertain its true character. From
the instrument itself, it appears, that about the year 1754, the Rev. Eleazer
Wheelock established, at his own expense, and on his own estate, a charity school
for the instruction 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 his undertaking. In this pious work, he employed
the Rev. Nathaniel Whitaker, 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 confirmed 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 favorable for carrying on the original design among
the Indians, and also for promoting learning among the English; and the proprietors
in the neighborhood 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 youth, and any others,' the charter was
granted, and the trustees of Dartmouth College were, by that name, created a body
*632 corporate, with power, for the use of the said college, to acquire real
and personal property, and to pay the president, 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 office, 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 appointment shall be made. The trustees have power to appoint and displace
professors, tutors and other officers, and to supply any vacancies which may be
created in their own body, by death, resignation, removal or disability; and also
to make orders, ordinances and laws for the government of the college, the same
not being repugnant to the laws of Great Britain, or of New Hampshire, and not
excluding any person 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 consisted entirely of private donations. It is,
perhaps, not very important, who were the donors. The probability is, that the
Earl of Dartmouth, and the other trustees in England, were, in fact, the largest
*633 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 expense. 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 received the money, were appointed
by, and act 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 purposes 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 founder of the college,
and its president for life. Were the inquiry material, we should feel some hesitation
in saying, that Dr. Wheelock was not, in law, to be considered as the founder
(1 Bl. Com. 481) of this institution, and as possessing all the rights appertaining
to that character. But be this as it may, Dartmouth 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 promotion 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 *634 is then an eleemosynary
(1 Bl. Com. 471), and so far as respects its funds, a private corporation. Do
its objects stamp on it a different character? Are the trustees and professors
public officers, invested with any portion of political power, partaking in any
degree in the administration 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 control, the officers
of which would be public officers, amenable exclusively to government, none will
deny. But is Dartmouth College such an institution? Is education altogether in
the hands of government? Does every teacher of youth become a public officer,
and do donations for the purpose of education necessarily become public property,
so far that the will of the legislature, not the will of the donor, becomes the
law of the donation? These questions are of serious moment to society, and deserve
to be well considered. Doctor
Wheelock, as the keeper of his charity-school, instructing the Indians in the
art of reading, and in our holy religion; sustaining them at his own expense,
and on the voluntary contributions of the charitable, could scarcely be considered
as a public officer, exercising any portion of those duties which belong to government;
nor could the legislature have *635 supposed, that his private funds, or
those given by others, were subject to legislative management, because they were
applied to the purposes of education. When, afterwards, his school was enlarged,
and the liberal contributions made in England, and in America, enabled him to
extend his care to the education of the youth of his own country, no change was
wrought in his own character, or in the nature of his duties. Had he employed
assistant-tutors with the funds contributed by others, or had the trustees in
England 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 employed in the education of youth, could not have converted
them into public officers, concerned in the administration of public duties, or
have given the legislature a right to interfere 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, uncontrolled by legislative authority. Whence,
then, can be derived the idea, that Dartmouth College has become a public institution,
and its trustees public officers, exercising powers conferred by the public for
public 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 receiving it do not, by being
employed in the education of youth, become members of the civil government. Is
it from *636 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 its creation confers upon it, either expressly,
or as incidental to its very existence. These are such as 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; properties, 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 hazardous and endless necessity, of perpetual
conveyances for the purpose of transmitting it from hand to hand. It is chiefly
for the purpose of clothing bodies of men, in succession, with these qualities
and capacities, that corporations were invented, and are in use. By these means,
a perpetual succession of individuals 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 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 a natural
person. It is no more a state instrument, than a natural person exercising the
same powers would be. If, then, a natural person, employed *637 by individuals
in the education of youth, or for the government of a seminary in which youth
is educated, would not become a public 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 purposes,
should become a part of the civil government of the country? Is it because its
existence, its capacities, its powers, 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 vary the purposes to which the property is to be applied?
This principle has never been asserted or recognised, and is supported by no authority.
Can it derive aid from reason? The
objects for which a corporation is created are universally such as the government
wishes to promote. They are deemed beneficial to the country; and this benefit
constitutes the consideration, and in most cases, the sole consideration of the
grant. In most eleemosynary institutions, the object would be difficult, perhaps
unattainable, without the aid of a charter of incorporation. Charitable or public-spirited
individuals, desirous of making permanent appropriations for charitable or other
useful purposes, find it impossible to effect their design securely and certainly,
without an incorporating act. They apply to the government, state their beneficent
object, and offer to advance the money necessary for its accomplishment, *638
provided the government will confer on the instrument which is to execute their
designs the capacity to execute them. The proposition is considered and approved.
The benefit to the public is considered as an ample compensation for the faculty
it confers, and the corporation is created. If the advantages to the public constitute
a full compensation for the faculty it gives, there can be no reason for exacting
a further compensation, 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 created. 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 stipulations. 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 manner in which they are formed,
and the objects for which they are created. The right to change them is not founded
on their being incorporated, but on their being the instruments of government,
created for its purposes. The same institutions, created for the same objects,
though not incorporated, would be public institutions, and, of course, be controllable
by the legislature. The incorporating act neither gives nor prevents this control.
Neither, in reason, can the incorporating act *639 change the character
of a private eleemosynary institution. We
are next led to the inquiry, 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 taken, and the application for an act of incorporation,
proceeds thus: '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 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 labors of the professors? Or do they merely indicate a willingness
that New Hampshire should enjoy those advantages which result to all from the
establishment of a seminary of learning in the neighborhood? On this point, we
think it impossible to entertain a serious doubt. The words themselves, unexplained
by the context, indicate, that the 'benefit intended for the province' is that
which is derived from 'establishing the best means of education therein;' that
is, from establishing in the province, Dartmouth College, as constituted by the
charter. But, if these words, considered alone, could admit of doubt, that
*640 doubt is completely removed, by an inspection of the entire instrument. The
particular interests of New Hampshire never entered into the mind of the donors,
never constituted a motive for their donation. The propagation of the Christian
religion among the savages, and the dissemination of useful knowledge among the
youth of the country, were the avowed 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
location of the college, are, perhaps, not less considerable to those on the west,
than to those on the east side of Connecticut 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 generally, not
the interests of New Hampshire particularly. From
this review of the charter, it appears, that Dartmouth 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 governors *641 were originally named by the founder, and invested with
the power of perpetuating themselves; that they are not public officers, nor is
it a civil institution, participating in the administration of government; but
a charity-school, or a seminary of education, incorporated 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 difficulty, on which more doubt
has been entertained, than on all that have been discussed. The founders of the
college, at least, those whose contributions were in money, have parted with the
property bestowed upon it, and their representatives 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 fluctuating, 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 constitution intended to withdraw from the
power of state legislation? Contracts, the parties to which have a vested beneficial
interest, and those only, it has been said, are the objects about *642
which the constitution is solicitous, and to which its protection is extended. The
court has bestowed on this argument the most deliberate consideration, and the
result will be stated. Dr. Wheelock, acting for himself, and for those who, at
his solicitation, had made contributions to his school, applied for this charter,
as the instrument which should enable him, and them, to perpetuate their beneficent
intention. It was granted. An artificial, immortal being, was created by the crown,
capable of receiving and distributing for ever, according to the will of the donors,
the donations which should be made to it. On this being, the contributions which
had been collected 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 money with which it was purchased. The consideration for 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 derive learning from this source; the corporation is a trustee for
them also. Their potential rights, which, taken distributively, *643 are
imperceptible, amount collectively to a most important interest. These are, in
the aggregate, to be exercised, 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 to public opinion, which that government
has chosen to avoid; but its power is not questioned. Had parliament, immediately
after the emanation of this charter, and the execution of those conveyances which
followed it, annulled 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 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
rights of all were combined, possessed no private, individual, beneficial interests
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 inviolability? Circumstances have not changed it. In reason, in justice, and
in law, it is now, what is was in 1769. This
is plainly a contract to which the donors, the trustees and the crown (to whose
rights and obligations New Hampshire succeeds) were the original *644 parties.
It is a contract made on a valuable consideration. It is a contract for the security
and disposition of property. It is a contract, on the faith of which, real and
personal estate 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 trustees, for the promotion
of religion and education, 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 framers of the constitution, when the clause
under consideration was introduced into that instrument. It is probable, that
interferences of more frequent occurrence, to which the temptation was stronger,
and of which the mischief was more extensive, constituted the great motive for
imposing this restriction on the state legislatures. But although a particular
and a rare case may not, in itself, be of sufficient magnitude to induce a rule,
yet it must be governed by the rule, when established, unless some plain and strong
reason for excluding 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 further, 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
*645 case being within the words of the rule, must be within its operation
likewise, unless there be something in the literal construction, so obviously
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 exception stand? There is no expression
in the constitution, no sentiment delivered by its contemporaneous expounders,
which would justify us in making it. In the absence 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 description of a character to excite so little interest, that we must
exclude them from the provisions of the constitution, as being unworthy of the
attention of those who framed the instrument? Or does public 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 introduced to give stability
to contracts, and which in their plain import comprehend this contract, must yet
be so construed as to exclude it? Almost
all eleemosynary corporations, those which are created for the promotion of religion,
of charity or of education, are of the same character. The law of this case is
the law of all. In every literary or charitable institution, unless the objects
of the bounty be themselves incorporated, the whole legal interest is in trustees,
and can be asserted only by them. The donors, or claimants of the bounty, if
*646 they can appear in court at all, can appear only to complain of the trustees.
In all other situations, they are identified with, and personated by, the trustees;
and their rights are to be defended and maintained by them. Religion, charity
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 defend
by the corporation. Are they of so little estimation 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
alteration? All
feel, that these objects are not deemed unimportant in the United States. The
interest which this case has excited, proves that they are not. The framers of
the constitution did not deem them unworthy of its care and protection. They have,
though in a different mode, manifested their respect 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 discoveries.' They have, so far, withdrawn
science, and the useful arts, from the action of the state governments. Why then
should they be supposed so regardless of contracts made for the advancement of
literature, as to intend to exclude them from provisions, made for the security
*647 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 protection 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 instrument, 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 discountenance. It
requires no very critical examination of the human mind, to enable us to determine,
that one great inducement to these gifts is the conviction felt by the giver,
that the disposition he makes of them is immutable. It is probable, 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 incorporation constitutes no security for the institution;
believing, that it is immediately to be deemed a public 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 for ever in the channel which the givers 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 *648 strangers to it, and that, feeling
the necessity and policy of giving permanence and security to contracts, of withdrawing
them from the influence of legislative bodies, whose fluctuating policy, and repeated
interferences, produced the most perplexing and injurious embarrassments, they
still deemed it necessary to leave these contracts subject to those interferences.
The motives for such an exception must be very powerful, to justify the construction
which makes it. 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 for ever, what they originally were. Hence is inferred the necessity
of applying to this corporation, and to other similar corporations, the correcting
and improving hand of the legislature. It has been urged repeatedly, and certainly
with a degree of earnestness which attracted attention, that the trustees, deriving
their power from a regal source, must, necessarily, partake of the spirit of their
origin; and that their first principles, unimproved by that resplendent light
which has been shed around them, must continue to govern the college, and to guide
the students. Before
we inquire 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 *649 selected? The charter informs us.
Dr. Wheelock had represented, 'that for many weightly reasons, it would be expedients,
that the gentlemen whom he had already nominated, in his last will, to be trustees
in America, should be of the corporation now proposed.' 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 doctor himself. If any
others were appointed, at the instance of the crown, they are the governor, three
members of the council, and the speaker of 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 dependence 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 his object,
and the success which attended his endeavors, would lead to the opinion, that
he united a sound understanding to that humanity *650 benevolence which
suggested his undertaking. 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. Reasoning a priori, we should believe, that learned and
intelligent 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, public opinion, as
has been stated at the bar, would correct the institution. The mere possibility
of the contrary 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 impaired, without violating the constitution
of the United States. This opinion appears to us to be equally supported by reason,
and by the former decisions of this court. 2.
We next proceed to the inquiry, whether its obligation has been impaired by those
acts of the legislature of New Hampshire, to which the special verdict refers? *651
From the review of this charter, which has been taken, it appears that the whole
power of governing the college, of appointing and removing tutors, of fixing their
salaries, of directing 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.
On the part of the crown, it was expressly stipulated, that this corporation,
thus constituted, should continue for ever; and that the number of trustees should
for ever consist of twelve, and no more. By this contract, the crown was bound,
and could have made no violent 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 Hampshire. It is admitted, that among the latter was comprehended
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 obligations, then,
which were created by the charter to Dartmouth 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 United States, would have been an extraordinary and unprecedented
act of power, but one which could have been contested 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, *652 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 Dartmouth College,' 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, to consist of twenty- five persons, of whom
twenty-one are also appointed by the executive of New Hampshire, who have power
to inspect and control the most important acts of the trustees. On
the effect of this law, two opinions cannot be entertained. Between acting directly,
and acting through the 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 control of the government of the state. The will of the state is
substituted for the will of the donors, in every essential operation of the college.
This is not an immaterial change. The founders of the college contracted, 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. *653 They contracted for a system,
which should, so far as human foresight can provide, retain for ever the government
of the literary institution they had formed, in the hands of persons approved
by themselves. This system is totally changed. The charter of 1769 exists no longer.
It is re-organized; and re-organized in such a manner, as to convert a literary
institution, moulded according to the will of its founders, and placed under the
control of private literary men, into a machine 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
is not clear, that the trustees ought to be considered as destitute of such beneficial
interest in themselves, as the law may respect. In addition to their being the
legal owners of the property, 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 *654 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. Even 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 beneficial 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 corporate, 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 verdict
ought to have been for the plaintiffs. The judgment of the state court must, therefore,
be reversed.
WASHINGTON, Justice. 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 contended by the counsel for the
plaintiffs *655 in error, are void, being repugnant to the constitution
of that state, and also to the constitution of the United States. Whether the
first objection 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 validity 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 authority 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 favor of their validity;
or where is drawn in question the construction of any clause of the constitution,
or of a treaty, or statute of, or commission held under, the United States, and
the decision is against the title, right, privilege or exemption specially set
up or claimed by either party, under such clause of the said 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 transcript 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 the obligation of
contracts.' The decision 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, *656 impair the obligation
of a contract, and are, consequently, repugnant to the above clause of the constitution
of the United States, and void. There are, then, two questions for this court
to decide: 1st. Is the charter granted to Dartmouth College on the 13th of December
1769, to be considered as a contract? If it be, then, 2d. Do the laws in question
impair its obligation? 1.
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
reciprocally acquires a right to whatever is promised by the other. Powell on
Cont. 6. Under this definition, says Mr. Powell, it is obvious, that every feoffment,
gift, grant, agreement, promise, &c., 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, consent,
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 property 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 v. Peck,
6 Cranch 87, *657 in which it was laid down, that a contract is either
executory or executed; by the former, a party binds himself to do, or not to do,
a particular thing; the latter is one in which the object 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 United 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 constitution of the United
States, the next inquiry is, whether the creation of a corporation by charter,
be such a grant, as includes 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 (2 Bl. Com. 37) to be a franchise. It is, says he, 'a franchise
for a number of persons, to be incorporated and exist as a body politic, with
a power to maintain perpetual succession, and to do corporate acts, and each individual
of such corporation 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. *658 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 another corporate
body, because it would prejudice his prior grant. (2 Bl. Com. 37) It implies,
therefore, a contract not to re-assert the right to grant the franchise to another,
or to impair it. There is also an implied contract, that the founder of a private
charity, or his heirs, or other persons appointed by him for that purpose, shall
have the right to visit, and to govern the corporation, of which he is the acknowledged
founder and patron, and also, that in case of its dissolution, the reversionary
right of the founder to the property, with which he had endowed it, should be
preserved inviolate. The
rights acquired by the other contracting party are those of having perpetual succession,
of suing and being sued, of purchasing lands for the benefit of themselves and
their successors, and of having a common seal, and of making by-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 v. Pasmore, 3 T. R. 246, says, that the
grant of incorporation is a compact between the crown and a number of persons,
the latter of whom undertake, in consideration *659 of the privileges bestowed,
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 (2 Bl. Com. 484), may be forfeited through negligence,
or abuse of its franchises, in which case, the law judges, that the body politic
has broken the condition upon which it was incorporated, and thereupon the corporation
is void. It appears to me, upon the whole, that these principles and authorities
prove, incontrovertibly, that a charter of incorporation is a contract. 2.
The next question is, do the acts of the legislature of New Hampshire of the 27th
of June, and 18th and 26th of December 1816, impair this contract, within the
true intent 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 different kinds of lay aggregate corporations, in order to prevent
any implied decision by this court of any other case, than the one immediately
before it. We
are informed, by the case of Philips v. Bury, 1 Ld. Raym. 5; s. c. 2 T.
R. 346, which contains all the doctrine of corporations connected with this point,
that there are two kinds of corporations aggregate, viz., such as are for public
government, and such as are for private charity. The first are those for the government
of a town, city or the like; and being for public advantage, are *660 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 consequently, no particular visitor; there
are no patrons of these corporations. But private and particular corporations
for charity, founded and endowed by private persons, are subject to the private
government of those who erect them, and 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 the 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 necessary power of inspecting and regulating
it. The authorities are full, to prove, that a college is a private charity, as
well as an 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 constitution, may very well differ in matters which concern
their rights and privileges, and their existence and subjection to public control.
The one is the mere creature of public institution, created exclusively for the
public advantage, without other endowments than 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. *661 The validity and justice of its laws
and constitution are examinable by the courts having jurisdiction over them; and
they are subject to the general law of the land. It would seem reasonable, that
such a corporation may be controlled, and its constitution altered and amended
by the government, in such manner as the public interest may require. Such legislative
interferences cannot be said to impair the contract by which the corporation was
formed, because there is, in reality, but one party to it, the trustees or governors
of the corporation being merely the trustees for the public, the cestui que
trust of the foundation. These trustees or governors 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
public benefit alone, and there would seem to be no reason, why the government,
under proper limitations, should not alter or modify such 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 control, laws and visitation, and not
to the general control of the government; and all these powers, rights and privileges
flow from the property of the founder in the funds assigned for the support of
the charity. Although the king, by the grant of the charter, 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 *662 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 franchise, or incorporeal hereditament, founded upon private property,
devoted by its patron to a private charity, of a peculiar kind, the offspring
of his own will and pleasure, to be managed and visited by persons of his own
appointment, according to such laws and regulations as he, or the persons so selected,
may ordain. It
has been shown, that the charter is a contract on the part of the government,
that the property with which the charity is endowed, shall be for ever vested
in a certain number of persons, and their successors, to subserve the particular
purposes designated by the founder, and to be managed 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 particular charity, to that of some other
charity, or to an entirely different charity, the grant is in effect set aside,
and a new contract substituted in its place; thus disappointing completely 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 contract, however
unimportant, even though it be manifestly for the interest of the party objecting
to it, impair its obligation? If the assent of all the parties to be bound by
a contract, be of its essence, how *663 is it possible, that a new contract,
substituted 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. Justice Blackstone lays it down (2 Bl. Com. 37), 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 v. Pasmore, 3 T. R. 246, Lord KENYON says, that an existing
corporation cannot have another charter obtruded upon it by the crown. It 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 essential, and therefore, it cannot be altered or added to without
such consent. But
the case of Terrett v. Taylor, 9 Cranch 43, fully supports the distinction
above stated, between civil and private corporations, 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 non-user, and may be resumed
by the government, under a judicial judgment of forfeiture. In respect to public
corporations, which exist only for public purposes, such as towns, cities, &c.,
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 *664
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 repugnant both to the spirit and the letter
of the constitution of the United States. If
these principles, before laid down, be correct, it cannot be denied, that the
obligations of, the charter to Dartmouth College are impaired by the laws under
consideration. The name of the corporation, its constitution and government, and
the objects of the founder, and of the grantor 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 different and new uses,
not contemplated by the founder. In short, it is most obvious, that the effect
of these laws is to abolish the old corporation, and to create a new one in its
stead. The laws of Virginia, referred to in the case of Terrett v. 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 *665
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 principle, if the law had appropriated the
funds of the college to the making of turnpike roads, or to any other purpose
of a public nature? In all respects, in which the contract has been altered, without
the assent of the corporation, its obligations 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 Dartmouth College was a mere
civil corporation, created for a public purpose, the public being deeply interested
in the education of its youth; and that, consequently, the charter was as much
under the control of the government of New Hampshire, as if the corporation had
concerned the government of a town or city. But it has been shown, 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 v. Bury, viz., that a college,
founded by an individual, or individuals, is a private charity, subject to the
government and visitation of the founder, and not to the unlimited control 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 the founder; and if the contributions made by the governor
of New Hampshire, by those persons who *666 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 alter the nature of the corporation, and convert
it into one for public government. It would still be a private eleemosynary 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 appointed 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 corporate body of Dartmouth College, are not binding on them,
and, consequently, that the judgment of the state court ought to be reserved. JOHNSON,
Justice, concurred, for the reasons stated by the Chief Justice. LIVINGSTON,
Justice, concurred, for the reasons stated by the Chief Justice, and Justices
WASHINGTON and STORY.
STORY, Justice. This
is a cause of great importance, and as the very learned discussions, as well here,
as in the state court, show, of no inconsiderable difficulty. There are two questions,
to which the appellate jurisdicdiction of this court properly applies. *667
1. Whether the original charter of Dartmouth College is a contract, within the
prohibitory clause of the constitution of the United States, which declares, that
no state shall pass any 'law impairing the obligation of contracts?' 2. If so,
whether the legislative acts of New Hampshire of the 27th of June, and of the
18th and 27th of December 1816, or any of them, impair the obligations of that
charter? It
will be necessary, however, before we proceed to discuss these questions, to institute
an inquiry into the nature, rights and duties of aggregate corporations, at common
law; that we may apply the principles, drawn from this source, to the exposition
of this charter, which was granted emphatically with reference to that law. An
aggregate corporation, at common law, is a collection of individuals, united into
one collective body, under a special name, and possessing certain immunities,
privileges and capacities, in its collective character, which do not belong to
the natural persons composing it. Among other things, it possesses the capacity
of perpetual succession, and of acting by the collected vote or will of its component
members, and of suing and being sued in all things touching its corporate rights
and duties. It is, in short, an artificial person, existing 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 considered 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 *668 may
contract with them in the same manner, as with any strangers. 1 Bl. Com. 469,
475; 1 Kyd on Corp. 13, 69, 189; 1 Wooddes. 471, &c. A great variety of these
corporations exist, in every country governed by the common law; in some of which,
the corporate 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 corporations are, from the particular purposes to which they
are devoted, denominated spiritual, and some lay; 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-alms and bounty
of the founder, in such manner as he has directed; and in this class, are ranked
hospitals for the relief of poor and impotent persons, and colleges for the promotion
of learning and piety, and the support of persons engaged in literary pursuits.
1 Bl. Com. 469, 470, 471, 482. 1 Kyd on Corp. 25; 1 Wooddes. 474; Attorney-General
v. Whorwood, 1 Ves. 534; St. John's College v. Todington,
1 W. Bl. 84; s. c. 1 Burr. 200; Philips v. Bury, 1 Ld. Raym. 5;
S. C. 2 T. R. 346; Porter's Case, 1 Co. 22 b, 23. Another
division of corporations is into public and private. Public corporations are generally
esteemed such as exist for public political purposes only, such as towns, cities,
parishes and counties; and in many respects, they are so, although they involve
some private interests; but strictly speaking, public corporations *669
are such only as are founded by the government, for public purposes, where the
whole interests belong also to the government. If, therefore, the foundation be
private, though under the charter of the government, the corporation is private,
however extensive the uses may be to which it is devoted, either by the bounty
of the founder, or the nature and objects of the institution. For instance, a
bank created by the government for its own uses, whose stock is exclusively owned
by the government, is, in the strictest sense, public corporation. So, an hospital
created and endowed by the government for general charity. But a bank, whose stock
is owned by private persons, is a private corporation, although it is erected
by the government, and its objects and operations partake of a public nature.
The same doctrine may be affirmed of insurance, canal, bridge and turnpike companies.
In all these cases, the uses may, in a certain sense, be called public, but the
corporations are private; as much so, indeed, as if the franchises were vested
in a single person. This
reasoning applies in its full force to eleemosynary corporations. An hospital,
founded by a private benefactor, is, in point of law, a private corporation, although
dedicated by its charter to general charity. So, a college, founded and endowed
in the same manner, although, being for the promotion of learning and piety, it
may extend its charity to scholars from every class in the community, and thus
acquire the character of a public institution. This
is the unequivocal doctrine of the authorities; and cannot be *670 shaken
but by undermining the most solid foundations of the common law. Philips
v. Bury, 1 Ld. Raym. 5, 9; s. c. 2 T. R. 346. It
was, indeed, supposed at the argument, that if the uses of an eleemosynary corporation
be for general charity, this alone would constitute it a public corporation. But
the law is certainly not so. To be sure, in a certain sense, every charity, which
is extensive in its reach, may be called a public charity, in contradistinction
to a charity embracing but a few definite objects. In this sense, the language
was unquestionably used by Lord HARDWICKE in the case cited at the argument;
Attorney-General v. Pearce, 2 Atk. 87; 1 Bac. Abr. tit. Charitable
Uses, E, 589; and in this sense, a private corporation may well enough be denominated
a public charity. So it would be, if the endowment, instead of being vested in
a corporation, were assigned to a private trustee; yet, in such a case, no one
would imagine, that the trust ceased to be private, or the funds became public
property. That the mere act of incorporation will not change the charity from
a private to a public one, is most distinctly asserted in the authorities. Lord
HARDWICKE, in the case already alluded to, says, 'the charter of the crown cannot
make a charity more or less public, but only more permanent than it would otherwise
be; but it is the extensiveness which will constitute it a public one. A devise
to the poor of the parish is a public charity. Where testators leave it to the
discretion of a trustee to choose out the objects, though each particular *671
object may be said to be private, yet in the extensiveness of the benefit accruing
from them, they may properly be called public charities. A sum to be disposed
of by A. B., and his executors, at their discretion, among poor house-keepers,
is of this kind.' The charity, then, may, in this sense, be public, although it
may be administered by private trustees; and for the same reason, it may thus
be public, though administered by a private corporation. The fact, then, that
the charity is public, affords no proof that the corporation is also public; and
consequently, the argument, so far as it is built on this foundation, falls to
the ground. If, indeed, the argument were correct, it would follow, that almost
every hospital and college would be a public corporation; a doctrine utterly irreconcilable
with the whole current of decisions since the time of Lord COKE. [FN19]
FN19
The case of Sutton Hospital, 10 Co. 23. When,
then, the argument assumes, that because the charity is public, the corporation
is public, it manifestly confounds the popular, with the strictly legal, sense
of the terms. And if it stopped here, it would not be very material to correct
the error. But it is on this foundation, that a superstructure is erected, which
is to compel a surrender of the cause. When the corporation is said, at the bar,
to be public, it is not merely meant, that the whole community may be the proper
objects of the bounty, but that the government have the sole right, as trustees
of the public interests, to regulate, control and direct the corporation, and
its funds and its franchises, at its own good will and pleasure. Now, such
*672 an authority does not exist in the government, except where the corporation,
is in the strictest sense, public; that is, where its whole interests and franchises
are the exclusive property and domain of the government itself. If it had been
otherwise, courts of law would have been spared many laborious adjudications in
respect to eleemosynary corporations, and the visitatorial powers over them, from
the time of Lord HOLT down to the present day. Rex v. Bury, 1 Ld. Raym.
5; s. c. Comb. 265; Holt 715; 1 Show. 360; 4 Mod. 106; Skin. 447, and Ld. HOLT's
opinion from his own MS., in 2 T. R. 346. Nay, more, private trustees for charitable
purposes would have been 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 control of law and equity, but to the arbitrary, discretion
of the government. Yet, who ever thought before, that the munificient gifts of
private 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 public policy, as we now find of law to sustain it. An
eleemosynary corporation, then, upon a private foundation, being a private corporation,
it is next to be considered, what is deemed a foundation, *673 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 William 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
eleemysonary 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 incipiens, 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 revenues is the foundation,
and he who gives them is, in the law, the founder; and it is in this last sense,
we generally call a man the founder of a college or hospital.' 1 Bl. Com. 480;
10 Co. 33. To
all eleemosynary corporations, a visitatorial power attaches, as a necessary incident;
for these corporations being 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 corporations,
and to compel the original purposes of the charity to be faithfully fulfilled.
1 Bl. Com. 480. The nature and extent of this visitatorial power has been expounded
*674 with admirable fulness and accuracy by Lord HOLT in one of his most celebrated
judgments. Phillips v. Bury, 1 Ld. Raym. 5; s. c. 2 T. R. 346. 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 person to whom it is assigned will, in that case, possess it in
exclusion of the founder's heirs. 1 Bl. Com. 482. 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 his 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 to assign or vest the visitatorial
power; it is sufficient 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 favor; and he may divide it among various persons, or subject
it to any modifications or control, by the fundamental statutes of the corporation.
But where the appointment is given in general terms, the whole power vests in
the appointee. Eden v. Foster, 2 P. Wms. 325; Attorney-General
v. Middleton, 2 Ves. 327; St. Johns College v. Todington,
1 W. Bl. 84.; s. c. 2 Burr. 200; Attorney-General v. Clare College,
3 Atk. 662; s. c. 1 Ves. 78. In the construction *675 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 governors are incorporated
to manage the charity, the visitatorial power is deemed to belong to them in their
corporate character. Philips v. Bury, 1 Ld. Raym. 5; s. c. 2 T.
R. 346; Green v. Rutherforth, 1 Ves. 472; Attorney-General
v. Middleton, 2 Ibid. 327; Case of Sutton Hospital, Co. 23, 31. When
a private eleemosynary corporation is thus created, by the charter of the crown,
it is subject to no other control on the part of the crown, than what is expressly
or implicitly 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 number of the trustees,
or remove any of the members, or change or control the administration of the charity,
or compel the corporation 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. [FN20] FN20
See Rex v. Pasmore, 3 T. R. 199, and the cases there cited. But
an eleemosynary, like every other corporation, is subject to the general law of
the land. It may forfeit its corporate franchises, by misuser or non-
user *676 of them. It is subject to the controling authority of its
legal visitor, who, unless 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 trustees 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 managers of the revenues of the corporation,
they are subject to the general superintending power of the court of chancery,
not as itself possessing a visitatorial power, or a right to control the charity,
but as possessing a general jurisdiction, in all cases of an abuse of trust, to
redress grievances and suppress frauds. 2 Fonbl. Eq., B. 2, pt. 2, ch. 1, § 1,
note a; Coop. Eq. Pl. 292; 2 Kyd on Corp. 195; Green v. Rutherforth,
1 Ves. 462; Attorney-General v. Foundling Hospital, 4 Bro. C. C.
165; s. c. 2 Ves. jr. 42; Eden v. Foster, 2 P. Wms. 325; 1 Wooddes.
476; Attorney-General v. Price, 3 Atk. 108; Attorney-General
v. Lock, 3 Ibid. 164; Attorney-General v. Dixie, 13 Ves.
519; Ex parte Kirby Ravensworth Hospital, 15 Ibid. 304, 314; Attorney-General
v. Earl of Clarendon, 17 Ibid. 491, 499; Berkhamstead Free School,
2 Ves. & B. 134; Attorney-General v. Corporation of Carmarthen,
Cooper 30; Mayor, &c., of Colchester v. Lowten, 1 Ves. &
B. 226; Rex v. Watson, 2 T. R. 199; Attorney- General v.
Utica Ins. Co., 2 Johns. Ch. 371; Attorney-General v. Middleton,
2 Ves. 327. And where a corporation is a mere trustee of a charity, a court of
equity will go yet further; and though it cannot appoint or remove a corporator,
it will, yet, in a case of *677 gross fraud, or abuse of trust, take away
the trust from the corporation, and vest it in other hands. Mayor, & c.,
of Coventry v. Attorney-General, 7 Bro. P. C. 235; Attorney-General
v. Earl of Clarendon, 17 Ves. 491, 499. Thus
much it has been thought proper to premise respecting the nature, rights, and
duties of eleemosynary corporations, growing out of the common law. We may now
proceed to an examination of the original charter of Dartmouth College. It
begins, by a recital, among other things, that the Rev. Eleazer Wheelock, of Lebanon,
in Connecticut, about the year 1754, at his own expense, on his own estate, set
on foot an Indian charity-school; and by the assistance of other persons, educated
a number of the children of the Indians, and employed them as missionaries and
school-masters among the savage tribes; that the design became reputable among
the Indians, so that more desired the education of their children at the school,
than the contributions in the American colonies would support; that the said Wheelock
thought it expedient to endeavor to procure contributions in England, and requested
the Rev. Nathaniel Whitaker to go to England, as his attorney, to solicit contribution,
and also solicited the Earl of Dartmouth and others, to receive the contributions
and become trustees thereof, which they cheerfully agreed to, and he constituted
them trustees accordingly, by a power of attorney, and they testified their acceptance
by a sealed instrument; that the said Wheelock
also authorized the trustees to fix and determine *678 upon the place for
the said school; and to enable them understandingly to give the preference, laid
before them, the several offers of the governments in America, inviting the settlement
of the school among them; that a large number of the proprietors of lands, in
the western parts of New Hampshire, to aid the design, and considering that the
same school might be enlarged and improved to promote learning among the English,
and to supply the churches there with an orthodox ministry, promised large tracts
of land for the uses aforesaid, provided the school should be settled in the western
part of said province; that the trustees, thereupon, gave a preference to the
western part of said province, lying on Connecticut river, as a situation most
convenient for said school: That the said Wheelock further represented the necessity
for a legal incorporation, in order to the safety and well-being of said seminary,
and its being capable of the tenure and disposal of lands and bequests for the
use of the same; that in the infancy of said institution, certain gentlemen whom
he had already nominated in his last will (which he had transmitted to the trustees
in England), to be trustees in America, should be the corporation now proposed;
and lastly, that there were already large contributions for said school in the
hands of the trustees in England, and further success might be expected; for which
reason, the said Wheelock desired they might be invested with all that power therein,
which could consist with their distance from the same. The charter, after these
recitals, declares, that the king, considering the premises, and being willing
to *679 encourage the charitable design, and that the best means of education
might be established in New Hampshire for the benefit thereof, does, of his special
grace, certain knowledge and mere motion, ordain and grant, that there be a college
erected in New Hampshire, by the name of Dartmouth College, for the education
and instruction of youth of the Indian tribes, and also of English youth and others;
that the trustees of said college shall be a corporation for ever, by the name
of the Trustees of Dartmouth College: that the then governor of New Hampshire,
the said Wheelock, and ten other persons, specially named in the charter, shall
be trustees of the said college, and that the whole number of trustees shall for
ever thereafter consist of twelve, and no more; that the said corporation shall
have power to sue and to be sued by their corporate name, and to acquire and hold
for the use of the said Dartmouth College, lands, tenements, hereditaments and
franchises; to receive, purchase and build any houses for the use of said college,
in such town in the western part of New Hampshire, as the trustees, or a major
part of them, shall, by a written instrument, agree on; and to receive, accept
and dispose of any lands, goods, chattels, rents, gifts, legacies, &c., not
exceeding the yearly value of 6000l. It further declares, that the trustees,
or a major part of them, regularly convened (for which purpose seven shall form
a quorum), shall have authority to appoint and remove the professors, tutors and
other officers of the college, and to pay them, and also such missionaries and
school-masters as shall be employed by the trustees for instructing the Indians,
salaries and *680 allowances, as well as other corporate expenses, out
of the corporate funds. It further declares, that, the said trustees, as often
as one or more of the trustees shall die, or by removal or otherwise, shall, according
to their judgment, become unfit or incapable to serve the interests of the college,
shall have power to elect and appoint other trustees in their stead, so that when
the whole number shall be complete of twelve trustees, eight shall be resident
freeholders of New Hampshire, and seven of the whole number, laymen. It further
declares, that the trustees shall have power, from time to time, to make and establish
rules, ordinances and laws, for the government of the college, not repugnant to
the laws of the land, and to confer collegiate degrees. It further appoints the
said Wheelock, whom it denominates 'the founder of the college,' to be
president of the college, with authority to appoint his successor, who shall be
president, until disapproved of by the trustees. It then concludes with a direction,
that it shall be the duty of the president to transmit to the trustees in England,
so long as they should perpetuate their board, and as there should be Indian natives
remaining to be proper objects of the bounty, an annual account of all the disbursements
from the donations in England, and of the general plans and prosperity of the
institution. Such
are the most material clauses of the charter. It is observable, in the first place,
that no endowment whatever is given by the crown; and no power is reserved to
the crown or government in any manner to alter, amend or control the charter.
It is also apparent, *681 from the very terms of the charter, that Dr.
Wheelock is recognised as the founder of the college, and that the charter is
granted upon his application, and that the trustees were in fact nominated by
him. In the next place, it is apparent, that the objects of the institution are
purely charitable, for the distribution of the private contributions of private
benefactors. The charity was, in the sense already explained, a public charity,
that is, for the general promotion of learning and piety; but in this respect,
it was just as much public before, as after the incorporation. The only effect
of the charter was to give permanency to the design, by enlarging the sphere of
its action, and granting a perpetuity of corporate powers and franchises, the
better to secure the administration of the benevolent donations. As founder, too,
Dr. Wheelock and his heirs would have been completely clothed with the visitatorial
power: but the whole government and control, as well of the officers as of the
revenues of the college, being with his consent assigned to the trustees in then
corporate character, the visitatorial power, which is included in this authority,
rightfully devolved on the trustees. As managers of the property and revenues
of the corporation, they were amenable to the jurisdiction of the judicial tribunals
of the state; but as visitors, their discretion was limited only by the charter,
and liable to no supervision or control, at least, unless it was fraudulently
misapplied. From
this summary examination it follows, that Dartmouth College was, under its original
charter, a private eleemosynary corporation, endowed with *682 the usual
privileges and franchises of such corporations, and among others, with a legal
perpetuity, and was exclusively under the government and control of twelve trustees,
who were to be elected and appointed, from time to time, by the existing board,
as vacancies or removals should occur. We
are now led to the consideration of the first question in the cause, whether this
charter is a contract, within the clause of the constitution prohibiting the states
from passing any law impairing the obligation of contracts. In the case of
Fletcher v. Peck, 6 Cranch 87, 136, this court laid down its exposition
of the word 'contract' in this clause, in the following manner: 'A contract is
a compact between two or more persons, and is either executory or executed. An
executory contract is one, in which a party binds himself to do, or not to do,
a particular thing. A contract executed is one in which the object of the contract
is performed; and this, says Blackstone, differs in nothing from a grant. A contract
executed, as well as one that 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 re-assert that right. A party is
always estopped by his own grant.' This language is perfectly unambiguous, and
was used in reference to a grant of land by the governor of a state, under a legislative
act. It determines, in the most unequivocal manner, that the grant of a state
is a contract, within the clause of *683 the constitution now in question,
and that it implies a contract not to re-assume the rights granted; a fortiori,
the doctrine applies to a charter or grant from the king. But
it is objected, that the charter of Dartmouth College is not a contract contemplated
by the constitution, because no valuable consideration passed to the king, as
an equivalent for the grant, it purporting to be granted ex mcro motu,
and further, that no contracts, merely voluntary, are within the prohibitory clause.
It must be admitted, that mere executory contracts cannot be enforced at law,
unless there be a valuable consideration to sustain them; and the constitution
certainly did not mean to create any new obligations, or give any new efficacy
to nude pacts. But it must, on the other hand, be also admitted, that the constitution
did intend to preserve all the obligatory force of contracts, which they have
by the general principles of law. Now, when a contract has once passed, bona
fide, into grant, neither the king, nor any private person, who may be the
grantor, can recall the grant of the property, although the conveyance may have
been purely voluntary. A gift, completely executed, is irrevocable. The property
conveyed by it becomes, as against the donor, the absolute property of the donee;
and no subsequent change of intention of the donor can change the rights of the
donee. 2 Bl. Com. 441; Jenk. Cent. 104. And a gift by the crown of incorporeal
hereditaments, such as corporate franchises, when executed, comes completely
*684 within the principle, and is, in the strictest sense of the terms, a
grant. 2 Bl. Com. 317, 346; Shep. Touch. ch. 12, p. 227. Was it ever imagined,
that land, voluntarily granted to any person by a state, was liable to be resumed,
at its own good pleasure? Such a pretension would, under any circumstances, be
truly alarming; but in a country like ours, where thousands of land-titles had
their origin in gratuitous grants of the states, it would go far to shake the
foundations of the best settled estates. And a grant of franchises is not, in
point of principle, distinguishable from a grant of any other property. If, therefore,
this charter were a pure donation, when the grant was complete, and accepted by
the grantees, it involved a contract, that the grantees should hold, and the grantor
should not re-assume the grant, as much as if it had been founded on the most
valuable consideration. But
it is not admitted, that this charter was not granted for what the law deems a
valuable consideration. For this purpose, it matters not how trifling the consideration
may be; a pepper-corn is as good as a thousand dollars. Nor is it necessary, that
the consideration should be a benefit to the grantor. It is sufficient, if it
import damage or loss, or forbearance of benefit, or any act done or to be done,
on the part of the grantee. It is unnecessary to state cases; they are familiar
to the mind of every lawyer. Pillans v. Van Mierop, per Yates, J.,
3 Burr. 1663; Forth v. Stanton, 1 Saund. 211, Williams' note 2,
and the cases there cited. With
these principles in view, let us now examine *685 the terms of this charter.
It purports, indeed, on its face, to be granted 'of the special grace, certain
knowledge and mere motion' of the king; but these words were introduced
for a very different purpose from that now contended for. It is a general rule
of the common law (the reverse of that applied in ordinary cases), that a grant
of the king, at the suit of the grantee, is to be construed most beneficially
for the king, and most strictly against the grantee. Wherefore, it is usual to
insert in the king's grants, a clause, that they are made, not at the suit of
the grantee, but of the special grace, certain knowledge and mere motion of the
king; and then they receive a more liberal construction. This is the true object
of the clause in question, as we are informed by the most accurate authorities.
2 Bl. Com. 347; Finch's Law 100; 10 Rep. 112; 1 Shep. Abr. 136; Bull. N. P. 136.
But the charter also, on its face, purports to be granted, in consideration of
the premises in the introductory recitals. Now,
among these recitals, it appears, that Dr. Wheelock had founded a charity-school
at his own expense, on his own estate; that divers contributions had been made
in the colonies, by others, for its support; that new contributions had been made,
and were making, in England, for this purpose, and were in the hands of trustees
appointed by Dr. Wheelock to act in his behalf; that Dr. Wheelock had consented
to have the school established at such other place as the trustees should select;
that offers had been made by several of the governments in America, inviting the
*686 establishment of the school among them; that offers of land had also
been made by divers proprietors of lands in the western parts of New Hampshire,
if the school should be established there; that the trustees had finally consented
to establish it in New Hampshire; and that Dr. Wheelock represented that, to effectuate
the purposes of all parties, an incorporation was necessary. Can it be truly said,
that these recitals contain no legal consideration of benefit to the crown, or
of forbearance of benefit on the other side? Is there not an implied contract
by Dr. Wheelock, if a charter is granted, that the school shall be removed from
his estate to New Hampshire? and that he will relinquish all his control over
the funds collected, and to be collected, in England, under his auspices, and
subject to his authority? that he will yield up the management of his charity-
school to the trustees of the college? that he will relinquish all the offers
made by other American governments, and devote his patronage to this institution?
It will scarcely be denied, that he gave up the right any longer to maintain the
charity-school already established on his own estate; and that the funds collected
for its use, and subject to his management, were yielded up by him, as an endowment
of the college. The very language of the charter supposes him to be the legal
owner of the funds of the charity-school, and in virtue of this endowment, declares
him the founder of the college. It matters not, whether the funds were great or
small; Dr. Wheelock had procured them, by his own influence, and they were under
his control, to be applied to the *687 support of his charity-school; and
when he relinquished this control, he relinquished a right founded in property
acquired by his labors. Besides, Dr. Wheelock impliedly agreed to devote his future
services to the college, when erected, by becoming president thereof, at a period
when sacrifices must necessarily be made to accomplish the great design in view.
If, indeed, a pepper-corn be, in the eye of the law, of sufficient value to found
a contract, as upon a valuable consideration, are these implied agreements, and
these relinquishments of right and benefit, to be deemed wholly worthless? It
has never been doubted, that an agreement not to exercise a trade in a particular
place was a sufficient consideration to sustain a contract for the payment of
money; a fortiori, the relinquishment of property which a person holds,
or controls the use of, as a trust, is a sufficient consideration; for it is parting
with a legal right. Even a right of patronage (jus patronatus) is of great
value in intendment of law. Nobody doubts, that an advowson is a valuable hereditament;
and yet, in fact, it is but a mere trust, or right of nomination to a benefice,
which cannot be legally sold to the intended incumbent. 2 Bl. Com. 22, Christian's
note. In respect to Dr. Wheelock, then, if a consideration be necessary to support
the charter as a contract, it is to be found in the implied stipulations on his
part in the charter itself. He relinquished valuable rights, and undertook a laborious
office, in consideration of the grant of the incorporation. *688
This is not all. A charter may be granted upon an executory, as well as an executed
or present consideration. When it is granted to persons who have not made application
for it, until their acceptance thereof, the grant is yet in fieri. Upon
the acceptance, there is an implied contract on the part of the grantees, in consideration
of the charter, that they will perform the duties, and exercise the authorities
conferred by it. This was the doctrine asserted by the late learned Mr. Justice
BULLER, in a modern case. Rex v. Pasmore, 3 T. R. 199, 239, 246.
He there said, 'I do not know how to reason on this point better than in the manner
urged by one of the relator's counsel, who considered the grant of incorporation
to be a compact between the crown, and a certain number of the subjects, the latter
of whom undertake, in consideration of the privileges which are bestowed, to exert
themselves for the good government of the place,' (i. e., the place incorporated).
It will not be pretended, that if a charter be granted for a bank, and the stockholders
pay in their own funds, the charter is to be deemed a grant, without consideration,
and therefore, revocable at the pleasure of the grantor. Yet, here, the funds
are to be managed, and the services performed exclusively for the use and benefit
of the stockholders themselves. And where the grantees are mere trustees to perform
services, without reward, exclusively for the benefit of others, for public charity,
can it be reasonably argued, that these services are less valuable to the government,
than if performed for the private emolument of *689 the trustees themselves?
In respect then to the trustees also, there was a valuable consideration for the
charter, the consideration of services agreed to be rendered by them, in execution
of a charity, from which they could receive no private remuneration. There
is yet another view of this part of the case, which deserves the most weighty
consideration. The corporation was expressly created for the purpose of distributing
in perpetuity the charitable donations of private benefactors. By the terms of
the charter, the trustees, and their successors, in their corporate capacity,
were to receive, hold and 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 perpetually devoted to their original purposes,
without any interference on its own part, and should be for ever administered
by the trustees of the corporation, unless its corporate 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 corporation itself, and every benefactor, *690 upon a like consideration,
that it would administer his bounty according to the terms, and for the objects
stipulated in the charter. In
every view of the case, if a consideration were necessary (which I utterly deny)
to make the charter a valid contract, a valuable consideration did exist, as to
the founder, the trustees, and the benefactors. And upon the soundest legal principles,
the charter may be properly deemed, according to the various aspects in which
it is viewed, as a several contract with each of these parties, in virtue of the
foundation, 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 remaining another view of the subject, which
cannot consistently be passed over without notice. It seems to be assumed by the
argument of the defendant's counsel, that there is no contract whatsoever, in
virtue of the charter, between the crown and the corporation itself. But it deserves
consideration, whether this assumption can be sustained upon a solid foundation. If
this had been a new charter, granted to an existing corporation, 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 person
in rerum naturce, with whom it might be made. Is
this, however, a just and legal view of the *691 subject? If the corporation
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 operation of things in the same grant; and the law distinguishes
and gives such priority, wherever it is necessary to effectuate the objects of
the grant. Case of Sutton Hospital, 10 Co. 23; Buckland v. Fowcher,
cited, Ibid. 27-8, and recognised in Attorney-General v. Bowyer,
3 Ves. Jr. 714, 726-7; S. P. Highmore on Mort. 200, &c. From the nature of
things, the artificial person called a corporation, must be created, before it
can be capable of taking anything. When, therefore, a charter is granted, and
it brings the corporation into existence, without any act of the natural persons
who compose it, and gives such corporation any privileges, franchises or property,
the law deems the corporation to be first brought into existence, and then clothes
it with the granted liberties and property. When, on the other hand, the corporation
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
into 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. Ibid. 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 instrument, at a subsequent period? It
behooves those also, who hold, that a grant to a corporation, not then in existence,
is incapable *692 of being deemed a contract, on that account, to consider,
whether they do not, at the same time, establish, that the grant itself is a nullity,
for precisely the same reason. Yet such a doctrine would strike us all, as pregnant
with absurdity, since it would prove that an act of incorporation could never
confer any authorities, or rights or property on the corporation it created. It
may be 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 executed contract, upon the acceptance of the
estate? 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 the consideration for the charter, and after the corporation is organized,
a payment duly made of the sum, out of the corporate funds; will it be contended,
that there is not a subsisting contract between the government and the corporation,
by the matters thus arising ex post facto, that the charter shall not be
revoked, during the stipulated period? Suppose, an act declaring that all persons,
who should thereafter pay into the public treasury a stipulated sum, should be
tenants in common of certain *693 lands belonging to the state, in certain
proportions; if a person, afterwards born, pays the stipulated sum into the treasury,
is it less a contract with him, than it would be with a person in esse
at the time the act passed? We must admit, that there may be future springing
contracts, in respect to persons not now in esse, or we shall involve ourselves
in inextricable difficulties. And if there may be, in respect to natural persons,
why not also in respect to artificial persons, created by the law, for the very
purpose of being clothed with corporate powers? I am unable to distinguish between
the case of a grant of land or of franchises to an existing corporation, and a
like grant to a corporation brought into life for the very purpose of receiving
the grant. As soon as it is in esse, and the franchises and property become
vested and executed in it, the grant is just as much an executed contract, as
if its prior existence had been established for a century. Supposing,
however, that in either of the views which have been suggested, the charter of
Dartmouth College is to be deemed a contract, we are yet met with several objections
of another nature. It is, in the first place, contended, that it is not a contract,
within the prohibitory clause of the constitution, because that clause was never
intended to apply to mere contracts of civil institution, such as the contract
of marriage, or to grants of power to state officers, or to contracts relative
to their offices, or to grants of trust to be exercised for purposes merely public,
where the grantees take no beneficial interest. It
is admitted, that the state legislatures have *694 power to enlarge, repeal
and limit the authorities of public officers, in their official capacities, in
all cases, where the constitutions of the states respectively do not prohibit
them; and this, among others, for the very reason, that there is no express or
implied contract, that they shall always, during their continuance in office,
exercise such authorities; they are to exercise them only during the good pleasure
of the legislature. But when the legislature makes a contract with a public officer,
as in the case of a stipulated salary for his services, during a limited period,
this, during the limited period, is just as much a contract, within the purview
of the constitutional prohibition, as a like contract would be between two private
citizens. Will it be contended, that the legislature of a state can diminish the
salary of a judge, holding his office during good behavior? Such an authority
has never yet been asserted, to our knowledge. It may also be admitted, that corporations
for mere public government, such as towns, cities and counties, may in many respects
be subject to legislative control. But it will hardly be contended, that even
in respect to such corporations, the legislative power is so transcendent, that
it may at its will take away the private property of the corporation, or change
the uses of its private funds, acquired under the public faith. Can the legislature
confiscate to its own use the private funds which a municipal corporation holds
under its charter, without any default or consent of the corporators? If a municipal
corporation be capable of holding devises and legacies to charitable uses (as
may municipal corporations *695 are), does the legislature, under our forms
of limited government, possess the authority to seize upon those funds, and appropriate
them to other uses, at its own arbitrary pleasure, against the will of the donors
and donees? From the very nature of our governments, the public faith is pledged
the other way; and that pledge constitutes a valid compact; and that compact is
subject only to judicial inquiry, construction and abrogation. This court have
already had occasion, in other causes, to express their opinion on this subject;
and there is not the slightest inclination to retract it. Terrett v.
Taylor, 9 Cranch 43; Town of Pawlet v. Clark, Ibid. 292. As
to the case of the contract of marriage, which the argument supposes not to be
within the reach of the prohibitory clause, because it is matter of civil institution,
I profess not to feel the weight of the reason assigned for the exception. In
a legal sense, all contracts, recognised as valid in any country, may be properly
said to be matters of civil institution, since they obtain their obligation and
construction jure loci contractus. Titles to land, constituting part of
the public domain, acquired by grants under the provisions of existing laws by
private persons, are certainly contracts of civil institution. Yet no one ever
supposed, that when acquired bona fide, they were not beyond the reach
of legislative revocation. And so, certainly, is the established doctrine of this
court. Ibid. A general law, regulating divorces from the contract of marriage,
like a law regulating *696 remedies in other cases of breaches of contracts,
is not necessarily a law impairing the obligation of such a contract. [FN21] It
may be the only effectual mode of enforcing the obligations of the contract on
both sides. A law punishing a breach of a contract, by imposing a forfeiture of
the rights acquired under it, or dissolving it, because the mutual obligations
were no longer observed, is, in no correct sense, a law impairing the obligations
of the contract. Could a law, compelling a specific performance, by giving a new
remedy, be justly deemed an excess of legislative power? Thus far the contract
of marriage has been considered with reference to general laws regulating divorces
upon breaches of that contract. But if the argument means to assert, that the
legislative power to dissolve such a contract, without such a breach on either
side, against the wishes of the parties, and without any judicial inquiry to ascertain
a breach, I certainly am not prepared to admit such a power, or that its exercise
would not entrench 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 contract),
it is not easy to perceive, why a dissolution of its obligations, 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 marriage *697 contract.
FN21
See Holmes v. Lansing, 3 Johns. Cas. 73. He
has a legal right to her society and her fortune; and to divest such right, without
his default, and against his will, would be as flagrant a violation of the principles
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 insurmountable 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 special, private or public
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. 2 Bl.
Com. 21. The fallacy of the argument consists, in assuming the very ground in
controversy. It is not admitted, that a contract with a trustee is, in its own
nature, revocable, whether it be for special or general purposes, for public charity
or particular beneficence. A private donation, vested in a trustee, for objects
of a general nature, does not thereby become a public trust, which the government
may, at its pleasure, take from the trustee, and administer *698 in its
own way. The truth is, that the government has no power to revoke a grant, even
of its own funds, when given to a private person, or a corporation, for special
uses. It cannot recall its own endowments, granted to any hospital or college,
or city or town, for the use of such corporations. 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 are within the constitutional prohibition, except such as respect
property in the strict sense of the term; that is to say, beneficial interests
in lands, tenements and hereditaments, &c., which may be sold by the grantees,
for their own benefit: and that grants of franchises, immunities and authorities
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 no beneficial interest can accrue to the possessor.
A grant of the next presentation to a church, limited to the grantee alone, has
been already mentioned. A power of appointment, reserved in a marriage settlement,
either to a party or a stranger, to appoint uses in favor of third persons, without
compensation, is another instance. *699 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 and authority, coupled with a trust, and capable
of survivorship. Co. Litt. 113 a, Harg. & Butler's note 2; Sugden on
Powers 140; Jackson v. Jansen, 6 Johns. 73; Franklin v.
Osgood, 2 Johns. Cas. 1; S. C. 14 Johns. 527; Zebach v. Smith,
3 Binn. 69; Lessee of Moody v. Vandyke, 4 Ibid. 7, 31; Attorney-General
v. Gley, 1 Atk. 356; 1 Bac. Abr. 586 (Gwillim's edit.). Many dignities
and offices, existing at common law, are merely honorary, 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 franchises, whether corporate or not,
which include a pernancy of profits, such as a right of fishery, or to hold a
ferry, a market 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 exchangeable 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 disseisin 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.
*700 Nor is there any solid reason why a contract for the exercise of a mere
authority should not be just as much guarded, as a contract for the use and dominion
of property. Mere naked powers, which are to be exercised for the exclusive 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 the grantor. For it then sounds
in contract, and is coupled with an interest. Walsh v. Whitcomb,
2 Esp. 565; Bergen v. Bennett, 1 Caines' Cas. 1, 15; Raymond
v. Squire, 11 Johns. 47. So, if an estate be conveyed in trust for the
grantor, the estate is irrevocable in the grantee, although 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 doubt, that such grants are contracts 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 interest.
The property of the corporation rests upon the possession of its franchises; and
whatever may be thought, as to the corporators, it cannot be denied, that the
corporation itself has a legal interest in them. It may sue and be sued for them.
Nay, more, this very right is one of its ordinary *701 franchises. 'It
is likewise a franchise,' says Mr. Justice Blackstone, 'for a number of persons
to be incorporated and subsist as a body politic, 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 freedom.' 2 Bl. Com. 37; 1 Kyd on Corp. 14,
16. 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 beneficial 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 indeed of holding property or franchises, but having no interest
in them which can be the subject of contract. Neither of these positions is admissible.
The former has been already sufficiently considered, and the latter may be disposed
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 corporate
concerns, which the law recognises 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
public elections; it is as sacred a right; and whatever might have been the prevalence
of former doubts, since the time of Lord HOLT, such a right has always been deemed
a valuable franchise or privilege. Ashby v. White, 2 Ld. Raym.
938; 1 Kyd on Corp. 16. *702
This reasoning, which has been thus far urged, applies with full force to the
case of Dartmouth College. The franchises 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 manner. 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 charter itself declares, 'for
the use of Dartmouth College.' There were not, and in the nature of things, could
not be, any other cestui 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 establishments connected with it: and the mode in which
the charity was to be applied, and the objects of it, were left solely to the
trustees, who were the legal governors and 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 object. The legislature itself could not
deprive the trustees of the corporate funds, nor annul their discretion in the
application of them, nor distribute them among its own favorites. Could the legislature
of New Hampshire have seized 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 legislature may lawfully take the property of
A. and give it to B.; and if it *703 could not take away or restrain the
corporate 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,
belonging to the trustees, collectively and severally, which are deserving of
notice. They are intrusted with the exclusive 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 to 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 government. Rex v. St. Catherine's
Hall, 4 T. R. 233. 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; *704 each of them
also has a franchise in it. Lord HOLT says, 'it is agreeable to reason, and the
rules of law, that a franchise should be vested in the corporation aggregate,
and yet the benefit redound to the particular members, and be enjoyed by them
in their private capacities. Where the privilege of election is used by particular
persons, it is a particular right vested in each particular man.' Ashby
v. White, 2 Ld. Raym. 938, 952; Attorney-General v. Dixie,
13 Ves. 519. Each of the trustees 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 office, 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 corporation. The case cited at the bar certainly goes the
length of asserting, that in a suit brought against a charitable corporation,
for a recompence for services performed for the corporation, the governors, constituting
the corporation (but whether intrusted with its funds or not by the act of incorporation
does not appear), are competent witnesses against the plaintiff. Weller
v. Governor of the Foundling Hospital, 1 Peake's Cas. 153. But assuming
this case to have been rightly decided (as to which, upon the authorities, there
may be room to doubt), the corporators *705 being technically parties to
the record (Attorney-General v. City of London, 3 Bro. C. C. 171;
s. c. 1 Ves. jr. 243; Burton v. Hinde, 5 T. R. 174; Nason
v. Thatcher, 7 Mass. 398; Phillips on Evid. 42, 52, 57 and notes; 1 Kyd
on Corp. 304, &c.; Highmore on Mortm. 514), it does not establish, that in
a suit for the corporate property vested in the trustees in their corporate 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, or to
enforce their visitatorial power, the trustees would be competent witnesses. 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, or 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 show, 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 trustee is a disinterested witness. Such an obstruction
is not a damnum absque injurid. Each trustee has a vested right, and legal
interest, in his office, and it cannot be divested 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 rights *706 are in controversy, the trustees have no
legal interest in their offices. The
principal objections having been thus answered, satisfactorily, 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 1969, is a contract within
the purview of the constitutional prohibition. I
might now proceed to the discussion of the second question; 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 revolution,
and is, therefore, a mere nullity. A case before Lord THURLOW has been cited in
support of this doctrine. Attorney-General v. City of London, 3
Bro. C. C. 171; S. C. 1 Ves. jr. 243. The principal question in that case was,
whether the corporation of William & Mary 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 the will, but it acting as an agent or trustee, under a decree
in chancery, or whether a new scheme for the administration of the charity should
be laid before the court. Lord THURLOW directed a new scheme, because the college,
belonging to an independent 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 (1 Ves. jr. 243) states, *707 that
he could not take notice of it, as a corporation, it not having proved its existence,
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 recognised as well in this, as in other courts, that
the division of an empire works no forfeiture of previously-vested rights of property.
And this maxim is equally consonant with the common sense of mankind, and the
maxims of eternal justice. Terrett v. Taylor, 9 Cranch 43, 50;
Kelly v. Harrison, 5 Johns. Cas. 29; Jackson v. Lunn,
3 Ibid. 109; Calvin's Case, 7 Co. 27. This objection, therefore, may be
safely dismissed without further comment. The
remaining inquiry is, whether the acts of the legislature 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 a new 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 charter; or compel the old members to give up their own franchises, or to
admit new members into the corporation. Rex v. Vice-Chancellor of Cambridge,
3 Burr. 1656; Rex v. Pasmore, 3 T. R. 240; 1 Kyd on Corp. 65;
Rex v. Larwood, Comb. 316. Neither can the crown compel a man *708
to become a member of such corporation, against his will. Rex v. Dr.
Askew, 4 Burr. 2200. As little has it been supposed, that under our limited
governments, the legislature possessed such transcendent authority. On one occasion,
a very able court held, that the state legislature had no authority to compel
a person to become a member of a mere private corporation, created for the promotion
of a private enterprise, because every man had a right to refuse a grant. Ellis
v. Marshall, 2 Mass. 269. On another occasion, the same learned court declared,
that they were all satisfied, that the rights legally vested in a corporation
cannot be controlled or destroyed by any subsequent statute, unless a power for
that purpose be reserved to the legislature in the act of incorporation. Wales
v. Stetson, 2 Mass. 143, 146. These principles are so consonant with justice,
sound policy and legal reasoning, that it is difficult to resist the impression
of their perfect correctness. The application of them, however, does not, from
our limited authority, properly belong to the appellate jurisdiction of this court
in this case. A
very summary examination of the acts of New Hampshire will abundantly show, 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 twenty-one, a majority *709
of whom shall form a quorum; that they and their successors shall hold,
use, and enjoy for ever, all the powers, authorities, rights, property, liberties,
privileges and immunities, 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 places of their meetings, and manner of notifying the
same; to organize colleges in the university; to establish an institute, and elect
fellows and members thereof; to appoint and displace officers, and determine their
duties and compensation; to delegate the power of supplying vacancies in any of
the offices of the university for a limited term; to pass ordinances 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 oversers, 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 the governor and council.
The board of overseers are, among other things, to have power, 'to inspect and
confirm, or disapprove and negative, such votes and proceedings of the board of
trustees as shall relate to the appointment and removal of president, professors,
and other permanent officers of the university, and determine their salaries;
to the establishment of colleges and professorships, and the erection of new college
buildings.' The act then provides, that the president and professors shall be
nominated by the trustees, and appointed by the overseers, *710 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 power 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
control; 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 trustees, in their corporate
capacities. The quorum is no longer seven, 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 appointed by the governor
and council, and the new board are then to elect other trustees, from time to
time, as vacancies occur. The new board, too, have the power to suspend or remove
any member, so that a minority of the old board, co-operating with the new trustees,
possess the unlimited power to remove the majority of the old board. The powers,
too, of the corporation are varied. It has authority to organize new colleges
in *711 'the university, and to establish an institute, and elect fellows
and members thereof.' A board of overseers is created (a board utterly unknown
to the old charter), and is invested with a general supervision and negative upon
all the most important acts and proceedings of the trustees. And to give complete
effect to this new authority, instead of the right to appoint, 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 unconditional
repeal of the charter, could have that effect. If a grant of land or franchises
be made to A., in trust for special purposes, 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 property be vested by grant in
A. and B., for the use of a college, or an hospital, of private foundation, is
not the obligation of that grant impaired, when the estate is taken from their
exclusive management, and vested in them in common with ten other persons? If
a power of appointment be given to A. and B., is it no violation of their right,
to annul the appointment, unless it be assented to by five other persons, and
then confirmed by a distinct body? If a bank or insurance company, by the terms
of its charter, be under the management of directors, elected by the stockholders,
would not the *712 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 questions carry their own answers along
with them. The common 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 essential distinction, the same as the case now at the
bar. In
my judgment, it is perfectly clear, that any act of a legislature which takes
away any powers or franchises vested by its charter in a private corporation,
or its corporate officers, or which restrains or controls the legitimate exercise
of them, or transfers them to other persons, without its assent, is a violation
of the obligations of that charter. If the legislature mean to claim such an authority,
it must be reserved 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 perplexities
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 *713 jealousies and rivalries of conflicting
parties, with the most momentous interests confided to its care. Under such circumstances,
it never can have a motive to do more than its duty; and I trust, it will always
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
question. I entertain no less respect for the enlightened tribunal whose decision
we are called upon to review. In the examination, I have endeavored to keep my
steps super antiquas 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 judgment
of our country. DUVALL,
Justice, dissented. [FN22] FN22
In the discussions which arose in France, in 1786, upon the new charter then recently
granted to the French East India company, it seems to have been taken for granted,
by the lawyers on both sides, to whom the questions in controversy were submitted
by the company, and by the merchants who considered themselves injured by its
establishment, that if the charter had regularly issued according to the forms
of the French law, it was irrevocable, unless forfeited for non-user or
misuser. The advocates (MM. LACRETELLE and BLONDE) who were consulted by the
merchants of the kingdom opposed to the establishment of the company, denied its
legal existence, on the ground, that the king had been surprised in his grant;
that it was not yet perfected by the issuing of letters-patent, nor duly registered
by the parliaments; and that it both might and ought to be suppressed, as an illegal
grant of exclusive privileges, contrary to the true principles of commercial philosophy.
On the other hand, it was contended by the company, that their grant was irrevocable;
that it was but a renewal and confirmation of the charter of the old company,
which had been suspended in 1769, in consequence of the immense losses of capital
sustained in the calamitous war of 1756 (but which suspension was at the time
solemnly protested against by the parliament of Paris as illegal); that their
new grant might still be perfected by letters-patent, which the faith of the king
was pledged to issue; and that the privileges thus granted to them were irrevocably
vested, as a right of property, of which they could not be deprived by any authority
in the kingdom. 'En effet, quand le roi accorde un privilege exclusif, ce privilege
est le prix d'une mise de fonds, dans un commerce hazardeux, don't l'entreprize
est jugee avantageuse a l'etat. Dela nait par consequent un contrat synallagmatique,
qui se forme entre le souverain et les actionnaires. Dela nait un droit de propriete
qui devient inebranlable pour le souverain lui-meme.' And of this opinion
were the advocates (MM. HARDOIN, GERBIER and DE BONNIERES) consulted by the company.
See a Collection of Tracts on the French East India company, Paris, 1788, in the
Library of Congress. *714
Upon the suggestion of the plaintiff's counsel, that the defendant had died since
the last term, the court ordered the judgment to be entered nunc pro tunc
as of that term, as follows:---- JUDGMENT.--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, *715
it appears to this court, that the said acts of the legislature of New Hampshire,
of the 27th of June and of the 18th and 26th of December, Anno Domini 1816, 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 said special verdict
in favor of the said plaintiffs; and that the said court ought to have rendered
judgment thereon, that the said trustees recover against the said Woodward, the
amount of damages found and assessed, in and by the verdict aforesaid, viz., the
sum of $20,000: Whereupon, 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 Woodward the aforesaid sum of $20,000, 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 this
judgment into execution. Copr.
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