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ing revolution, the expelled president and fellows of Magdalen
College were permitted to resume their rights. It is evident
that this was regarded as an arbitrary interference with private
property. Yet private property was no otherwise attacked
than as a person was appointed to administer and enjoy the
revenues of a college in a manner and by persons not author
ized by the constitution of the college. A majority of the
members of the corporation would not comply with the king s
wishes. A minority would. The object was therefore to make
this minority a majority. To this end the king s commission
ers were directed to interfere in the case, and they united with
the two complying fellows, and expelled the rest ; and thus ef
fected a change in the government of the college. The lan
guage in which Mr. Hume and all other writers speak of this
abortive attempt of oppression, shows that colleges \vere es
teemed to be, as they truly are, private corporations, and the
property and privileges which belong to them private property
and private privileges. Court lawyers were found to justify the
king in dispensing with the laws ; that is, in assuming and ex
ercising a legislative authority. But no lawyer, not even a
court lawyer, in the reign of King James the Second, as far as
appears, was found to say that, even by this high authority, he
could infringe the franchises of the fellows of a college, and take
away their livings. Mr. Hume gives the reason ; it is, that
such franchises w^ere regarded, in a most emphatic sense, as
private property*

If it could be made to appear that the trustees and the presi
dent and professors held their offices and franchises during the
pleasure of the legislature, and that the property holden be
longed to the State, then indeed the legislature have done no

* See a full account of this case in State Trials, 4th ed., Vol. IV. p. 262.


more than they had a right to do. But this is not so. The
charter is a charter of privileges and immunities ; and these are
holden by the trustees expressly against the State for ever.

It is admitted that the State, by its courts of law, can en
force the will of the donor, and compel a faithful execution of
the trust. The plaintiffs claim no exemption from legal respon
sibility. They hold themselves at all times answerable to the
law of the land, for their conduct in the trust committed to
them. They ask only to hold the property of which they are
owners, and the franchises which belong to them, until they
shall be found, by due course and process of law, to have for
feited them.

It can make no difference whether the legislature exercise the
power it has assumed by removing the trustees and the presi
dent and professors, directly and by name, or by appointing
others to expel them. The principle is the same, and in point
of fact the result has been the same. If the entire franchise
cannot be taken away, neither can it be essentially impaired.
If the trustees are legal owners of the property, they are sole
owners. If they are visitors, they are sole visitors. No one will
be found to say, that, if the legislature may do what it has done,
it may not do any thing and every thing which it may choose
to do, relative to the property of the corporation, and the privi
leges of its members and officers.

If the view which has been taken of this question be at all
correct, this was an eleemosynary corporation, a private charity.
The property was private property. The trustees were visitors,
and the right to hold the charter, administer the funds, and visit
and govern the college, was a franchise and privilege, solemnly
granted to them. The use being public in no way diminishes
their legal estate in the property, or their title to the franchise.
There is no principle, nor any case, which declares that a gift to
such a corporation is a gift to the public. The acts in ques
tion violate property. They take away privileges, immunities,
and franchises. They deny to the trustees the protection of the
law ; and they are retrospective in their operation. In all which
respects they are against the constitution of New Hampshire.

The plaintiffs contend, in the second place, that the acts in
question are repugnant to the tenth section of the first article


of the Constitution of the United States. The material words
of that section are: "No State shall pass any bill of attainder,
ex post facto law, or law impairing the obligation of contracts."

The object of these most important provisions in the national
constitution has often been discussed, both here and elsewhere.
It is exhibited with great clearness and force by one of the dis
tinguished persons who framed that instrument. " Bills of at
tainder, ex post facto laws, and laws impairing the obligation
of contracts, are contrary to the first principles of the social
compact, and to every principle of sound legislation. The two
former are expressly prohibited by the declarations prefixed to
some of the State constitutions, and all of them are prohibited
by the spirit and scope of these fundamental charters. Our own
experience has taught us, nevertheless, that additional fences
against these dangers ought not to be omitted. Very properly,
therefore, have the convention added this constitutional bulwark,
in favor of personal security and private rights ; and I am much
deceived, if they have not, in so doing, as faithfully consulted
the genuine sentiments as the undoubted interests of their con
stituents. The sober people of America are weary of the fluc
tuating policy which has directed the public councils. They
have seen with regret, and with indignation, that sudden chan
ges, and legislative interferences in cases affecting personal rights,
become jobs in the hands of enterprising and influential specu
lators, and snares to the more industrious and less informed
part of the community. They have seen, too, that one legisla
tive interference is but the link of a long chain of repetitions ;
every subsequent interference being naturally produced by the
effects of the preceding." *

It has already been decided in this court, that a grant is a
contract, within the meaning of this provision ; and that a grant
by a State is also a contract, as much as the grant of an indi
vidual. In the case of Fletcher v. Peck f this court says : " A
contract is a compact between two or more parties, and is either
executory or executed. An executory contract is one in which
a party binds himself to do, or not to do, a particular thing;
such was the law under which the conveyance was made by the
government. A contract executed is one in which the object

* The Federalist, No. 44, by Mr. Madison. f 6 Cranch, 87.

VOL. v. 42


of contract is performed ; arid this, says Blackstone, differs in
nothing from a grant. The contract between Georgia and the
purchasers was executed by the grant. A contract executed, as
well as one which is executory, contains obligations binding on
the parties. A grant, in its own nature, amounts to an extin
guishment of the right of the grantor, and implies a contract not
to reassert that right. If, under a fair construction of the Con
stitution, grants are comprehended under the term contracts, is
a grant from the State excluded from the operation of the pro
vision ? Is the clause to be considered as inhibiting the State
from impairing the obligation of contracts between two individu
als, but as excluding from that inhibition contracts made with it
self? The words themselves contain no such distinction. They
are general, and are applicable to contracts of every descrip
tion. If contracts made with the State are to be exempted from
their operation, the exception must arise from the character of
the contracting party, not from the words which are employed.
Whatever respect might have been felt for the State sovereign
ties, it is not to be disguised that the framers of the Constitution
viewed with some apprehension the violent acts which might
grow out of the feelings of the moment ; and that the people of
the United States, in adopting that instrument, have manifested
a determination to shield themselves and their property from
the effects of those sudden and strong passions to which men
are exposed. The restrictions on the legislative power of the
States are obviously founded in this sentiment ; and the Con
stitution of the United States contains what may be deemed a
bill of rights for the people of each State."

It has also been decided, that a grant by a State before the
Revolution is as much to be protected as a grant since.* But
the case of Terrett v. Taylor, before cited, is of all others most
pertinent to the present argument. Indeed, the judgment of the
court in that case seems to leave little to be argued or decided
in this. " A private corporation," say the court, " created by the
legislature, may lose its franchises by a misuser or a nonuser of
them ; and they may be resumed by the government under a
judicial judgment upon a quo warranto to ascertain and enforce
the forfeiture. This is the common law of the land, and is a

* New Jersey i . Wilson, 7 Cranch, 164.


tacit condition annexed to the creation of every such corpora
tion. Upon a change of government, too, it may be admitted,
that such exclusive privileges attached to a private corporation
as are inconsistent with the new government may be abolished.
In respect, also, to public corporations which exist only for pub
lic purposes, such as counties, towns, cities, and so forth, the
legislature may, under proper limitations, have a right to change,
modify, enlarge, or restrain them, securing, however, the proper
ty for the uses of those for whom and at whose expense it was
originally purchased. But that the legislature can repeal stat
utes creating private corporations, or confirming to them proper
ty already acquired under the faith of previous laws, and by such
repeal can vest the property of such corporations exclusively in
the State, or dispose of the same to such purposes as they
please, without the consent or default of the corporators, we are
not prepared to admit ; and we think ourselves standing upon
the principles of natural justice, upon the fundamental laws of
every free government, upon the spirit and letter of the Constitu
tion of the United States, and upon the decisions of most re
spectable judicial tribunals, in resisting such a doctrine."

This court, then, does not admit the doctrine, that a legisla
ture can repeal statutes creating private corporations. If it
cannot repeal them altogether, of course it cannot repeal any
part of them, or impair them, or essentially alter them, without
the consent of the corporators. If, therefore, it has been shown
that this college is to be regarded as a private charity, this case
is embraced within the very terms of that decision. A grant of
corporate powers and privileges is as much a contract as a grant
of land. What proves all charters of this sort to be contracts
is, that they must be accepted to give them force and effect. If
they are not accepted, they are void. And in the case of an
existing corporation, if a new charter is given it, it may even
accept part and reject the rest. In Rex v. Vice- Chancellor of
Cambridge,* Lord Mansfield says : " There is a vast deal of dif
ference between a new charter granted to a new corporation,
(who must take it as it is given,) and a new charter given to a
corporation already in being, and acting either under a former
charter or under prescriptive usage. The latter, a corporation

* 3 Burr. 1656.


already existing, are not obliged to accept the new charter in
toto, and to receive either all or none of it ; they may act partly
under it, and partly under their old charter or prescription. The
validity of these new charters must turn upon the acceptance
of them." In the same case Mr. Justice Wilmot says : " It is
the concurrence and acceptance of the university that gives the
force to the charter of the crown." In the King v. Pasmore,*
Lord Kenyon observes : " Some things are clear : when a cor
poration exists capable of discharging its functions, the crown
cannot obtrude another charter upon them ; they may either
accept or reject it." f

In all cases relative to charters, the acceptance of them is
uniformly alleged in the pleadings. This shows the general
understanding of the law, that they are grants or contracts ;
and that parties are necessary to give them force and validity.
In King v. Dr. Askew, ^ it is said : " The crown cannot oblige
a man to be a corporator, without his consent ; he shall not be
subject to the inconveniences of it, without accepting it and
assenting to it." These terms, " acceptance" and " assent,"
are the very language of contract. In Ellis v. Marshall, it was
expressly adjudged that the naming of the defendant among
others, in an act of incorporation, did not of itself make him a
corporator; and that his assent was necessary to that end.
The court speak of the act of incorporation as a grant, and ob
serve : " That a man may refuse a grant, whether from the gov
ernment or an individual, seems to be a principle too clear to
require the support of authorities." But Justice Buller, in King
v. Pasmore, furnishes, if possible, a still more direct and ex
plicit authority. Speaking of a corporation for government, he
says : " I do not know how to reason on this point better than
in the manner urged by one of the relator s counsel ; who con
sidered 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."
This language applies with peculiar propriety and force to the
case before the court. It was in consequence of the " privi
leges bestowed," that Dr. Wheelock and his associates undertook

* 3 Term Rep. 240. f See also 1 Kyd on Corp. 65.

J 4 Burr. 2200. 2 Mass. Rep. 269.


to exert themselves for the instruction and education of youth
in this college ; and it was on the same consideration that the
founder endowed it with his property.

And because charters of incorporation are of the nature of
contracts, they cannot be altered or varied but by consent of the
original parties. If a charter be granted by the king, it may be
altered by a new charter granted by the king, and accepted by
the corporators. But if the first charter be granted by Parlia
ment, the consent of Parliament must be obtained to any alter
ation. In King v. Miller,* Lord Kenyon says : " Where a cor
poration takes its rise from the king s charter, the king by grant
ing, and the corporation by accepting another charter, may alter
it, because it is done with the consent of all the parties who are
competent to consent to the alteration." f

There are, in this case, all the essential constituent parts of a
contract. There is something to be contracted about, there are
parties, and there are plain terms in which the agreement of the
parties on the subject of the contract is expressed. There are
mutual considerations and inducements. The charter recites,
that the founder, on his part, has agreed to establish his semi
nary in New Hampshire, and to enlarge it beyond its original
design, among other things, for the benefit of that Province;
and thereupon a charter is given to him and his associates, des
ignated by himself, promising and assuring to them, under the
plighted faith of the State, the right of governing the college
and administering its concerns in the manner provided in the
charter. There is a complete and perfect grant to them of all
the power of superintendence, visitation, and government. Is
not this a contract ? If lands or money had been granted to
him and his associates, for the same purposes, such grant could
not be rescinded. And is there any difference, in legal contem
plation, between a grant of corporate franchises and a grant of
tangible property? No such difference is recognized in any
decided case, nor does it exist in the common apprehension of

It is therefore contended, that this case falls within the true
meaning of this provision of the Constitution, as expounded in
the decisions of this court ; that the charter of 1769 is a con-

* 6 Term Rep. 277.

f See also Ex parte Bolton School, 2 Brown s Ch, Rep. 662.



tract, a stipulation or agreement, mutual in its considerations,
express and formal in its terms, and of a most binding and
solemn nature. That the acts in question impair this contract,
has already been sufficiently shown. They repeal and abrogate
its most essential parts.

A single observation may not be improper on the opinion of
the court of New Hampshire, which has been published. The
learned judges who delivered that opinion have viewed this
question in a very different light from that in which the plain
tiffs have endeavored to exhibit it. After some general remarks,
they assume that this college is a public corporation ; and on
this basis their judgment rests. Whether all colleges are not
regarded as private and eleemosynary corporations, by all law
writers and all judicial decisions ; whether this college was not
founded by Dr. Wheelock ; whether the charter was not granted
at his request, the better to execute a trust, which he had already
created ; whether he and his associates did not become visitors,
by the charter ; and whether Dartmouth College be not, there
fore, in the strictest sense, a private charity, are questions which
the learned judges do not appear to have discussed.

It is admitted in that opinion, that, if it be a private corpora
tion, its rights stand on the same ground as those of an indi
vidual. The great question, therefore, to be decided is, To
which class of corporations do colleges thus founded belong?
And the plaintiffs have endeavored to satisfy the court, that,
according to the well-settled principles and uniform decisions
of law, they are private, eleemosynary corporations.

Much has heretofore been said on the necessity of admitting
such a power in the legislature as has been assumed in this
case. Many cases of possible evil have been imagined, which
might otherwise be without remedy. Abuses, it is contended,
might arise in the management of such institutions, \vhich the
ordinary courts of law would be unable to correct. But this is
only another instance of that habit of supposing extreme cases,
and then of reasoning from them, which is the constant refuge
of those who are obliged to defend a cause, which, upon its
merits, is indefensible. It would be sufficient to say in answer,
that it is not pretended that there was here any such case of
necessity. But a still more satisfactory answer is, that the ap
prehension of danger is groundless, and therefore the whole


argument fails. Experience has not taught us that there is
danger of great evils or of great inconvenience from this source.
Hitherto, neither in our own country nor elsewhere have such
cases of necessity occurred. The judicial establishments of the
State are presumed to be competent to prevent abuses and vio
lations of trust, in cases of this kind, as well as in all others.
If they be not, they are imperfect, and their amendment would
be a most proper subject for legislative wisdom. Under the
government and protection of the general laws of the land,
these institutions have always been found safe, as well as use
ful. They go on, with the progress of society, accommodating
themselves easily, without sudden change or violence, to the
alterations which take place in its condition, and in the knowl
edge, the habits, and pursuits of men. The English colleges
were founded in Catholic ages. Their religion was reformed
with the general reformation of the nation ; and they are suited
perfectly well to the purpose of educating the Protestant youth
of modern times. Dartmouth College was established under a
charter granted by the Provincial government ; but a better con
stitution for a college, or one more adapted to the condition of
things under the present government, in all material respects,
could not now be framed. Nothing in it was found to need
alteration at the Revolution. The wise men of that day saw in
it one of the best hopes of future times, and commended it as
it was, with parental care, to the protection and guardianship
of the government of the State. A charter of more liberal
sentiments, of wiser provisions, drawn with more care, or in a
better spirit, could not be expected at any time or from any
source. The college needed no change in its organization or
government. That which it did need was the kindness, the pat
ronage, the bounty of the legislature ; not a mock elevation to
the character of a university, without the solid benefit of a shil
ling s donation to sustain the character; not the swelling and
empty authority of establishing institutes and other colleges.
This unsubstantial pageantry would seem to have been in de
rision of the scanty endowment and limited means of an unob
trusive, but useful and growing seminary. Least of all was
there a necessity, or pretence of necessity, to infringe its legal
rights, violate its franchises and privileges, and pour upon it
these overwhelming streams of litigation.


But this argument from necessity would equally apply in
all other cases. If it be well founded, it would prove, that,
whenever any inconvenience or evil is experienced from the
restrictions imposed on the legislature by the Constitution, these
restrictions ought to be disregarded. It is enough to say, that
the people have thought otherwise. They have, most wisely,
chosen to take the risk of occasional inconvenience from the
want of power, in order that there might be a settled limit to its
exercise, and a permanent security against its abuse. They
have imposed prohibitions and restraints; and they have not
rendered these altogether vain and nugatory by conferring the
power of dispensation. If inconvenience should arise which
the legislature cannot remedy under the power conferred upon
it, it is not answerable for such inconvenience. That which it
cannot do within the limits prescribed to it, it cannot do at all.
No legislature in this country is able, and may the time never
come when it shall be able, to apply to itself the memorable
expression of a Roman pontiff: " Licet hoc DE JURE non pos-
sumus, volumus tamen DE PLENITUDINE POTESTATIS."

The case before the court is not of ordinary importance, nor
of every-day occurrence. It affects not this college only, but
every college, and all the literary institutions of the country.
They have flourished hitherto, and have become in a high degree
respectable and useful to the community. They have all a com
mon principle of existence, the inviolability of their charters. It
will be a dangerous, a most dangerous experiment, to hold these
institutions subject to the rise and fall of popular parties, and
the fluctuations of political opinions. If the franchise may be
at any time taken away, or impaired, the property also may be
taken away, or its use perverted. Benefactors will have no cer
tainty of effecting the object of their bounty ; and learned men
will be deterred from devoting themselves to the service of such
institutions, from the precarious title of their offices. Colleges
and halls will be deserted by all better spirits, and become a
theatre for the contentions of politics. Party and faction will be
cherished in the places consecrated to piety and learning. These
consequences are neither remote nor possible only. They are
certain and immediate.

When the court in North Carolina declared the law of the
State, which repealed a grant to its university, unconstitutional


and void, the legislature had the candor and the wisdom to re
peal the law. This example, so honorable to the State which
exhibited it, is most fit to be followed on this occasion. And
there is good reason to hope that a State, which has hitherto
been so much distinguished for temperate counsels, cautious leg
islation, and regard to law, will not fail to adopt a course which
will accord with her highest and best interests, and in no small
degree elevate her reputation.

It was for many and obvious reasons most anxiously desired

Online LibraryDaniel WebsterThe works of Daniel Webster (Volume 05) → online text (page 48 of 53)