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which does not yield a pecuniary profit ; as if the law regarded
no rights but the rights of money, and of visible, tangible prop
erty. Of what nature are all rights of suffrage ? No elector
has a particular personal interest ; but each has a legal right,
to be exercised at his own discretion, and it cannot be taken
away from him. The exercise of this right directly and very
materially affects the public ; much more so than the exercise
of the privileges of a trustee of this college. Consequences of
the utmost magnitude may sometimes depend on the exercise
of the right of suffrage by one or a few electors. Nobody was
ever yet heard to contend, however, that on that account the
public might take away the right, or impair it. This notion
appears to be borrowed from no better source than the repu
diated doctrine of the three judges in the Aylesbury case.*
That was an action against a returning officer for refusing \\ie
plaintiff s vote, in the election of a member of Parliament.
Three of the judges of the King s Bench held, that the action
could not be maintained, because, among other objections, " it
was not any matter of profit, either in present^ or infuturo" It
would not enrich the plaintiff in presenti, nor would it infuturo
go to his heirs, or answer to pay his debts. But Lord Holt and
the House of Lords were of another opinion. The judgment
of the three judges was reversed, and the doctrine they held,
having been exploded for a century, seems now for the first
time to be revived.

Individuals have a right to use their own property for pur
poses of benevolence, either towards the public, or towards other
individuals. They have a right to exercise this benevolence in
such lawful manner as they may choose ; and when the govern
ment has induced and excited it, by contracting to give perpe
tuity to the stipulated manner of exercising it, it is not law, but
violence, to rescind this contract, and seize on the property.
Whether the State will grant these franchises, and under what
conditions it will grant them, it decides for itself. But when
once granted, the constitution holds them to be sacred, till for
feited for just cause.

* Ashby v. White, 2 Lord Raymond, 938.
VOL. V. 41



482 THE DARTMOUTH COLLEGE CASE.

That all property, of which the use may be beneficial to the
public, belongs therefore to the public, is quite a new doctrine.
It has no precedent, and is supported by no known principle.
Dr. Wheelock might have answered his purposes, in this case, by
executing a private deed of trust. He might have conveyed his
property to trustees, for precisely such uses as are described in
this charter. Indeed, it appears that he had contemplated the
establishing of his school in that manner, and had made his will,
and devised the property to the same persons who were after
wards appointed trustees in the charter. Many literary and
other charitable institutions are founded in that manner, and the
trust is renewed, and conferred on other persons, from time to
time, as occasion may require. In such a case, no lawyer would
or could say, that the legislature might divest the trustees, con
stituted by deed or will, seize upon the property, and give it to
other persons, for other purposes. And does the granting of a
charter, which is only done to perpetuate the trust in a more
convenient manner, make any difference ? Does or can this
change the nature of the charity, and turn it into a public po
litical corporation ? Happily, we are not without authority on
this point. It has been considered and adjudged. Lord Hard-
wicke says, in so many words, " The charter of the crown cannot
make a charity more or less public, but only more permanent
than it would otherwise be." *

The granting of the corporation is but making the trust per
petual, and does not alter the nature of the charity. The very
object sought in obtaining such charter, and in giving property
to such a corporation, is to make and keep it private property,
and to clothe it with all the security and inviolability of pri
vate property. The intent is, that there shall be a legal private
ownership, and that the legal owners shall maintain and protect
the property, for the benefit of those for w r hose use it was de
signed. Who ever endowed the public ? Who ever appointed
a legislature to administer his charity? Or who ever heard,
before, that a gift to a college, or a hospital, or an asylum, was,
in reality, nothing but a gift to the State ?

The State of Vermont is a principal donor to Dartmouth
College. The lands given lie in that State. This appears in

* Attorney-General v. Pearce, 2 Atk. 87.



THE DARTMOUTH COLLEGE CASE. 483

the special verdict. Is Vermont to be considered as having in
tended a gift to the State of New Hampshire in this case, as,
it has been said, is to be the reasonable construction of all dona
tions to the college ? The legislature of New Hampshire affects
to represent the public, and therefore claims a right to control
all property destined to public use. What hinders Vermont
from considering herself equally the representative of the public,
and from resuming her grants, at her own pleasure ? Her right
to do so is less doubtful than the power of New Hampshire to
pass the laws in question.

In University v. Foy,* the Supreme Court of North Carolina
pronounced unconstitutional and void a law repealing a grant to
the University of North Carolina, although that university was
originally erected and endowed by a statute of the State. That
case was a grant of lands, and the court decided that it could not
be resumed. This is the grant of a power and capacity to hold
lands. Where is the difference of the cases, upon principle ?

In Terrett v. Taylor f this court decided that a legislative
grant or confirmation of lands, for the purposes of moral and
religious instruction, could no more be rescinded than other
grants. The nature of the use was not holden to make any
difference. A grant to a parish or church, for the purposes
which have been mentioned, cannot be distinguished, in respect
to the title it confers, from a grant to a college for the promo
tion of piety and learning. To the same purpose may be cited
the case of Pawlett v. Clark. The State of Vermont, by stat
ute, in 1794, granted to the respective towns in that State cer
tain glebe lands lying within those towns for the sole use and
support of religious worship. In 1799, an act was passed to
repeal the act of 1794 ; but this court declared, that the act of
1794, " so far as it granted the glebes to the towns, could not
afterwards be repealed by the legislature, so as to divest the
rights of the towns under the grant." $

It will be for the other side to show that the nature of the
use decides the question whether the legislature has power to
resume its grants. It will be for those who maintain such a
doctrine to show the principles and cases upon which it rests.
It will be for them also to fix the limits and boundaries of their

* 2 Haywood s Rep. f 9 Cranch, 43. t 9 Cranch, 292.



484 THE DARTMOUTH COLLEGE CASE.

doctrine, and to show what are and what are not such uses as
to give the legislature this power of resumption and revocation.
And to furnish an answer to the cases cited, it will be for them
further to show that a grant for the use and support of religious
worship stands on other ground than a grant for the promotion
of piety and learning.

I hope enough has been said to show that the trustees pos
sessed vested liberties, privileges, and immunities, under this
charter; and that such liberties, privileges, and immunities,
being once lawfully obtained and vested, are as inviolable as
any vested rights of property whatever. Rights to do certain
acts, such, for instance, as the visitation and superintendence
of a college and the appointment of its officers, may surely be
vested rights, to all legal intents, as completely as the right to
possess property. A late learned judge of this court has said,
" When I say that a right is vested in a citizen, I mean that he
has the power to do certain actions, or to possess certain things,
according to the law of the land." *

If such be the true nature of the plaintiffs interests under
this charter, what are the articles in the New Hampshire Bill of
Rights which these acts infringe ?

They infringe the second article ; which says, that the citizens
of the State have a right to hold and possess property. The
plaintiffs had a legal property in this charter; and they had
acquired property under it. The acts deprive them of both.
They impair and take away the charter; and they appropriate
the property to new uses, against their consent. The plaintiffs
cannot now hold the property acquired by themselves, and
which this article says they have a right to hold.

They infringe the twentieth article. By that article it is
declared that, in questions of property, there is a right to trial.
The plaintiffs are divested, without trial or judgment.

They infringe the twenty-third article. It is therein declared
that no retrospective laws shall be passed. This article bears
directly on the case. These acts must be deemed to be retro
spective, within the settled construction of that term. What a
retrospective law is, has been decided, on the construction of
this very article, in the Circuit Court for the First Circuit. The

* 3 Dallas, 394.



THE DARTMOUTH COLLEGE CASE. 485

learned judge of that circuit says : " Every statute which takes
away or impairs vested rights, acquired under existing laws,
must be deemed retrospective." * That all such laws are retro
spective was decided also in the case of Dash v. Van Kleek,f
where a most learned judge quotes this article from the consti
tution of New Hampshire, with manifest approbation, as a
plain and clear expression of those fundamental and unalterable
principles of justice, which must lie at the foundation of every
free and just system of laws. Can any man deny that the
plaintiffs had rights, under the charter, which were legally vested,
and that by these acts those rights are impaired ?

" It is a principle in the English law," says Chief Justice Kent,
in the case last cited, " as ancient as the law itself, that a stat
ute, even of its omnipotent Parliament, is not to have a retro
spective effect. Nova constitutio futuris formam imponere debet,
et non prceteritis.^. The maxim in Bracton was taken from
the civil law, for we find in that system the same principle, ex
pressed substantially in the same words, that the lawgiver can
not alter his mind to the prejudice of a vested right. Nemo
potest mutare concilium suum in alterius injuriam.^ This maxim
of Papinian is general in its terms, but Dr. Taylor || applies it
directly as a restriction upon the lawgiver, and a declaration in
the Code leaves no doubt as to the sense of the civil law. Leges
et constitutiones futuris cerium est dare formam negotiis^ non ad
facta pror.terita revocari, nisi nominatim, et de prceterito tempore^
et adhuc pendentibus negotiis cautum sit.^ This passage, accord
ing to the best interpretation of the civilians, relates not merely
to future suits, but to future, as contradistinguished from past,
contracts and vested rights.** It is indeed admitted that the
prince may enact a retrospective law, provided it be done ex
pressly ; for the will of the prince under the despotism of the
Roman emperors was paramount to every obligation. Great
latitude was anciently allowed to legislative expositions of
statutes ; for the separation of the judicial from the legislative
power was not then distinctly known or prescribed. The prince
was in the habit of interpreting his own laws for particular

* Society v. Wheeler, 2 Gal. 103. f 7 Johnson s Rep. 477.

t Bracton, Lib. 4, fol. 228. 2d Inst. 292. Dig. 50. 17. 75.

| Elements of the Civil Law, p. 168. % Cod. 1. 14. 7.
** Perezii Praelect. h. t.



41



486 THE DARTMOUTH COLLEGE CASE.

occasions. This was called the Interlocutio Principis ; and this,
according to Huber s definition, was, quando principes inter
paries loquuntur et jus dicunt.* No correct civilian, and espe
cially no proud admirer of the ancient republic (if any such then
existed), could have reflected on this interference with private
rights and pending suits without disgust and indignation ; and
we are rather surprised to find that, under the violent and arbi
trary genius of the Roman government, the principle before us
should have been acknowledged and obeyed to the extent in
which we find it. The fact shows that it must be founded in
the clearest justice. Our case is happily very different from
that of the subjects of Justinian. With us the power of the
lawgiver is limited and defined ; the judicial is regarded as a dis
tinct, independent power ; private rights are better understood
and more exalted in public estimation, as well as secured by
provisions dictated by the spirit of freedom, and unknown to
the civil law. Our constitutions do not admit the power as
sumed by the Roman prince, and the principle we are consid
ering is now to be regarded as sacred."

These acts infringe also the thirty-seventh article of the con
stitution of New Hampshire ; which says, that the powers of
government shall be kept separate. By these acts, the legislature
assumes to exercise a judicial power. It declares a forfeiture,
and resumes franchises, once granted, without trial or hearing.

If the constitution be not altogether waste-paper, it has re
strained the power of the legislature in these particulars. If it
has any meaning, it is that the legislature shall pass no act
directly and manifestly impairing private property and private
privileges. It shall not judge by act. It shall not decide by
act. It shall not deprive by act. But it shall leave all these
things to be tried and adjudged by the law of the land.

The fifteenth article has been referred to before. It declares
that no one shall be " deprived of his property, immunities, or
privileges, but by the judgment of his peers or the law of the
land." Notwithstanding the light in which the learned judges
in New Hampshire viewed the rights of the plaintiffs under the
charter, and which has been before adverted to, it is found to be
admitted in their opinion, that those rights are privileges within

* Prelect. Juris Civ., Vol. II. p. 515.



THE DARTMOUTH COLLEGE CASE. 487

the meaning of this fifteenth article of the Bill of Rights. Hav
ing quoted that article, they say : " That the right to manage the
affairs of this college is a privilege, within the meaning of this
clause of the Bill of Rights, is not to be doubted." In my hum
ble opinion, this surrenders the point. To resist the effect of
this admission, however, the learned judges add : " But how a
privilege can be protected from the operation of the law of the
land by a clause in the constitution, declaring that it shall not
be taken away but by the law of the land, is not very easily un
derstood." This answer goes on the ground, that the acts in
question are laws of the land, within the meaning of the consti
tution. If they be so, the argument drawn from this article is
fully answered. If they be not so, it being admitted that the
plaintiffs rights are " privileges," within the meaning of the arti
cle, the argument is not answered, and the article is infringed
by the acts.

Are, then, these acts of the legislature, which affect only par
ticular persons and their particular privileges, laws of the land ?
Let this question be answered by the text of Blackstone. " And
first it (i. e. law) is a rule : not a transient, sudden order from a
superior to or concerning a particular person ; but something
permanent, uniform, and universal. Therefore a particular act
of the legislature to confiscate the goods of Titius, or to attaint
him of high treason, does not enter into the idea of a municipal
law ; for the operation of this act is spent upon Titius only, and
has no relation to the community in general ; it is rather a sen
tence than a law." * Lord Coke is equally decisive and em
phatic. Citing and commenting on the celebrated twenty-ninth
chapter of Magna Charta, he says : " No man shall be disseized,
&c., unless it be by the lawful judgment, that is, verdict of
equals, or by the law of the land, that is (to speak it once for
all), by the due course and process of law."f Have the plain
tiffs lost their franchises by " due course and process of law " ?
On the contrary, are not these acts " particular acts of the leg
islature, which have no relation to the community in general,
and which are rather sentences than laws " ?

By the law of the land is most clearly intended the general
law; a law which hears before it condemns; which proceeds

* 1 Black. Cora. 44. f Coke, 2 Inst. 46.



488 THE DARTMOUTH COLLEGE CASE.

upon inquiry, and renders judgment only after trial. The mean
ing is, that every citizen shall hold his life, liberty, property, and
immunities under the protection of the general rules which gov
ern society. Every thing which may pass under the form of an
enactment is not therefore to be considered the law of the land.
If this were so, acts of attainder, bills of pains and penalties, acts
of confiscation, acts reversing judgments, and acts directly trans
ferring one man s estate to another, legislative judgments, de
crees, and forfeitures in all possible forms, would be the law of
the land.

Such a strange construction would render constitutional pro
visions of the highest importance completely inoperative and
void. It would tend directly to establish the union of all powers
in the legislature. There would be no general, permanent law
for courts to administer or men to live under. The administra
tion of justice would be an empty form, an idle ceremony.
Judges would sit to execute legislative judgments and decrees ;
not to declare the law or to administer the justice of the coun
try. "Is that the law of the land," said Mr. Burke, "upon
which, if a man go to Westminster Hall, and ask counsel by
what title or tenure he holds his privilege or estate according to
the law of the land, he should be told, that the law of the land is
not yet known ; that no decision or decree has been made in his
case ; that when a decree shall be passed, he will then know
ivhat the law of Ike land is ? Will this be said to be the law of
the land, by any lawyer who has a rag of a gown left upon his
back, or a wig with one tie upon his head ? "

That the power of electing and appointing the officers of this
college is not only a right of the trustees as a corporation, gen
erally, and in the aggregate, but that each individual trustee has
also his own individual franchise in such right of election and
appointment, is according to the language of ail the authorities.
Lord Holt says : " It is agreeable to reason and the rules of law,
that a franchise Should be vested in the corporation aggregate,
and yet the benefit of it to redound to the particular members,
and to be enjoyed by them in their private capacity. Where
the privilege of election is used by particular persons, it is a par
ticular right) vested in every particular man" *

* 2 Lord Raymond, 952.



THE DARTMOUTH COLLEGE CASE. 489

It is also to be considered, that the president and professors
of this college have rights to be affected by these acts. Their
interest is similar to that of fellows in the English colleges ; be
cause they derive their living, wholly or in part, from the found
er s bounty. The president is one of the trustees or corpora
tors. The professors are not necessarily members of the cor
poration ; but they are appointed by the trustees, are removable
only by them, and have fixed salaries payable out of the general
funds of the college. Both president and professors have free
holds in their offices ; subject only to be removed by the trus
tees, as their legal visitors, for good cause. All the authorities
speak of fellowships in colleges as freeholds, notwithstanding the
fellows may be liable to be suspended or removed, for misbe
havior, by their constituted visitors.

Nothing could have been less expected, in this age. than that
there should have been an attempt, by acts of the legislature, to
take away these college livings, the inadequate but the only
support of literary men who have devoted their lives to the in
struction of youth. The president and professors were appoint
ed by the twelve trustees. They were accountable to nobody
else, and could be removed by nobody else. They accepted
their offices on this tenure. Yet the legislature has appointed
other persons, with power to remove these officers and to de
prive them of their livings ; and those other persons have exer
cised that power. No description of private property has been
regarded as more sacred than college livings. They are the
estates and freeholds of a most deserving class of men; of
scholars who have consented to forego the advantages of pro
fessional and public employments, and to devote themselves to
science and literature and the instruction of youth in the quiet
retreats of academic life. Whether to dispossess and oust them ;
to deprive them of their office, and to turn them out of their
livings ; to do this, not by the power of their legal visitors or
governors, but by acts of the legislature, and to do it without
forfeiture and without fault ; whether all this be not in the high
est degree an indefensible and arbitrary proceeding, is a ques
tion of \vhich there would seem to be but one side fit for a law
yer or a scholar to espouse.

Of all the attempts of James the Second to overturn the law,
and the rights of his subjects, none was esteemed more arbitra-



490 THE DARTMOUTH COLLEGE CASE.

ry or tyrannical than his attack on Magdalen College, Oxford ;
and yet that attempt was nothing but to put out one president
and put in another. The president of that college, according to
the charter and statutes, is to be chosen by the fellows, who are
the corporators. There being a vacancy, the king chose to take
the appointment out of the hands of the fellows, the legal elec
tors of a president, into his own hands. He therefore sent
down his mandate, commanding the fellows to admit for presi
dent a person of his nomination ; and, inasmuch as this was
directly against the charter and constitution of the college, he
was pleased to add a non obstante clause of sufficiently compre
hensive import. The fellows were commanded to admit the
person mentioned in the mandate, " any statute, custom, or
constitution to the contrary notwithstanding, wherewith we are
graciously pleased to dispense, in this behalf." The fellows
refused obedience to this mandate, and Dr. Hough, a man of
independence and character, was chosen president by the fel
lows, according to the charter and statutes. The king then
assumed the power, in virtue of his prerogative, to send down
certain commissioners to turn him out; which was done ac
cordingly ; and Parker, a creature suited to the times, put in his
place. Because the president, who was rightfully and legally
elected, would not deliver the keys, the doors ivere broken open.
" The nation as well as the university," says Bishop Burnet,*
" looked on all these proceedings with just indignation. It was
thought an open piece of robbery and burglary when men, au
thorized by no legal commission, came and forcibly turned men
out of their possession and freehold." Mr. Hume, although a
man of different temper, and of other sentiments, in some re
spects, than Dr. Burnet, speaks of this arbitrary attempt of pre
rogative in terms not less decisive. " The president, and all
the fellows," says he, " except two, who complied, were ex
pelled the college, and Parker was put in possession of the
office. This act of violence, of all those which were committed
during the reign of James, is perhaps the most illegal and ar
bitrary. When the dispensing power was the most strenuously
insisted on by court lawyers, it had still been allowed that the
statutes which regard private property could not legally be in-

* History of his own Times, Vol. III. p. 119.



THE DARTMOUTH COLLEGE CASE. 491

fringed by that prerogative. Yet, in this instance, it appeared
that even these were not now secure from invasion. The priv
ileges of a college are attacked ; men are illegally dispossessed
of their property for adhering to their duty, to their oaths, and
to their religion."

This measure King James lived to repent, after repentance
was too late. When the charter of London was restored, and
other measures of violence were retracted, to avert the impend



Online LibraryDaniel WebsterThe works of Daniel Webster (Volume 05) → online text (page 47 of 53)