Trustees of Dartmouth College v. Woodward

U.S. SUPREME COURT

Trustees of Dartmouth College v. Woodward

17 U.S. 518

STORY, J., Concurring Opinion

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: [p*667] 1. Whether the original charter of Dartmouth College is a contract within the prohibitory clause of the Constitution of the United States, which declares that no State shall pass any "law impairing the obligation of contracts?" 2. If so, whether the legislative acts of New Hampshire of the 27th of June, and of the 18th and 27th of December, 1816, or any of them, impair the obligations of that charter?

It will be necessary, however, before we proceed to discuss these questions, to institute an inquiry into the nature, rights and duties of aggregate corporations at common law, that we may apply the principles drawn from this source to the exposition of this charter, which was granted emphatically with reference to that law.

An aggregate corporation, at common law, is a collection of individuals, united into one collective body under a special name and possessing certain immunities, privileges and capacities in its collective character which do not belong to the natural persons composing it. Among other things, it possesses the capacity of perpetual succession, and of acting by the collected vote or will of its component members, and of suing and being sued in all things touching its corporate rights and duties. It is, in short, an artificial person, existing in contemplation of law and endowed with certain powers and franchises which, though they must be exercised through the medium of its natural members, are yet considered as subsisting in the corporation itself as distinctly as if it were a real personage. Hence, such a corporation may sue and be sued by its own members, and [p*668] may contract with them in the same manner as with any strangers. 1 Bl.Com. 469, 475, 1 Kyd on Corp. 13, 69, 189, 1 Wooddes. 471, &c. A great variety of these corporations exist in every country governed by the common law, in some of which, the corporate existence is perpetuated by new elections, made from time to time, and in others by a continual accession of new members, without any corporate act. Some of these corporations are, from the particular purposes to which they are devoted, denominated spiritual, and some lay, and the latter are again divided into civil and eleemosynary corporations. It is unnecessary, in this place, to enter into any examination of civil corporations. Eleemosynary corporations are such as are constituted for the perpetual distribution of the free alms and bounty of the founder in such manner as he has directed, and in this class are ranked hospitals for the relief of poor and impotent persons, and Colleges for the promotion of learning and piety and the support of persons engaged in literary pursuits. 1 Bl.Com. 469, 470, 471, 482; 1 Kyd on Corp. 25; 1 Wooddes. 474; Attorney General v. Whorwood, 1 Ves. 534; St. John's College v. Todington, 1 Bl.Rep. 84, S.C. 1 Burr. 200; Philips v. Bury, 1 Ld. Raym. 5, S.C. 2 T.R. 346; Porter's Case, 1 Co. 22, b. 23.

Another division of corporations is into public and private. Public corporations are generally esteemed such as exist for public political purposes only, such as towns, cities, parishes and counties, and in many respects they are so, although they involve some private interests; but, strictly speaking, public corporations [p*669] are such only as are founded by the government for public purposes, where the whole interests belong also to the government. If, therefore, the foundation be private, though under the charter of the government, the corporation is private, however extensive the uses may be to which it is devoted, either by the bounty of the founder, or the nature and objects of the institution. For instance, a bank created by the government for its own uses, whose stock is exclusively owned by the government, is, in the strictest sense, public corporation. So an hospital created and endowed by the government for general charity. But a bank whose stock is owned by private persons is a private corporation, although it is erected by the government and its objects and operations partake of a public nature. The same doctrine may be affirmed of insurance, canal, bridge and turnpike companies. In all these cases, the uses may, in a certain sense, be called public, but the corporations are private -- as much so, indeed, as if the franchises were vested in a single person.

This reasoning applies in its full force to eleemosynary corporations. An hospital founded by a private benefactor is, in point of law, a private corporation although dedicated by its charter to general charity. So a College, founded and endowed in the same manner, although, being for the promotion of learning and piety, it may extend its charity to scholars from every class in the community, and thus acquire the character of a public institution. This is the unequivocal doctrine of the authorities, and cannot be [p*670] shaken but by undermining the most solid foundations of the common law. Philips v. Bury, 1 Lord Raym. 5, 9, S. C. 2 T.R. 346.

It was, indeed, supposed at the argument that if the uses of an eleemosynary corporation be for general charity, this alone would constitute it a public corporation. But the law is certainly not so. To be sure, in a certain sense, every charity which is extensive in its reach may be called a public charity, in contradistinction to a charity embracing but a few definite objects. In this sense, the language was unquestionably used by Lord Hardwicke in the case cited at the argument, Attorney General v. Pearce, 2 Atk. 87, 1 Bac.Abr. tit. Charitable Uses, E, 589; and in this sense, a private corporation may well enough be denominated a public charity. So it would be if the endowment, instead of being vested in a corporation, were assigned to a private trustee; yet, in such a case, no one would imagine that the trust ceased to be private, or the funds became public property. That the mere act of incorporation will not change the charity from a private to a public one is most distinctly asserted in the authorities. Lord Hardwicke, in the case already alluded to, says

the charter of the Crown cannot make a charity more or less public, but only more permanent than it would otherwise be; but it is the extensiveness which will constitute it a public one. A devise to the poor of the parish is a public charity. Where testators leave it to the discretion of a trustee to choose out the objects, though each particular [p*671] object may be said to be private, yet, in the extensiveness of the benefit accruing from them, they may properly be called public charities. A sum to be disposed of by A.B. and his executors, at their discretion, among poor housekeepers, is of this kind.

The charity, then, may, in this sense, be public although it may be administered by private trustees; and for the same reason, it may thus be public though administered by a private corporation. The fact, then that the charity is public affords no proof that the corporation is also public; and consequently, the argument, so far as it is built on this foundation, falls to the ground. If, indeed, the argument were correct, it would follow that almost every hospital and college would be a public corporation, a doctrine utterly irreconcilable with the whole current of decisions since the time of Lord Coke. Case of Sutton's Hospital, 10 Co. 23.

When, then, the argument assumes that, because the charity is public, the corporation is public, it manifestly confounds the popular with the strictly legal sense of the terms. And if it stopped here, it would not be very material to correct the error. But it is on this foundation that a superstructure is erected which is to compel a surrender of the cause. When the corporation is said, at the bar, to be public, it is not merely meant that the whole community may be the proper objects of the bounty, but that the government have the sole right, as trustees of the public interests, to regulate, control and direct the corporation and its funds and its franchises at its own good will and pleasure. Now such [p*672] an authority does not exist in the government except where the corporation, is, in the strictest sense, public -- that is, where its whole interests and franchises are the exclusive property and domain of the government itself. If it had been otherwise, courts of law would have been spared many laborious adjudications in respect to eleemosynary corporations, and the visitatorial powers over them, from the time of Lord Holt down to the present day. Rex v. Bury, 1 Lord Raym. 5; S. C. Comb. 265; Holt 715; 1 Show. 360; 4 Mod. 106; Skin. 447; and Lord Holt's opinion from his own MS., in 2 T.R. 346. Nay, more, private Trustees for charitable purposes would have been liable to have the property confided to their care taken away from them, without any assent or default on their part, and the administration submitted not to the control of law and equity, but to the arbitrary discretion of the government. Yet who ever thought before that the munificent gifts of private donors for general charity became instantaneously the property of the government, and that the Trustees appointed by the donors, whether corporate or unincorporated, might be compelled to yield up their rights to whomsoever the government might appoint to administer them? If we were to establish such a principle, it would extinguish all future eleemosynary endowments, and we should find as little of public policy as we now find of law to sustain it.

An eleemosynary corporation, then, upon a private foundation, being a private corporation, it is next to be considered what is deemed a foundation, [p*673] and who is the founder. This cannot be stated with more brevity and exactness than in the language of the elegant commentator upon the laws of England:

The founder of all corporations [says Sir William Blackstone], in the strictest and original sense, is the King alone, for he only can incorporate a society, and in civil corporations, such as mayor, commonalty, &c., where there are no possessions or endowments given to the body, there is no other founder but the King; but in eleemosynary foundations, such as Colleges and hospitals, where there is an endowment of lands, the law distinguishes and makes two species of foundation, the one fundatio incipiens, or the incorporation, in which sense the King is the general founder of all Colleges and hospitals, the other fundatio perficiens, or the 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 [p*674] with admirable fulness and accuracy by Lord Holt in one of his most celebrated judgments. Phillips v. Bury, 1 Lord Raym. 5, S. C. 2 T.R. 346. And of common right, by the dotation, the founder and his heirs are the legal visitors, unless the founder has appointed and assigned another person to be visitor. For the founder may, if he please, at the time of the endowment, part with his visitatorial power, and the person to whom it is assigned will, in that case, possess it in exclusion of the founder's heirs. 1 Bl.Com. 482. This visitatorial power is therefore an hereditament founded in property, and valuable, in intendment of law, and stands upon the maxim that he who gives his property has a right to regulate it in future. It includes also the legal right of patronage, for as Lord Holt justly observes, "patronage and visitation are necessary consequents one upon another." No technical terms are necessary to assign or vest the visitatorial power; it is sufficient if, from the nature of the duties to be performed by particular persons under the charter it can be inferred that the founder meant to part with it in their favor; and he may divide it among various persons, or subject it to any modifications or control, by the fundamental statutes of the corporation. But where the appointment is given in general terms, the whole power vests in the appointee. Eden v. Foster, 2 P.Wms. 325; Attorney General v. Middleton, 2 Ves. 327; St. Johns College v. Todington, 1 Bl.Rep. 84., S. C. 2 Burr. 200; Attorney General v. Clare College, 3 Atk. 662; S. C. 1 Ves. 78. In the construction [p*675] of charters, too, it is a general rule that if the objects of the charity are incorporated, as for instance the master and fellows of a college or the master and poor of a hospital, the visitatorial power, in the absence of any special appointment, silently vests in the founder and his heirs. But where Trustees or Governors are incorporated to manage the charity, the visitatorial power is deemed to belong to them in their corporate character. Philips v. Bury, 1 Lord Raym. 5; S. C. 2 T.R. 346; Green v. Rutherforth, 1 Ves. 472; Attorney General v. Middleton, 2 Ves. 327; Case of Sutton Hospital, 10 Co. 23, 31.

When a private eleemosynary corporation is thus created by the charter of the Crown, it is subject to no other control on the part of the Crown than what is expressly or implicitly reserved by the charter itself. Unless a power be reserved for this purpose, the Crown cannot, in virtue of its prerogative, without the consent of the corporation, alter or amend the charter or divest the corporation of any of its franchises, or add to them, or add to, or diminish the number of the trustees, or remove any of the members, or change or control the administration of the charity, or compel the corporation to receive a new charter. This is the uniform language of the authorities, and forms one of the most stubborn and well settled doctrines of the common law. See Rex v. Pasmore, 3 T.R. 199, and the cases there cited.

But an eleemosynary, like every other corporation, is subject to the general law of the land. It may forfeit its corporate franchises by misuser or nonuser [p*676] of them. I t is subject to the controlling authority of its legal visitor, who, unless restrained by the terms of the charter, may amend and repeal its statutes, remove its officers, correct abuses, and generally superintend the management of the trusts. Where, indeed, the visitatorial power is vested in the Trustees of the charity in virtue of their incorporation, there can be no amotion of them from their corporate capacity. But they are not, therefore, placed beyond the reach of the law. As managers of the revenues of the corporation, they are subject to the general superintending power of the court of chancery, not as itself possessing a visitatorial power, or a right to control the charity, but as possessing a general jurisdiction, in all cases of an abuse of trust, to redress grievances and suppress frauds. [n1] And where a corporation is a mere trustee of a charity, a court of equity will go yet further, and though it cannot appoint or remove a corporator, it will, yet, in a case of [p*677] gross fraud or abuse of trust, take away the trust from the corporation and vest it in other hands. Mayor, &c. of Coventry v. Attorney General, 7 Bro.Parl.Cases 235; Attorney General v. Earl of Clarendon, 17 Ves. 491, 499.

Thus much it has been thought proper to premise respecting the nature, rights, and duties of eleemosynary corporations growing out of the common law. We may now proceed to an examination of the original charter of Dartmouth College.

It begins by a recital, among other things that the Rev. Eleazer Wheelock, of Lebanon, in Connecticut, about the year 1754, at his own expense, on his own estate, set on foot an Indian charity school, and, by the assistance of other persons, educated a number of the children of the Indians, and employed them as missionaries and schoolmasters among the savage tribes; that the design became reputable among the Indians, so that more desired the education of their children at the school than the contributions in the American colonies would support; that the said Wheelock thought it expedient to endeavor to procure contributions in England, and requested the Rev. Nathaniel Whitaker to go to England as his attorney to solicit contribution, and also solicited the Earl of Dartmouth and others to receive the contributions and become trustees thereof, which they cheerfully agreed to; and he constituted them trustees accordingly, by a power of attorney, and they testified their acceptance by a sealed instrument, that the said Wheelock also authorized the Trustees to fix and determine [p*678] upon the place for the said school, and, to enable them understandingly to give the preference, laid before them the several offers of the governments in America inviting the settlement of the school among them; that a large number of the proprietors of lands in the western parts of New Hampshire, to aid the design, and considering that the same school might be enlarged and improved to promote learning among the English, and to supply the churches there with an orthodox ministry, promised large tracts of land for the uses aforesaid, provided the school should be settled in the western part of said province; that the trustees thereupon gave a preference to the western part of said province, lying on Connecticut River, as a situation most convenient for said school; that the said Wheelock further represented the necessity for a legal incorporation, in order to the safety and wellbeing of said seminary, and its being capable of the tenure and disposal of lands and bequests for the use of the same; that in the infancy of said institution, certain gentlemen whom he had already nominated in his last will (which he had transmitted to the Trustees in England) to be Trustees in America should be the corporation now proposed, and lastly that there were already large contributions for said school in the hands of the Trustees in England, and further success might be expected, for which reason the said Wheelock desired they might be invested with all that power therein which could consist with their distance from the same. The charter, after these recitals, declares that the King, considering the premises, and being willing to [p*679] encourage the charitable design, and that the best means of education might be established in New Hampshire for the benefit thereof, does, of his special grace, certain knowledge and mere motion, ordain and grant that there be a College erected in New Hampshire by the name of Dartmouth College, for the education and instruction of youth of the Indian tribes and also of English youth and others; that the Trustees of said College shall be a corporation forever, by the name of the Trustees of Dartmouth College; that the then Governor of New Hampshire, the said Wheelock, and ten other persons, specially named in the charter, shall be Trustees of the said College, and that the whole number of Trustees shall forever thereafter consist of twelve, and no more, that the said corporation shall have power to sue and to be sued by their corporate name, and to acquire and hold for the use of the said Dartmouth College, lands, tenements, hereditaments and franchises; to receive, purchase and build any houses for the use of said College, in such town in the western part of New Hampshire, as the Trustees, or a major part of them, shall, by a written instrument, agree on, and to receive, accept and dispose of any lands, goods, chattels, rents, gifts, legacies, &c., not exceeding the yearly value of six thousand pounds. It further declares that the Trustees, or a major part of them, regularly convened (for which purpose seven shall form a quorum), shall have authority to appoint and remove the professors, tutors and other officers of the College, and to pay them, and also such missionaries and schoolmasters as shall be employed by the Trustees for instructing the Indians, salaries and [p*680] allowances, as well as other corporate expenses, out of the corporate funds. It further declares that, the said Trustees, as often as one or more of the Trustees shall die, or by removal or otherwise, shall, according to their judgment, become unfit or incapable to serve the interests of the College, shall have power to elect and appoint other Trustees in their stead, so that when the whole number shall be complete of twelve Trustees, eight shall be resident freeholders of New Hampshire, and seven of the whole number laymen. It further declares that the Trustees shall have power, from time to time, to make and establish rules, ordinances and laws for the government of the College not repugnant to the laws of the land, and to confer collegiate degrees. It further appoints the said Wheelock, whom it denominates "the founder of the College," to be President of the College, with authority to appoint his successor, who shall be President, until disapproved of by the Trustees. It then concludes with a direction that it shall be the duty of the President to transmit to the Trustees in England, so long as they should perpetuate their Board, and as there should be Indian natives remaining to be proper objects of the bounty, an annual account of all the disbursements from the donations in England, and of the general plans and prosperity of the institution.

Such are the most material clauses of the charter. It is observable, in the first place, that no endowment whatever is given by the Crown, and no power is reserved to the Crown or government in any manner to alter, amend or control the charter. It is also apparent [p*681] from the very terms of the charter that Dr. Wheelock is recognised as the founder of the College, and that the charter is granted upon his application, and that the Trustees were in fact nominated by him. In the next place, it is apparent that the objects of the institution are purely charitable, for the distribution of the private contributions of private benefactors. The charity was, in the sense already explained, a public charity -- that is, for the general promotion of learning and piety -- but in this respect it was just as much public before as after the incorporation. The only effect of the charter was to give permanency to the design by enlarging the sphere of its action and granting a perpetuity of corporate powers and franchises, the better to secure the administration of the benevolent donations. As founder, too, Dr. Wheelock and his heirs would have been completely clothed with the visitatorial power; but the whole government and control, as well of the officers as of the revenues of the College, being with his consent assigned to the Trustees in then corporate character, the visitatorial power, which is included in this authority, rightfully devolved on the Trustees. As managers of the property and revenues of the corporation, they were amenable to the jurisdiction of the judicial tribunals of the State; but as visitors, their discretion was limited only by the charter, and liable to no supervision or control, at least unless it was fraudulently misapplied.

From this summary examination it follows that Dartmouth College was, under its original charter, a private eleemosynary corporation, endowed with [p*682] the usual privileges and franchises of such corporations, and among others, with a legal perpetuity, and was exclusively under the government and control of twelve Trustees, who were to be elected and appointed, from time to time by the existing Board as vacancies or removals should occur.

We are now led to the consideration of the first question in the cause -- whether this charter is a contract within the clause of the Constitution prohibiting the States from passing any law impairing the obligation of contracts. In the case of Fletcher v. Peck, 6 Cranch 87 , 136, this Court laid down its exposition of the word "contract" in this clause in the following manner:

A contract is a compact between two or more persons, and is either executory or executed. An executory contract is one in which a party binds himself to do or not to do a particular thing. A contract executed is one in which the object of the contract is performed, and this, says Blackstone, differs in nothing from a grant. A contract executed, as well as one that is executory, contains obligations binding on the parties. A grant, in its own nature, amounts to an extinguishment of the right of the grantor, and implies a contract not to reassert that right. A party is always estopped by his own grant.

This language is perfectly unambiguous, and was used in reference to a grant of land by the Governor of a State under a legislative act. It determines in the most unequivocal manner that the grant of a State is a contract, within the clause of [p*683] the Constitution now in question, and that it implies a contract not to reassume the rights granted; a fortiori the doctrine applies to a charter or grant from the King.

But it is objected that the charter of Dartmouth College is not a contract contemplated by the Constitution, because no valuable consideration passed to the King as an equivalent for the grant, it purporting to be granted ex mero motu, and further that no contracts merely voluntary are within the prohibitory clause. It must be admitted that mere executory contracts cannot be enforced at law unless there be a valuable consideration to sustain them, and the Constitution certainly did not mean to create any new obligations or give any new efficacy to nude pacts. But it must, on the other hand, be also admitted that the Constitution did intend to preserve all the obligatory force of contracts which they have by the general principles of law. Now when a contract has once passed, bona fide, into grant, neither the King nor any private person who may be the grantor can recall the grant of the property, although the conveyance may have been purely voluntary. A gift, completely executed, is irrevocable. The property conveyed by it becomes, as against the donor, the absolute property of the donee, and no subsequent change of intention of the donor can change the rights of the donee. 2 Bl.Com. 441, Jenk.Cent. 104. And a gift by the Crown of incorporeal hereditaments, such as corporate franchises, when executed, comes completely [p*684] within the principle, and is, in the strictest sense of the terms, a grant. 2 Bl.Com. 317, 346; Shep.Touch. ch. 12, p. 227. Was it ever imagined that land voluntarily granted to any person by a State was liable to be resumed at its own good pleasure? Such a pretension would, under any circumstances, be truly alarming, but in a country like ours, where thousands of land titles had their origin in gratuitous grants of the States, it would go far to shake the foundations of the best settled estates. And a grant of franchises is not, in point of principle, distinguishable from a grant of any other property. If, therefore, this charter were a pure donation, when the grant was complete and accepted by the grantees, it involved a contract that the grantees should hold, and the grantor should not reassume the grant, as much as if it had been founded on the most valuable consideration.

But it is not admitted that this charter was not granted for what the law deems a valuable consideration. For this purpose, it matters not how trifling the consideration may be -- a pepper-corn is as good as a thousand dollars. Nor is it necessary that the consideration should be a benefit to the grantor. It is sufficient if it import damage or loss, or forbearance of benefit, or any act done or to be done, on the part of the grantee. It is unnecessary to State cases; they are familiar to the mind of every lawyer. Pillans v. Van Mierop, per Yates, J., 3 Burr. 1663; Forth v. Stanton, 1 Saund. 211; Williams' note 2, and the cases there cited.

With these principles in view, let us now examine [p*685] the terms of this charter. It purports, indeed, on its face, to be granted "of the special grace, certain knowledge and mere motion" of the King, but these words were introduced for a very different purpose from that now contended for. It is a general rule of the common law (the reverse of that applied in ordinary cases) that a grant of the King, at the suit of the grantee, is to be construed most beneficially for the King and most strictly against the grantee. Wherefore it is usual to insert in the King's grants a clause that they are made not at the suit of the grantee, but of the special grace, certain knowledge and mere motion of the King, and then they receive a more liberal construction. This is the true object of the clause in question, as we are informed by the most accurate authorities. 2 Bl.Com. 347; Finch's Law 100; 10 Rep. 112; 1 Shep.Abridg. 136; Bull.N.P. 136. But the charter also, on its face, purports to be granted in consideration of the premises in the introductory recitals.

Now among these recitals it appears that Dr. Wheelock had founded a charity school at his own expense, on his own estate; that divers contributions had been made in the colonies by others for its support; that new contributions had been made, and were making, in England, for this purpose, and were in the hands of Trustees appointed by Dr. Wheelock to act in his behalf; that Dr. Wheelock had consented to have the school established at such other place as the Trustees should select; that offers had been made by several of the governments in America, inviting the [p*686] establishment of the school among them; that offers of land had also been made by divers proprietors of lands in the western parts of New Hampshire if the school should be established there; that the Trustees had finally consented to establish it in New Hampshire; and that Dr. Wheelock represented that, to effectuate the purposes of all parties, an incorporation was necessary. Can it be truly said that these recitals contain no legal consideration of benefit to the Crown, or of forbearance of benefit on the other side? Is there not an implied contract by Dr. Wheelock, if a charter is granted, that the school shall be removed from his estate to New Hampshire?; and that he will relinquish all his control over the funds collected and to be collected in England under his auspices and subject to his authority?; that he will yield up the management of his charity school to the Trustees of the College?; that he will relinquish all the offers made by other American governments and devote his patronage to this institution? It will scarcely be denied that he gave up the right any longer to maintain the charity school already established on his own estate, and that the funds collected for its use and subject to his management were yielded up by him as an endowment of the College. The very language of the charter supposes him to be the legal owner of the funds of the charity school, and, in virtue of this endowment, declares him the founder of the College. It matters not whether the funds were great or small; Dr. Wheelock had procured them by his own influence, and they were under his control, to be applied to the [p*687] support of his charity school, and when he relinquished this control, he relinquished a right founded in property acquired by his labors. Besides, Dr. Wheelock impliedly agreed to devote his future services to the College, when erected, by becoming President thereof at a period when sacrifices must necessarily be made to accomplish the great design in view. If, indeed, a pepper-corn be, in the eye of the law, of sufficient value to found a contract, as upon a valuable consideration, are these implied agreements, and these relinquishments of right and benefit, to be deemed wholly worthless? It has never been doubted that an agreement not to exercise a trade in a particular place was a sufficient consideration to sustain a contract for the payment of money; a fortiori, the relinquishment of property which a person holds, or controls the use of, as a trust, is a sufficient consideration, for it is parting with a legal right. Even a right of patronage (jus patronatus) is of great value in intendment of law. Nobody doubts that an advowson is a valuable hereditament, and yet, in fact, it is but a mere trust, or right of nomination to a benefice, which cannot be legally sold to the intended incumbent. 2 Bl.Com. 22; Christian's note.

In respect to Dr. Wheelock, then, if a consideration be necessary to support the charter as a contract, it is to be found in the implied stipulations on his part in the charter itself. He relinquished valuable rights and undertook a laborious office in consideration of the grant of the incorporation. [p*688]

This is not all. A charter may be granted upon an executory, as well as an executed or present, consideration. When it is granted to persons who have not made application for it, until their acceptance thereof, the grant is yet in fieri. Upon the acceptance, there is an implied contract on the part of the grantees, in consideration of the charter, that they will perform the duties, and exercise the authorities conferred by it. This was the doctrine asserted by the late learned Mr. Justice Buller in a modern case. Rex v. Pasmore, 3 T.R. 199, 239, 246. He there said,

I do not know how to reason on this point better than in the manner urged by one of the relator's counsel, who considered the grant of incorporation to be a compact between the Crown and a certain number of the subjects, the latter of whom undertake, in consideration of the privileges which are bestowed, to exert themselves for the good government of the place,

(i.e., the place incorporated). It will not be pretended that if a charter be granted for a bank, and the stockholders pay in their own funds, the charter is to be deemed a grant without consideration, and therefore, revocable at the pleasure of the grantor. Yet here, the funds are to be managed and the services performed exclusively for the use and benefit of the stockholders themselves. And where the grantees are mere trustees to perform services without reward, exclusively for the benefit of others, for public charity, can it be reasonably argued that these services are less valuable to the government than if performed for the private emolument of [p*689] the Trustees themselves? In respect then to the Trustees also, there was a valuable consideration for the charter, the consideration of services agreed to be rendered by them in execution of a charity, from which they could receive no private remuneration.

There is yet another view of this part of the case which deserves the most weighty consideration. The corporation was expressly created for the purpose of distributing in perpetuity the charitable donations of private benefactors. By the terms of the charter, the Trustees, and their successors, in their corporate capacity, were to receive, hold and exclusively manage all the funds so contributed. The Crown, then, upon the face of the charter, pledged its faith that the donations of private benefactors should be perpetually devoted to their original purposes, without any interference on its own part, and should be forever administered by the Trustees of the corporation, unless its corporate franchises should be taken away by due process of law. From the very nature of the case, therefore, there was an implied contract on the part of the Crown with every benefactor that, if he would give his money, it should be deemed a charity protected by the charter, and be administered by the corporation according to the general law of the land. As soon, then, as a donation was made to the corporation, there was an implied contract, springing up and founded on a valuable consideration that the Crown would not revoke or alter the charter or change its administration without the consent of the corporation. There was also an implied contract between the corporation itself and every benefactor, [p*690] upon a like consideration, that it would administer his bounty according to the terms and for the objects stipulated in the charter.

In every view of the case, if a consideration were necessary (which I utterly deny) to make the charter a valid contract, a valuable consideration did exist as to the founder, the Trustees, and the benefactors. And upon the soundest legal principles, the charter may be properly deemed, according to the various aspects in which it is viewed, as a several contract with each of these parties in virtue of the foundation or the endowment of the College, or the acceptance of the charter, or the donations to the charity.

And here we might pause; but there is yet remaining another view of the subject which cannot consistently be passed over without notice. It seems to be assumed by the argument of the defendant's counsel that there is no contract whatsoever, in virtue of the charter, between the Crown and the corporation itself. But it deserves consideration whether this assumption can be sustained upon a solid foundation.

If this had been a new charter, granted to an existing corporation, or a grant of lands to an existing corporation, there could not have been a doubt that the grant would have been an executed contract with the corporation -- as much so as if it had been to any private person. But it is supposed that as this corporation was not then in existence, but was created, and its franchises bestowed, uno flatu; the charter cannot be construed a contract, because there was no person in rerum natura with whom it might be made. Is this, however, a just and legal view of the [p*691] subject? If the corporation had no existence so as to become a contracting party, neither had it for the purpose of receiving a grant of the franchises. The truth is that there may be a priority of operation of things in the same grant, and the law distinguishes and gives such priority, wherever it is necessary to effectuate the objects of the grant. Case of Sutton's Hospital, 10 Co. 23; Buckland v. Fowcher, cited 10 Co. 27, 28, and recognised in Attorney General v. Bowyer, 3 Ves.Jun. 714, 726, 727, S. P. Highmore on Mortm. 200, &c. From the nature of things, the artificial person called a corporation must be created before it can be capable of taking anything. When, therefore, a charter is granted and it brings the corporation into existence without any act of the natural persons who compose it, and gives such corporation any privileges, franchises or property, the law deems the corporation to be first brought into existence, and then clothes it with the granted liberties and property. When, on the other hand, the corporation is to be brought into existence by some future acts of the corporators, the franchises remain in abeyance until such acts are done, and, when the corporation is brought into life, the franchises instantaneously attach to it. There may be, in intendment of law, a priority of time, even in an instant, for this purpose. And if the corporation have an existence before the grant of its other franchises attaches, what more difficulty is there in deeming the grant of these franchises a contract with it than if granted by another instrument at a subsequent period?

It behooves those also who hold that a grant to a corporation not then in existence is incapable [p*692] of being deemed a contract on that account to consider whether they do not, at the same time, establish that the grant itself is a nullity for precisely the same reason. Yet such a doctrine would strike us all, as pregnant with absurdity, since it would prove that an act of incorporation could never confer any authorities or rights or property on the corporation it created. It may be admitted that two parties are necessary to form a perfect contract, but it is denied that it is necessary that the assent of both parties must be at the same time. If the legislature were voluntarily to grant land in fee to the first child of A. to be hereafter born, as soon as such child should be born, the estate would vest in it. Would it be contended that such grant, when it took effect, was revocable, and not an executed contract, upon the acceptance of the estate? The same question might be asked in a case of a gratuitous grant by the King or the legislature to A. for life, and afterwards, to the heirs of B., who is then living. Take the case of a bank, incorporated for a limited period upon the express condition that it shall pay out of its corporate funds a certain sum as the consideration for the charter, and, after the corporation is organized, a payment duly made of the sum out of the corporate funds; will it be contended that there is not a subsisting contract between the government and the corporation, by the matters thus arising ex post facto, that the charter shall not be revoked, during the stipulated period? Suppose, an act declaring that all persons, who should thereafter pay into the public treasury a stipulated sum should be tenants in common of certain [p*693] lands belonging to the State, in certain proportions; if a person, afterwards born, pays the stipulated sum into the treasury, is it less a contract with him than it would be with a person in esse at the time the act passed? We must admit that there may be future springing contracts in respect to persons not now in esse or we shall involve ourselves in inextricable difficulties. And if there may be, in respect to natural persons, why not also in respect to artificial persons, created by the law for the very purpose of being clothed with corporate powers? I am unable to distinguish between the case of a grant of land or of franchises to an existing corporation and a like grant to a corporation brought into life for the very purpose of receiving the grant. As soon as it is in esse and the franchises and property become vested and executed in it, the grant is just as much an executed contract as if its prior existence had been established for a century.

Supposing, however that in either of the views which have been suggested the charter of Dartmouth College is to be deemed a contract; we are yet met with several objections of another nature. It is, in the first place, contended that it is not a contract, within the prohibitory clause of the Constitution, because that clause was never intended to apply to mere contracts of civil institution, such as the contract of marriage, or to grants of power to State officers, or to contracts relative to their offices, or to grants of trust to be exercised for purposes merely public, where the grantees take no beneficial interest.

It is admitted that the State legislatures have [p*694] power to enlarge, repeal and limit the authorities of public officers, in their official capacities, in all cases where the constitutions of the States respectively do not prohibit them; and this, among others, for the very reason that there is no express or implied contract that they shall always, during their continuance in office, exercise such authorities. They are to exercise them only during the good pleasure of the legislature. But when the legislature makes a contract with a public officer, as in the case of a stipulated salary for his services during a limited period, this, during the limited period, is just as much a contract within the purview of the constitutional prohibition as a like contract would be between two private citizens. Will it be contended that the legislature of a State can diminish the salary of a judge holding his office during good behavior? Such an authority has never yet been asserted, to our knowledge. It may also be admitted that corporations for mere public government, such as towns, cities and counties, may in many respects be subject to legislative control. But it will hardly be contended that, even in respect to such corporations, the legislative power is so transcendent that it may, at its will, take away the private property of the corporation or change the uses of its private funds, acquired under the public faith. Can the legislature confiscate to its own use the private funds which a municipal corporation holds under its charter without any default or consent of the corporators? If a municipal corporation be capable of holding devises and legacies to charitable uses (as may municipal corporations [p*695] are), does the legislature, under our forms of limited government, possess the authority to seize upon those funds and appropriate them to other uses at its own arbitrary pleasure, against the will of the donors and donees? From the very nature of our governments, the public faith is pledged the other way, and that pledge constitutes a valid compact, and that compact is subject only to judicial inquiry, construction and abrogation. This Court have already had occasion, in other causes, to express their opinion on this subject, and there is not the slightest inclination to retract it. Terrett v. Taylor, 9 Cranch 43; Town of Pawlet v. Clark, 9 Cranch 292.

As to the case of the contract of marriage, which the argument supposes not to be within the reach of the prohibitory clause, because it is matter of civil institution, I profess not to feel the weight of the reason assigned for the exception. In a legal sense, all contracts recognised as valid in any country may be properly said to be matters of civil institution, since they obtain their obligation and construction jure loci contractus. Titles to land constituting part of the public domain, acquired by grants under the provisions of existing laws by private persons, are certainly contracts of civil institution. Yet no one ever supposed that, when acquired bona fide, they were not beyond the reach of legislative revocation. And so, certainly, is the established doctrine of this Court. Terret v. Taylor, 9 Cranch 43; Town of Pawlet v. Clark, 9 Cranch 292. A general law regulating divorces from the contract of marriage, like a law regulating [p*696] remedies in other cases of breaches of contracts, is not necessarily a law impairing the obligation of such a contract. Holmes v. Lansing, 3 Johns.Cas. 73. It may be the only effectual mode of enforcing the obligations of the contract on both sides. A law punishing a breach of a contract, by imposing a forfeiture of the rights acquired under it, or dissolving it because the mutual obligations were no longer observed, is in no correct sense a law impairing the obligations of the contract. Could a law, compelling a specific performance, by giving a new remedy, be justly deemed an excess of legislative power? Thus far the contract of marriage has been considered with reference to general laws regulating divorces upon breaches of that contract. But if the argument means to assert that the legislative power to dissolve such a contract, without any breach on either side, against the wishes of the parties, and without any judicial inquiry to ascertain a breach, I certainly am not prepared to admit such a power, or that its exercise would not entrench upon the prohibition of the Constitution. If, under the faith of existing laws, a contract of marriage be duly solemnized, or a marriage settlement be made (and marriage is always in law a valuable consideration for a contract), it is not easy to perceive why a dissolution of its obligations, without any default or assent of the parties, may not as well fall within the prohibition as any other contract for a valuable consideration. A man has just as good a right to his wife as to the property acquired under a marriage [p*697] contract. He has a legal right to her society and her fortune, and to divest such right, without his default and against his will, would be as flagrant a violation of the principles of justice as the confiscation of his own estate. I leave this case, however, to be settled when it shall arise. I have gone into it because it was urged with great earnestness upon us, and required a reply. It is sufficient now to say that, as at present advised, the argument derived from this source does not press my mind with any new and insurmountable difficulty.

In respect also to grants and contracts, it would be far too narrow a construction of the Constitution to limit the prohibitory clause to such only where the parties take for their own private benefit. A grant to a private Trustee, for the benefit of a particular cestui que trust or for any special, private or public charity cannot be the less a contract because the Trustee takes nothing for his own benefit. A grant of the next presentation to a church is still a contract, although it limit the grantee to a mere right of nomination or patronage. 2 Bl.Com. 21. The fallacy of the argument consists in assuming the very ground in controversy. It is not admitted that a contract with a Trustee is, in its own nature, revocable, whether it be for special or general purposes, for public charity or particular beneficence. A private donation vested in a trustee for objects of a general nature does not thereby become a public trust which the government may, at its pleasure, take from the Trustee, and administer [p*698] in its own way. The truth is that the government has no power to revoke a grant, even of its own funds, when given to a private person, or a corporation, for special uses It cannot recall its own endowments, granted to any hospital or College, or city or town, for the use of such corporations. The only authority remaining to the government is judicial, to ascertain the validity of the grant, to enforce its proper uses, to suppress frauds, and, if the uses are charitable, to secure their regular administration, through the means of equitable tribunals, in cases where there would otherwise be a failure of justice.

Another objection growing out of and connected with that which we have been considering is that no grants are within the constitutional prohibition except such as respect property in the strict sense of the term, that is to say, beneficial interests in lands, tenements and hereditaments, &c., which may be sold by the grantees for their own benefit, and that grants of franchises, immunities and authorities not valuable to the parties, as property, are excluded from its purview. No authority has been cited to sustain this distinction, and no reason is perceived to justify its adoption. There are many rights, franchises and authorities which are valuable in contemplation of law where no beneficial interest can accrue to the possessor. A grant of the next presentation to a church, limited to the grantee alone, has been already mentioned. A power of appointment, reserved in a marriage settlement, either to a party or a stranger, to appoint uses in favor of third persons, without compensation, is another instance. [p*699] A grant of lands to a Trustee, to raise portions or pay debts is, in law, a valuable grant, and conveys a legal estate. Even a power given by will to executors to sell an estate for payment of debts is, by the better opinions and authority, coupled with a trust, and capable of survivorship. [n2] Many dignities and offices existing at common law are merely honorary, and without profit, and sometimes are onerous. Yet a grant of them has never been supposed the less a contract on that account. In respect to franchises, whether corporate or not, which include a pernancy of profits, such as a right of fishery, or to hold a ferry, a market or a fair, or to erect a turnpike, bank or bridge, there is no pretence to say that grants of them are not within the Constitution. Yet they may, in point of fact, be of no exchangeable value to the owners. They may be worthless in the market. The truth, however, is that all incorporeal hereditaments, whether they be immunities, dignities, offices or franchises, or other rights, are deemed valuable in law. The owners have a legal estate and property in them, and legal remedies to support and recover them, in case of any injury, obstruction or disseisin of them. Whenever they are the subjects of a contract or grant, they are just as much within the reach of the Constitution as any other grant. [p*700] Nor is there any solid reason why a contract for the exercise of a mere authority should not be just as much guarded as a contract for the use and dominion of property. Mere naked powers which are to be exercised for the exclusive benefit of the grantor are revocable by him for that very reason. But it is otherwise where a power is to be exercised in aid of a right vested in the grantee. We all know that a power of attorney, forming a part of a security upon the assignment of a chose in action, is not revocable by the grantor. For it then sounds in contract, and is coupled with an interest. Walsh v. Whitcomb, 2 Esp. 565; Bergen v. Bennett, 1 Caines' Cases in Error 1, 15; Raymond v. Squire, 11 Johns. 47. So, if an estate be conveyed in trust for the grantor, the estate is irrevocable in the grantee, although he can take no beneficial interest for himself. Many of the best settled estates stand upon conveyances of this nature, and there can be no doubt that such grants are contracts within the prohibition in question.

In respect to corporate franchises, they are, properly speaking, legal estates, vested in the corporation itself, as soon as it is in esse. They are not mere naked powers granted to the corporation, but powers coupled with an interest. The property of the corporation rests upon the possession of its franchises, and whatever may be thought as to the corporators, it cannot be denied that the corporation itself has a legal interest in them. It may sue and be sued for them. Nay, more, this very right is one of its ordinary [p*701] franchises. "It is likewise a franchise," says Mr. Justice Blackstone,

for a number of persons to be incorporated and subsist as a body politic, with power to maintain perpetual succession, and do other corporate acts, and each individual member of such corporation is also said to have a franchise or freedom.

2 Bl.Com. 37; 1 Kyd on Corp. 14, 16. In order to get rid of the legal difficulty of these franchises being considered as valuable hereditaments or property, the counsel for the defendant are driven to contend that the corporators or Trustees are mere agents of the corporation, in whom no beneficial interest subsists, and so nothing but a naked power is touched by removing them from the trust, and then to hold the corporation itself a mere ideal being, capable indeed of holding property or franchises, but having no interest in them which can be the subject of contract. Neither of these positions is admissible. The former has been already sufficiently considered, and the latter may be disposed of in a few words. The corporators are not mere agents, but have vested rights in their character as corporators. The right to be a freeman of a corporation is a valuable temporal right. It is a right of voting and acting in the corporate concerns, which the law recognises and enforces, and for a violation of which it provides a remedy. It is founded on the same basis as the right of voting in public elections; it is as sacred a right, and whatever might have been the prevalence of former doubts, since the time of Lord Holt, such a right has always been deemed a valuable franchise or privilege. Ashby v. White, 2 Lord Raym. 938; 1 Kyd on Corp. 16. [p*702]

This reasoning, which has been thus far urged applies with full force to the case of Dartmouth College. The franchises granted by the charter were vested in the Trustees, in their corporate character. The lands and other property, subsequently acquired, were held by them in the same manner. They were the private demesnes of the corporation, held by it not, as the argument supposes, for the use and benefit of the people of New Hampshire, but, as the charter itself declares, "for the use of Dartmouth College." There were not, and in the nature of things, could not be, any other cestui que use entitled to claim those funds. They were, indeed, to be devoted to the promotion of piety and learning, not at large, but in that College and the establishments connected with it; and the mode in which the charity was to be applied, and the objects of it, were left solely to the Trustees, who were the legal Governors and administrators of it. No particular person in New Hampshire possessed a vested right in the bounty, nor could he force himself upon the Trustees as a proper object. The legislature itself could not deprive the Trustees of the corporate funds, nor annul their discretion in the application of them, nor distribute them among its its own favorites. Could the Legislature of New Hampshire have seized the land given by the State of Vermont to the corporation and appropriated it to uses distinct from those intended by the charity, against the will of the Trustees? This question cannot be answered in the affirmative until it is established that the legislature may lawfully take the property of A. and give it to B., and if it [p*703] could not take away or restrain the corporate funds, upon what pretence can it take away or restrain the corporate franchises? Without the franchises, the funds could not be used for corporate purposes, but without the funds, the possession of the franchises might still be of inestimable value to the College, and to the cause of religion and learning.

Thus far, the rights of the corporation itself in respect to its property and franchises have been more immediately considered. But there are other rights and privileges, belonging to the Trustees collectively and severally, which are deserving of notice. They are intrusted with the exclusive power to manage the funds, to choose the officers, and to regulate the corporate concerns according to their own discretion. The jus patronatus is vested in them. The visitatorial power, in its most enlarged extent, also belongs to them. When this power devolves upon the founder of a charity, it is an hereditament, descendible in perpetuity to his heirs, and in default of heirs, it escheats to the government. Rex v. St. Catherine's Hall, 4 T.R. 233. It is a valuable right, founded in property, as much so as the right of patronage in any other case. It is a right which partakes of a judicial nature. May not the founder as justly contract for the possession of this right, in return for his endowment, as for any other equivalent? and if, instead of holding it as an hereditament, he assigns it in perpetuity to the Trustees of the corporation, is it less a valuable hereditament in their hands? The right is not merely a collective right in all the Trustees, [p*704] each of them also has a franchise in it. Lord Holt says,

it is agreeable to reason and the rules of law that a franchise should be vested in the corporation aggregate, and yet the benefit redound to the particular members and be enjoyed by them in their private capacities. Where the privilege of election is used by particular persons, it is a particular right vested in each particular man.

Ashby v. White, 2 Lord Raym. 938, 952; Attorney General v. Dixie, 13 Ves. 519. Each of the Trustees had a right to vote in all elections. If obstructed in the exercise of it, the law furnished him with an adequate recompense in damages. If ousted unlawfully from his office, the law would, by a mandamus, compel a restoration.

It is attempted, however, to establish that the Trustees have no interest in the corporate franchises, because it is said that they may be witnesses in a suit brought against the corporation. The case cited at the bar certainly goes the length of asserting that, in a suit brought against a charitable corporation for a recompence for services performed for the corporation, the Governors, constituting the corporation (but whether intrusted with its funds or not by the act of incorporation does not appear), are competent witnesses against the plaintiff. Weller v. Governor of the Foundling Hospital, 1 Peake's N.P.Rep. 153. But assuming this case to have been rightly decided (as to which, upon the authorities, there may be room to doubt), the corporators [p*705] being technically parties to the record, Attorney General v. City of London, 3 Bro.Ch.C. 171; S. C. 1 Ves.Jun. 243; Burton v. Hinde, 5 T.R. 174, Nason v. Thatcher, 7 Mass.Rep. 398; Phillips on Evid. 42, 52, 57 and notes; 1 Kyd on Corp. 304, &c.; Highmore on Mortm. 514, it does not establish that, in a suit for the corporate property vested in the Trustees in their corporate capacity, the Trustees are competent witnesses. At all events, it does not establish that, in a suit for the corporate franchises to be exercised by the Trustees, or to enforce their visitatorial power, the Trustees would be competent witnesses. On a mandamus to restore a Trustee to his corporate or visitatorial power, it will not be contended that the Trustee is himself a competent witness to establish his own rights or the corporate rights. Yet why not, if the law deems that a Trustee has no interest in the franchise? The test of interest assumed in the argument proves nothing in this case. It is not enough to establish that the Trustees are sometimes competent witnesses; it is necessary to show that they are always so in respect to the corporate franchises and their own. It will not be pretended that, in a suit for damages for obstruction in the exercise of his official powers, a Trustee is a disinterested witness. Such an obstruction is not a damnum absque injuria. Each Trustee has a vested right, and legal interest, in his office, and it cannot be divested but by due course of law. The illustration, therefore, lends no new force to the argument, for it does not establish that, when their own rights [p*706] are in controversy, the Trustees have no legal interest in their offices.

The principal objections having been thus answered, satisfactorily, at least, to my own mind, it remains only to declare that my opinion, after the most mature deliberation, is that the charter of Dartmouth College, granted in 1969, is a contract within the purview of the constitutional prohibition.

I might now proceed to the discussion of the second question, but it is necessary previously to dispose of a doctrine which has been very seriously urged at the bar, viz., that the charter of Dartmouth College was dissolved at the Revolution, and is therefore a mere nullity. A case before Lord Thurlow has been cited in support of this doctrine. Attorney General v. City of London, 3 Bro.Ch.C. 171; S. C. 1 Ves.Jun. 243. The principal question in that case was whether the corporation of William & Mary College, in Virginia (which had received its charter from King William and Queen Mary) should still be permitted to administer the charity under Mr. Boyle's will, no interest having passed to the College under the will, but it acting as an agent or trustee under a decree in chancery, or whether a new scheme for the administration of the charity should be laid before the Court. Lord Thurlow directed a new scheme because the College, belonging to an independent government, was no longer within the reach of the Court. And he very unnecessarily added that he could not now consider the College as a corporation, or, as another report, 1 Ves.Jun. 243, states, [p*707] that he could not take notice of it, as a corporation, it not having proved its existence, as a corporation, at all. If, by this, Lord Thurlow meant to declare that all charters acquired in America from the Crown, were destroyed by the Revolution, his doctrine is not law, and if it had been true, it would equally apply to all other grants from the Crown, which would be monstrous. It is a principle of the common law which has been recognised as well in this as in other Courts that the division of an empire works no forfeiture of previously vested rights of property. And this maxim is equally consonant with the common sense of mankind and the maxims of eternal justice. Terrett v. Taylor, 9 Cranch 43, 50; Kelly v. Harrison, 5 Johns.Cas. 29; Jackson v. Lunn, 3 Johns.Cas.. 109; Calvin's Case, 7 Co. 27. This objection therefore may be safely dismissed without further comment.

The remaining inquiry is whether the acts of the Legislature of New Hampshire now in question, or any of them, impair the obligations of the charter of Dartmouth College. The attempt certainly is to force upon the corporation a new charter, against the will of the corporators. Nothing seems better settled at the common law than the doctrine that the Crown cannot force upon a private corporation a new charter, or compel the old members to give up their own franchises, or to admit new members into the corporation. Rex v. Vice-Chancellor of Cambridge, 3 Burr. 1656; Rex v. Pasmore, 3 T.R. 240; 1 Kyd on Corp. 65; Rex v. Larwood, Comb. 316. Neither can the Crown compel a man [p*708] to become a member of such corporation against his will. Rex v. Dr. Askew, 4 Burr. 2200. As little has it been supposed that, under our limited governments, the legislature possessed such transcendent authority. On one occasion, a very able court held that the State legislature had no authority to compel a person to become a member of a mere private corporation, created for the promotion of a private enterprise, because every man had a right to refuse a grant. Ellis v. Marshall, 2 Mass.Rep. 269. On another occasion, the same learned Court declared that they were all satisfied that the rights legally vested in a corporation cannot be controlled or destroyed by any subsequent statute unless a power for that purpose be reserved to the legislature in the act of incorporation. Wales v. Stetson, 2 Mass.Rep. 143, 146. These principles are so consonant with justice, sound policy, and legal reasoning that it is difficult to resist the impression of their perfect correctness. The application of them, however, does not, from our limited authority, properly belong to the appellate jurisdiction of this Court in this case.

A very summary examination of the acts of New Hampshire will abundantly show that, in many material respects, they change the charter of Dartmouth College. The Act of the 27th of June, 1816, declares that the corporation known by the name of the Trustees of Dartmouth College shall be called the Trustees of Dartmouth University. That the whole number of Trustees shall be twenty-one, a majority [p*709] of whom shall form a quorum, that they and their successors shall hold, use, and enjoy forever all the powers, authorities, rights, property, liberties, privileges and immunities, heretofore held, &c., by the Trustees of Dartmouth College, except where the act otherwise provides; that they shall also have power to determine the times and places of their meetings, and manner of notifying the same; to organize Colleges in the University; to establish an institute and elect fellows and members thereof; to appoint and displace officers and determine their duties and compensation; to delegate the power of supplying vacancies in any of the offices of the University for a limited term; to pass ordinances for the government of the students; to prescribe the course of education; and to arrange, invest and employ the funds of the University. The act then provides for the appointment of a Board of twenty-five overseers, fifteen of whom shall form a quorum, of whom five are to be such ex officio, and the residue of the Overseers, as well as the new Trustees, are to be appointed by the Governor and Council. The Board of Overseers are, among other things, to have power, "to inspect and confirm, or disapprove and negative, such votes and proceedings of the Board of Trustees as shall relate to the appointment and removal of President, professors, and other permanent officers of the University, and determine their salaries; to the establishment of Colleges and professorships, and the erection of new College buildings." The act then provides that the President and professors shall be nominated by the Trustees, and appointed by the Overseers, [p*710] and shall be liable to be suspended and removed in the same manner, and that each of the two Boards of Trustees and Overseers shall have power to suspend and remove any member of their respective Boards. The Supplementary Act of the 18th of December, 1816, declares that nine Trustees shall form a quorum, and that six votes at least shall be necessary for the passage of any act or resolution. The Act of the 26th of December, 1816, contains other provisions not very material to the question before us.

From this short analysis, it is apparent that, in substance, a new corporation is created, including the old corporators, with new powers, and subject to a new control, or that the old corporation is newly organized and enlarged, and placed under an authority hitherto unknown to it. The Board of Trustees are increased from twelve to twenty-one. The College becomes a University. The property vested in the old Trustees is transferred to the new Board of Trustees, in their corporate capacities. The quorum is no longer seven, but nine. The old Trustees have no longer the sole right to perpetuate their succession by electing other Trustees, but the nine new Trustees are, in the first instance, to be appointed by the Governor and Council, and the new Board are then to elect other Trustees from time to time, as vacancies occur. The new Board, too, have the power to suspend or remove any member, so that a minority of the old Board, cooperating with the new Trustees, possess the unlimited power to remove the majority of the old Board. The powers, too, of the corporation are varied. It has authority to organize new Colleges in [p*711] "the University, and to establish an institute, and elect fellows and members thereof." A Board of Overseers is created (a board utterly unknown to the old charter), and is invested with a general supervision and negative upon all the most important acts and proceedings of the Trustees. And to give complete effect to this new authority, instead of the right to appoint, the trustees are, in future, only to nominate, and the Overseers are to approve, the President and professors of the University.

If these are not essential changes, impairing the rights and authorities of the Trustees and vitally affecting the interests and organization of Dartmouth College under its old charter, it is difficult to conceive what acts, short of an unconditional repeal of the charter, could have that effect. If a grant of land or franchises be made to A., in trust for special purposes, can the grant be revoked, and a new grant thereof be made to A., B. and C., in trust for the same purposes, without violating the obligation of the first grant? If property be vested by grant in A. and B., for the use of a College, or an hospital, of private foundation, is not the obligation of that grant impaired when the estate is taken from their exclusive management and vested in them in common with ten other persons? If a power of appointment be given to A. and B., is it no violation of their right to annul the appointment unless it be assented to by five other persons, and then confirmed by a distinct body? If a bank or insurance company, by the terms of its charter, be under the management of directors, elected by the stockholders, would not the [p*712] rights acquired by the charter be impaired if the legislature should take the right of election from the stockholders and appoint directors unconnected with the corporation? These questions carry their own answers along with them. The common sense of mankind will teach us that all these cases would be direct infringements of the legal obligations of the grants to which they refer, and yet they are, with no essential distinction, the same as the case now at the bar.

In my judgment, it is perfectly clear that any act of a legislature which takes away any powers or franchises vested by its charter in a private corporation, or its corporate officers, or which restrains or controls the legitimate exercise of them, or transfers them to other persons without its assent is a violation of the obligations of that charter. If the legislature mean to claim such an authority, it must be reserved in the grant. The charter of Dartmouth College contains no such reservation, and I am therefore bound to declare that the acts of the Legislature of New Hampshire now in question do impair the obligations of that charter, and are consequently unconstitutional and void.

In pronouncing this judgment, it has not for one moment escaped me how delicate, difficult, and ungracious is the task devolved upon us. The predicament in which this Court stands in relation to the nation at large is full of perplexities and embarrassments. It is called to decide on causes between citizens of different States, between a State and its citizens, and between different States. It stands, therefore in the midst of [p*713] jealousies and rivalries of conflicting parties with the most momentous interests confided to its care. Under such circumstances, it never can have a motive to do more than its duty, and I trust it will always be found to possess firmness enough to do that.

Under these impressions, I have pondered on the case before us with the most anxious deliberation. I entertain great respect for the Legislature whose acts are in question. I entertain no less respect for the enlightened tribunal whose decision we are called upon to review. In the examination, I have endeavored to keep my steps super antiquas vias of the law, under the guidance of authority and principle. It is not for judges to listen to the voice of persuasive eloquence or popular appeal. We have nothing to do, but to pronounce the law as we find it, and, having done this, our justification must be left to the impartial judgment of our country. [p*714]

1. 2 Fonb.Eq., b. 2, pt. 2, ch. 1, s. 1, note (a). Coop.Eq.Pl. 292; 2 Kyd on Corp. 195; Green v. Rutherforth, 1 Ves. 462; Attorney General v. Foundling Hospital, 4 Bro. Ch. 165; S. C. 2 Ves.Jun. 42; Eden v. Foster, 2 P.W. 325; 1 Wooddes. 476; Attorney General v. Price, 3 Atk. 108; Attorney General v. Lock, 3 Atk. 164; Attorney General v. Dixie, 13 Ves. 519; Ex parte Kirby Ravensworth Hospital, 15 Ves. 304, 314; Attorney General v. Earl of Clarendon, 17 Ves. 491, 499; Berkhamstead Free School, 2 Ves. & Beames 134; Attorney General v. Corporation of Carmarthen, Coop.Rep. 30; Mayor, &c. of Colchester v. Lowten, 1 Ves. & Beames 226; Rex v. Watson, 2 T.R. 199; Attorney General v. Utica Ins. Co., 2 Johns.Ch. 371; Attorney General v. Middleton, 2 Ves. 327.

2. Co.Litt. 113a; Harg. & Butler's note 2; Sugden on Powers 140; Jackson v. Jansen, 6 Johns. 73; Franklin v. Osgood, 2 Johns.Cas. 1; S. C. 14 Johns.Rep. 527; Zebach v. Smith, 3 Binn. 69; Lessee of Moody v. Vandyke, 4 Binn. 7, 31; Attorney General v. Gley, 1 Atk. 356; 1 Bac.Abr. 586 (Gwill. edit.).