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
Page 17 U. S. 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,
Page 17 U. S. 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.,
Page 17 U. S. 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,
Page 17 U. S. 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
Page 17 U. S. 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. "
Page 17 U. S. 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
Page 17 U. S. 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,
Page 17 U. S. 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
Page 17 U. S. 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
Page 17 U. S. 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
Page 17 U. S. 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
Page 17 U. S. 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;
Page 17 U. S. 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
Page 17 U. S. 532
directions, and during the pleasure of said trustees, as fully
and freely as "
brk:
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.
Page 17 U. S. 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. "
Page 17 U. S. 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.
"
Page 17 U. S. 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
Page 17 U. S. 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
Page 17 U. S. 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
Page 17 U. S. 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,
Page 17 U. S. 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
Page 17 U. S. 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,
Page 17 U. S. 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
Page 17 U. S. 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
Page 17 U. S. 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
Page 17 U. S. 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
Page 17 U. S. 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
Page 17 U. S. 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
Page 17 U. S. 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: "
Page 17 U. S. 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
Page 17 U. S. 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
Page 17 U. S. 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,
Page 17 U. S. 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.
Page 17 U. S. 624
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.
Page 17 U. S. 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.
Page 17 U. S. 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
Page 17 U. S. 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,
Page 17 U. S. 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
Page 17 U. S. 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
Page 17 U. S. 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
Page 17 U. S. 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
Page 17 U. S. 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
Page 17 U. S. 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
Page 17 U. S. 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
Page 17 U. S. 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
Page 17 U. S. 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
Page 17 U. S. 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,
Page 17 U. S. 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
Page 17 U. S. 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
Page 17 U. S. 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
Page 17 U. S. 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
Page 17 U. S. 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,
Page 17 U. S. 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
Page 17 U. S. 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
Page 17 U. S. 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
Page 17 U. S. 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
Page 17 U. S. 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
Page 17 U. S. 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
Page 17 U. S. 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
Page 17 U. S. 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.
Page 17 U. S. 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 --
Page 17 U. S. 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.
Page 17 U. S. 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
Page 17 U. S. 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.
WASHINGTON, Justice.
This cause turns upon the validity of certain laws of the State
of New Hampshire, which have been stated in the case, and which, it
is contended by the counsel for the plaintiffs
Page 17 U. S. 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,
Page 17 U. S. 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,
Page 17 U. S. 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.
Page 17 U. S. 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
Page 17 U. S. 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
Page 17 U. S. 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.
Page 17 U. S. 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
Page 17 U. S. 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
Page 17 U. S. 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
Page 17 U. S. 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
Page 17 U. S. 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
Page 17 U. S. 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.
Mr. Justice STORY.
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:
Page 17 U. S. 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
Page 17 U. S. 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
Page 17 U. S. 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
Page 17 U. S. 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
Page 17 U. S. 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
Page 17 U. S. 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,
Page 17 U. S. 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 dotation of it, in which
sense the first gift of the revenues is the foundation, and he who
gives them is, in the law, the founder; and it is in this last
sense we generally call a man the founder of a college or
hospital."
1 Bl.Com. 480, 10 Co. 33.
To all eleemosynary corporations, a visitatorial power attaches
as a necessary incident, for these corporations being composed of
individuals, subject to human infirmities, are liable as well as
private persons to deviate from the end of their institution. The
law, therefore, has provided that there shall somewhere exist a
power to visit, inquire into, and correct all irregularities and
abuses in such corporations, and to compel the original purposes of
the charity to be faithfully fulfilled. 1 Bl.Com. 480. The nature
and extent of this visitatorial power has been expounded
Page 17 U. S. 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
Page 17 U. S. 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
Page 17 U. S. 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. [
Footnote 1] 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
Page 17 U. S. 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
Page 17 U. S. 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,
brk:
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
Page 17 U. S. 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
Page 17 U. S. 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
Page 17 U. S. 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
Page 17 U. S. 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,
10 U. S. 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
Page 17 U. S. 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
Page 17 U. S. 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
Page 17 U. S. 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
Page 17 U. S. 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
Page 17 U. S. 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.
Page 17 U. S. 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
Page 17 U. S. 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,
Page 17 U. S. 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
Page 17 U. S. 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
Page 17 U. S. 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
Page 17 U. S. 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
Page 17 U. S. 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
Page 17 U. S. 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
Page 17 U. S. 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
Page 17 U. S. 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
Page 17 U. S. 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.
Page 17 U. S. 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. [
Footnote 2] 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.
Page 17 U. S. 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
Page 17 U. S. 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.
Page 94 U. S. 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
Page 17 U. S. 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,
Page 17 U. S. 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
Page 17 U. S. 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
Page 17 U. S. 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,
Page 17 U. S. 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,
13 U. S. 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
Page 17 U. S. 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
Page 17 U. S. 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,
Page 17 U. S. 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
Page 17 U. S. 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
Page 17 U. S. 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
Page 17 U. S. 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.
Page 17 U. S. 714
[
Footnote 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.
[
Footnote 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.).
DUVALL, Justice, dissented.
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,
Page 17 U. S. 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.
