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ERROR TO
THE COURT OF APPEALS OF THE STATE OF VIRGINIA | |
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Syllabus |
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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 that clause of the
Constitution of the United States, art. 1, s. 10, which declares that no
state shall make any law impairing the obligation of contracts. The
charter was not dissolved by the Revolution.
An act of the State Legislature of New Hampshire altering the charter
without the consent of the corporation in a material respect, is an act
impairing the obligation of the charter, and is unconstitutional and
void.
Under its charter, Dartmouth College was a private, and not a public,
corporation. That a corporation is established for purposes of general
charity, or for education generally does not, per se, make it a public
corporation, liable to the control of the legislature.
The case was argued at February Term, 1811, and was decided at February
Term, 1812. The defendant had died after February Term, 1811. The
judgment was entered nunc pro tunc.
This was an action of trover, brought in the State court, in which the
plaintiffs in error declared for [p*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, [p*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
schoolmasters 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 schoolmasters, 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., [p*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, [p*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 [p*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 wellbeing 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. [p*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 forever, will, give, grant, constitute and ordain that there
shall be in the said Dartmouth College, from henceforth and forever, 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 [p*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 forever 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 forever hereafter, plea and be impleaded by
the name of the Trustees of Dartmouth College; and that the said
corporation, [p*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 schoolmasters 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
[p*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 forever, we do, for us, our heirs and successors, will,
give and grant unto the Trustees of Dartmouth College, and to their
successors forever that there shall be, once a year, and every year, a
meeting of said trustees, held at said Dartmouth College, at such time
as by said trustees, or the major part of them, at any legal meeting of
said trustees, shall be agreed on; the first meeting to be called by the
said Eleazar Wheelock, as soon as conveniently may be, within one year
next after the enrollment of these our letters-patent, at such time and
place as he shall judge proper. And the said trustees, or the major part
of any seven or more of them, shall then determine on the time for
holding the annual meeting aforesaid, which may 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 [p*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 forever that when any seven or more of the said
trustees, or their successors, are convened and met together, for the
service of said Dartmouth College, at any time or times, such 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 [p*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
[p*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 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
[p*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
forever, 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; [p*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 [p*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 enrollment 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. [p*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. [p*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. [p*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 [p*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 forever that these our letters-patent,
on the enrollment 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 forever. In testimony whereof, we have caused these our
letters to be made patent, and the public seal of [p*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 [p*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 Dartmouth 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, [p*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 [p*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 forever 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, [p*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 [p*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 [p*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 [p*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 [p*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 [p*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
Governor, 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 [p*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: [p*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 [p*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 [p*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, [p*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. [p*624] |
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Opinions
STORY, J., Opinion of the Court
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Mr. Chief
Justice MARSHALL delivered the opinion of the Court.
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. [p*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. [p*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 [p*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, it 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, [p*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 [p*629] description, to cases within the mischief it was intended
to remedy.
The general correctness of these observations cannot be controverted.
That the framers of the Constitution did not intend to restrain the
States in the regulation of their civil institutions, adopted for
internal government, and that the 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. [*] 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.
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
[p*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 forever 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 [p*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. n 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
[p*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 [p*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 [p*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 [p*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 [p*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 [p*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, [p*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
[p*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 [p*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 [p*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 [p*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 forever, 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, [p*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 [p*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
[p*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
[p*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 modeling 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 [p*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 forever 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 [p*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 forever, 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 [p*649] selected? The charter informs
us. Dr. Wheelock had represented
that, for many weighty reasons, it would be expedient 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 and [p*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. [p*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 forever, and that the number of Trustees should forever consist
of twelve, and no more. By this contract, the Crown was bound, and could
have made no 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 -- [p*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. [p*653] They contracted for a system
which should, so far as human foresight can provide, retain forever 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 reorganized, and reorganized 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 [p*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.
* Starr v. Hamilton, 1 Deady 268. | |
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WASHINGTON,
J., Concurring Opinion
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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 [p*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, [p*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 , [p*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.
[p*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 reassert 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 [p*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 Lord 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 [p*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. [p*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 [p*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
forever 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 [p*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 nonuser, 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 [p*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 [p*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 [p*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.
Mr. Justice JOHNSON concurred for the reasons stated by the Chief
Justice.
Mr. Justice LIVINGSTON concurred for the reasons stated by the Chief
Justice, and Justices WASHINGTON and STORY. | |
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STORY,
J., Concurring Opinion
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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 jurisdiction of this Court
properly applies: [p*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 [p*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 Bl.Rep. 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 [p*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 [p*670] shaken but by undermining the
most solid foundations of the common law. Philips v. Bury, 1
Lord 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 [p*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 housekeepers, 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. Case of Sutton's 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 [p*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 Lord Raym. 5; S. C.
Comb. 265; Holt 715; 1 Show. 360; 4 Mod. 106; Skin. 447; and Lord 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 munificent 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, [p*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 eleemosynary
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 donation 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 [p*674] with admirable fulness and
accuracy by Lord Holt in one of his most celebrated judgments. Phillips
v. Bury, 1 Lord 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
Bl.Rep. 84., S. C. 2 Burr. 200; Attorney General v. Clare College,
3 Atk. 662; S. C. 1 Ves. 78. In the construction [p*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 Lord Raym. 5; S. C. 2 T.R. 346;
Green v. Rutherforth, 1 Ves. 472; Attorney General v.
Middleton, 2 Ves. 327; Case of Sutton Hospital, 10 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. 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 nonuser [p*676] of them. I t is subject to the controlling
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. [n1] 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 [p*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.Parl.Cases 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 schoolmasters 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 [p*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
wellbeing 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 [p*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 forever, 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 forever
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 six thousand pounds. 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 schoolmasters as shall be employed by the Trustees for instructing
the Indians, salaries and [p*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 [p*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 [p*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 reassert 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 [p*683] the Constitution now in question,
and that it implies a contract not to reassume 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 mero 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 [p*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 reassume 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 [p*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.Abridg. 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 [p*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 [p*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. [p*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 [p*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 forever
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, [p*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
natura with whom it might be made. Is this, however, a just and
legal view of the [p*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's Hospital,
10 Co. 23; Buckland v. Fowcher, cited 10 Co. 27, 28, and
recognised in Attorney General v. Bowyer, 3 Ves.Jun. 714, 726,
727, S. P. Highmore on Mortm. 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. 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 [p*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 [p*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 [p*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
[p*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, 9 Cranch 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. Terret v. Taylor, 9 Cranch
43; Town of Pawlet v. Clark, 9 Cranch 292. A general law
regulating divorces from the contract of marriage, like a law regulating
[p*696] remedies in other cases of breaches of contracts, is not
necessarily a law impairing the obligation of such a contract.
Holmes v. Lansing, 3 Johns.Cas. 73. 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 any 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 [p*697] contract. 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 [p*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. [p*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. [n2] 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. [p*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' Cases in Error 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 [p*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 Lord
Raym. 938; 1 Kyd on Corp. 16. [p*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 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 [p*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, [p*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 Lord 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 N.P.Rep. 153. But assuming this case to have been rightly
decided (as to which, upon the authorities, there may be room to doubt),
the corporators [p*705] being technically parties to the record, Attorney
General v. City of London, 3 Bro.Ch.C. 171; S. C. 1 Ves.Jun. 243;
Burton v. Hinde, 5 T.R. 174, Nason v. Thatcher, 7
Mass.Rep. 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 injuria. 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 [p*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.Ch.C. 171; S. C. 1 Ves.Jun. 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.Jun. 243, states, [p*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 Johns.Cas.. 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 [p*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.Rep. 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.Rep. 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 [p*709] of whom shall form a
quorum, that they and their successors shall hold, use, and enjoy
forever all the powers, authorities, rights, property, liberties,
privileges and 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 overseers,
fifteen of whom shall form a quorum, of whom five are to be such ex
officio, and the residue of the Overseers, as well as the new
Trustees, are to be appointed by 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, [p*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, cooperating 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 [p*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 [p*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 [p*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. [p*714]
1. 2 Fonb.Eq., b. 2, pt. 2, ch. 1, s. 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. Ch. 165; S. C. 2 Ves.Jun. 42; Eden v. Foster,
2 P.W. 325; 1 Wooddes. 476; Attorney General v. Price, 3 Atk. 108;
Attorney General v. Lock, 3 Atk. 164; Attorney General v. Dixie, 13 Ves.
519; Ex parte Kirby Ravensworth Hospital, 15 Ves. 304, 314; Attorney
General v. Earl of Clarendon, 17 Ves. 491, 499; Berkhamstead Free
School, 2 Ves. & Beames 134; Attorney General v. Corporation of
Carmarthen, Coop.Rep. 30; Mayor, &c. of Colchester v. Lowten, 1 Ves.
& Beames 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.
2. Co.Litt. 113a; 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.Rep. 527; Zebach v. Smith, 3 Binn. 69; Lessee of Moody v.
Vandyke, 4 Binn. 7, 31; Attorney General v. Gley, 1 Atk. 356; 1 Bac.Abr.
586 (Gwill. edit.). | |
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DUVALL,
J., Dissenting Opinion
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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, [p*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. | |
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