U.S. Supreme Court

Trustees of Dartmouth Coll. v.Woodward, 17 U.S. 4 Wheat. 518 518 (1819)Trustees of Dartmouth College v.Woodward

17 U.S. (4 Wheat.)518

ERROR TO THE SUPERIORCOURT

OF THE STATE OF NEWHAMPSHIRE

Syllabus

The charter granted by the British Crown to the trustees ofDartmouth College, in New Hampshire, in the year 1769, is acontract within the meaning of that clause of the Constitution ofthe United States, art. 1, s. 10, which declares that no stateshall make any law impairing the obligation of contracts. Thecharter was not dissolved by the Revolution.

An act of the State Legislature of New Hampshire altering thecharter without the consent of the corporation in a materialrespect, is an act impairing the obligation of the charter, and isunconstitutional and void.

Under its charter, Dartmouth College was a private, and not apublic, corporation. That a corporation is established for purposesof general charity, or for education generally does not,perse, make it a public corporation, liable to the control of thelegislature.

The case was argued at February Term, 1811, and was decided atFebruary Term, 1812. The defendant had died after February Term,1811. The judgment was enterednunc pro tunc.

This was an action of trover, brought in the State court, inwhich the plaintiffs in error declared for

Page 17 U. S. 519

two books of records, purporting to contain the records of allthe doings and proceedings of the trustees of Dartmouth Collegefrom the establishment of the corporation until the 7th day ofOctober, 1816; the original charter or letters-patent, constitutingthe college; the common seal; and four volumes or books of account,purporting to contain the charges and accounts in favor of thecollege. The defendant pleaded the general issue, and at the trial,the following special verdict was found:

"The said jurors, upon their oath, say, that his Majesty GeorgeIII., King of Great Britain, &c., issued his letters-patent,under the public seal of the province, now State, of New Hampshire,bearing the 13th day of December, in the 10th year of his reign,and in the year of our Lord 1769, in the words following:"

" George the Third, by the grace of God, of Great Britain,France and Ireland, King, Defender of the Faith, and so forth, Toall to whom these presents shall come, greeting:"

" Whereas, it hath been represented to our trusty andwell-beloved John Wentworth, Esq., governor and commander-in-chief,in and over our province of New Hampshire, in New England, inAmerica, that the Reverend Eleazar Wheelock, of Lebanon, in thecolony of Connecticut, in New England, aforesaid, now doctor indivinity, did, on or about the year of our Lord 1754,

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at his own expense, on his own estate and plantation, set onfoot an Indian charity school, and for several years, through theassistance of well-disposed persons in America, clothed, maintainedand educated a number of the children of the Indian natives, with aview to their carrying the Gospel, in their own language, andspreading the knowledge of the great Redeemer, among their savagetribes, and hath actually employed a number of them as missionariesand schoolmasters in the wilderness for that purpose; and by theblessing of God upon the endeavors of said Wheelock, the designbecame reputable among the Indians, insomuch that a large numberdesired the education of their children in said school, and werealso disposed to receive missionaries and schoolmasters, in thewilderness, more than could be supported by the charitablecontributions in these American colonies. Whereupon, the saidEleazar Wheelock thought it expedient, that endeavors should beused to raise contributions from well disposed persons in Englandfor the carrying on and extending said undertaking; and for thatpurpose the said Eleazar Wheelock requested the Rev. NathanielWhitaker, now doctor in divinity, to go over to England for thatpurpose, and sent over with him the Rev. Samson Occom, an Indianminister, who had been educated by the said Wheelock. And to enablethe said Whitaker to the more successful performance of said work,on which he was sent, said Wheelock gave him a full power ofattorney, by which said Whitaker solicited those worthy andgenerous contributors to the charity,viz.,

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The Right Honorable William, Earl of Dartmouth, the HonorableSir Sidney Stafford Smythe, Knight, one of the barons of hisMajesty's Court of Exchequer, John Thornton, of Clapham, in theCounty of Surrey, Esquire, Samuel Roffey, of Lincoln's Inn Fields,in the County of Middlesex, Esquire, Charles Hardy, of the parishof Saint Mary-le-bonne, in said county, Esquire, Daniel West, ofChrist's Church, Spitalfields, in the county aforesaid, Esquire,Samuel Savage, of the same place, gentleman, Josiah Roberts, of theParish of St. Edmund the King, Lombard Street, London, gentleman,and Robert Keen, of the Parish of Saint Botolph, Aldgate, London,gentleman, to receive the several sums of money which should becontributed, and to be trustees for the contributors to suchcharity, which they cheerfully agreed to. Whereupon, the saidWhitaker did, by virtue of said power of attorney, constitute andappoint the said Earl of Dartmouth, Sir Sidney Stafford Smythe,John Thornton, Samuel Roffey, Charles Hardy and Daniel West,Esquires, and Samuel Savage, Josiah Roberts and Robert Keen,gentlemen, to be trustees of the money which had then beencontributed, and which should, by his means, be contributed forsaid purpose, which trust they have accepted, as by their engrosseddeclaration of the same, under their hands and seals, wellexecuted, fully appears, and the same has also been ratified, by adeed of trust, well executed by the said Wheelock."

" And the said Wheelock further represents, that he has, bypower of attorney, for many weighty reasons,

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given full power to the said trustees to fix upon and determinethe place for said school, most subservient to the great end inview; and to enable them understandingly to give the preference,the said Wheelock has laid before the said trustees, the severaloffers which have been generously made in the several governmentsin America to encourage and invite the settlement of said schoolamong them, for their own private emolument and the increase oflearning in their respective places, as well as for the furtheranceof the general design in view. And whereas a large number of theproprietors of lands in the western part of this our province ofNew Hampshire, animated and excited thereto by the generous exampleof his excellency, their Governor, and by the liberal contributionsof many noblemen and gentlemen in England, and especially by theconsideration that such a situation would be as convenient as anyfor carrying on the great design among the Indians; and also,considering, that without the least impediment to the said design,the same school may be enlarged and improved to promote learningamong the English, and be a means to supply a great number ofchurches and congregations which are likely soon to be formed inthat new country, with a learned and orthodox ministry; they, thesaid proprietors, have promised large tracts of land, for the usesaforesaid, provided the school shall be settled in the western partof our said province. And they, the said right honorable, honorableand worthy trustees before mentioned, having maturely consideredthe reasons and arguments in favor of the several places

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proposed, have given the preference to the western part of oursaid province, lying on Connecticut river, as a situation mostconvenient for said school."

" And the said Wheelock has further represented a necessity of alegal incorporation in order to the safety and wellbeing of saidseminary, and its being capable of the tenure and disposal of landsand bequests for the use of the same. And the said Wheelock hasalso represented that, for many weighty reasons, it will beexpedient, at least in the infancy of said institution or till itcan be accommodated in that new country and he and his friends beable to remove and settle by and round about it, that the gentlemenwhom he has already nominated in his last will (which he hastransmitted to the aforesaid gentlemen of the trust in England) tobe trustees in America should be of the corporation now proposed.And also, as there are already large collections for said school inthe hands of the aforesaid gentlemen of the trust in England, andall reasons to believe, from their singular wisdom, piety and zealto promote the Redeemer's cause (which has already procured forthem the utmost confidence of the Kingdom), we may expect they willappoint successors in time to come who will be men of the samespirit, whereby great good may and will accrue many ways to theinstitution, and much be done, by their example and influence, toencourage and facilitate the whole design in view; for whichreason, said Wheelock desires that the trustees aforesaid may bevested with all that power therein which can consist with theirdistance from the same. "

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" KNOW YE, THEREFORE that We, considering the premises and beingwilling to encourage the laudable and charitable design ofspreading Christian knowledge among the savages of our Americanwilderness, and also that the best means of education beestablished in our province of New Hampshire, for the benefit ofsaid province, do, of our special grace, certain knowledge and meremotion, by and with the advice of our counsel for said province, bythese presents, will, ordain, grant and constitute that there be acollege erected in our said province of New Hampshire by the nameof Dartmouth College, for the education and instruction of youth ofthe Indian tribes in this land in reading, writing, and all partsof learning which shall appear necessary and expedient forcivilizing and christianizing children of pagans, as well as in allliberal arts and sciences, and also of English youth and anyothers. And the trustees of said college may and shall be one bodycorporate and politic, in deed, action and name, and shall becalled, named and distinguished by the name of the Trustees ofDartmouth College."

" And further, we have willed, given, granted, constituted andordained, and by this our present charter, of our special grace,certain knowledge and mere motion, with the advice aforesaid, do,for us, our heirs and successors forever, will, give, grant,constitute and ordain that there shall be in the said DartmouthCollege, from henceforth and forever, a body politic consisting oftrustees of said Dartmouth College. And for the more full andperfect erection of said corporation and body politic, consistingof trustees of Dartmouth College, we, of our special grace,certain

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knowledge and mere motion, do, by these presents, for us, ourheirs and successors, make, ordain, constitute and appoint ourtrusty and well beloved John Wentworth, Esq., Governor of our saidprovince, and the Governor of our said province of New Hampshirefor the time being, and our trusty and well beloved TheodoreAtkinson, Esq., now president of our Council of our said province,George Jaffrey and Daniel Peirce, Esq'rs, both or our said Council,and Peter Gilman, Esq., now speaker of our house of representativesin said province, and William Pitkin, Esq., one of the assistantsof our colony of Connecticut, and our said trusty and well belovedEleazar Wheelock, of Lebanon, doctor in divinity, Benjamin Pomroy,of Hebroe, James Lockwood, of Weathersfield, Timothy Pitkin andJohn Smalley, of Farmington, and William Patten, of Hartford, allof our said colony of Connecticut, ministers of the gospel (thewhole number of said trustees consisting, and hereafter for ever toconsist, of twelve and no more) to be trustees of said DartmouthCollege, in this our province of New Hampshire."

" And we do further, of our special grace, certain knowledge andmere motion, for us, our heirs and successors, will, give, grantand appoint that the said trustees and their successors shallforever hereafter be, in deed, act and name, a body corporate andpolitic, and that they, the said body corporate and politic, shallbe known and distinguished, in all deeds, grants, bargains, sales,writings, evidences or otherwise howsoever, and in all courtsforever hereafter, plea and be impleaded by the name of theTrustees of Dartmouth College; and that the said corporation,

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by the name aforesaid, shall be able, and in law capable, forthe use of said Dartmouth College, to have, get, acquire, purchase,receive, hold, possess and enjoy, tenements, hereditaments,jurisdictions and franchises, for themselves and their successors,in fee-simple, or otherwise howsoever, and to purchase, receive orbuild any house or houses, or any other buildings, as they shallthink needful and convenient, for the use of said DartmouthCollege, and in such town in the western part of our said provinceof New Hampshire, as shall, by said trustees, or the major part ofthem, he agreed on, their said agreement to be evidenced by aninstrument in writing, under their hands, ascertaining the same;and also to receive and dispose of any lands, goods, chattels andother things, of what nature soever, for the use aforesaid; andalso to have, accept and receive any rents, profits, annuities,gifts, legacies, donations or bequests of any kind whatsoever, forthe use aforesaid; so, nevertheless that the yearly value of thepremises do not exceed the sum of �6000 sterling; and therewith, orotherwise, to support and pay, as the said trustees, or the majorpart of such of them as are regularly convened for the purpose,shall agree, the president, tutors and other officers and ministersof said Dartmouth College; and also to pay all such missionariesand schoolmasters as shall be authorized, appointed and employed bythem, for civilizing and christianizing, and instructing the Indiannatives of this land, their several allowances; and also theirrespective annual salaries or allowances, and all such necessaryand

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contingent charges as from time to time shall arise and accruerelating to the said Dartmouth College; and also, to bargain, sell,let or assign, lands, tenements or hereditaments, goods orchattels, and all other things whatsoever, by the name aforesaid inas full and ample a manner, to all intents and purposes, as anatural person, or other body politic or corporate, is able to do,by the laws or our realm of Great Britain, or of said province ofNew Hampshire."

" And further, of our special grace, certain knowledge and meremotion, to the intent that our said corporation and body politicmay answer the end of their erection and constitution, and may haveperpetual succession and continuance forever, we do, for us, ourheirs and successors, will, give and grant unto the Trustees ofDartmouth College, and to their successors forever that there shallbe, once a year, and every year, a meeting of said trustees, heldat said Dartmouth College, at such time as by said trustees, or themajor part of them, at any legal meeting of said trustees, shall beagreed on; the first meeting to be called by the said EleazarWheelock, as soon as conveniently may be, within one year nextafter the enrollment of these our letters-patent, at such time andplace as he shall judge proper. And the said trustees, or the majorpart of any seven or more of them, shall then determine on the timefor holding the annual meeting aforesaid, which may be altered asthey shall hereafter find most convenient. And we further order anddirect that the said Eleazar Wheelock shall notify the time forholding said first meeting, to be called as aforesaid, by sending aletter

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to each of said trustees, and causing an advertisement thereofto be printed in the New Hampshire Gazette, and in some publicnewspaper printed in the colony of Connecticut. But in case of thedeath or incapacity of the said Wheelock, then such meeting to benotified in manner aforesaid, by the Governor or commander-in-chiefof our said province for the time being. And we do also, for us,our heirs and successors, hereby will, give and grant unto the saidTrustees of Dartmouth College, aforesaid, and to their successorsforever that when any seven or more of the said trustees, or theirsuccessors, are convened and met together, for the service of saidDartmouth College, at any time or times, such seven or more shallbe capable to act as fully and amply, to all intents and purposes,as if all the trustees of said college were personally present --and all affairs and actions whatsoever, under the care of saidtrustees, shall be determined by the majority or greater number ofthose seven or more trustees so convened and met together."

And we do further will, ordain and direct that the president,trustees, professors, tutors and all such officers as shall beappointed for the public instruction and government of said collegeshall, before they undertake the execution of their offices ortrusts, or within one year after, take the oaths and subscribe thedeclaration provided by an act of parliament made in the first yearof King George the First, entitled "an act for the further securityof his majesty's person and government, and the succession of theCrown in the heirs of the late Princess Sophia, being

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Protestants, and for the extinguishing the hopes of thepretended Prince of Wales, and his open and secret abettors;" thatis to say, the president, before the Governor of our said provincefor the time being, or by one by him empowered to that service, orby the president of our said Council, and the trustees, professors,tutors and other officers, before the president of said college forthe time being, who is hereby empowered to administer the same; anentry of all which shall be made in the records of saidcollege.

And we do, for us, our heirs, and successors, hereby will, giveand grant full power and authority to the president hereafter by usnamed, and to his successors, or, in case of his failure, to anythree or more of the said trustees, to appoint other occasionalmeetings, from time to time, of the said seven trustees, or anygreater number of them, to transact any matter or thing necessaryto be done before the next annual meeting, and to order notice tothe said seven, or any greater number of them, of the times andplaces of meeting for the service aforesaid, by a letter under hisor their hands, of the same, one month before said meeting:provided always that no standing rule or order be made or altered,for the regulation of said college, nor any president or professorbe chosen or displaced, nor any other matter or thing transacted ordone, which shall continue in force after the then next annualmeeting of the said trustees, as aforesaid.

" And further, we do, by these presents, for us, our heirs andsuccessors, create, make, constitute, nominate and appoint ourtrusty and well beloved Eleazar Wheelock, doctor in divinity, thefounder of said

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college, to be President of said Dartmouth College, and to havethe immediate care of the education and government of such studentsas shall be admitted into said Dartmouth College for instructionand education; and do will, give and grant to him, in said office,full power, authority and right, to nominate, appoint, constituteand ordain, by his last will, such suitable and meet person orpersons as he shall choose to succeed him in the presidency of saidDartmouth College; and the person so appointed, by his last will,to continue in office, vested with all the powers, privileges,jurisdiction and authority of a president of said DartmouthCollege; that is to say, so long and until such appointment by saidlast will shall be disapproved by the trustees of said DartmouthCollege."

" And we do also, for us, our heirs and successors, will, giveand grant to the said trustees of said Dartmouth College, and totheir successors forever, or any seven or more of them, convened asaforesaid that in the case of the ceasing or failure of apresident, by any means whatsoever that the said trustees do elect,nominate and appoint such qualified person as they, or the majorpart of any seven or more of them, convened for that purpose asabove directed, shall think fit, to be president of said DartmouthCollege, and to have the care of the education and government ofthe students as aforesaid; and in case of the ceasing of apresident as aforesaid, the senior professor or tutor, being one ofthe trustees, shall exercise the office of a president until thetrustees shall make choice of and appoint, a president asaforesaid;

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and such professor or tutor, or any three or more of thetrustees, shall immediately appoint a meeting of the body of thetrustees for the purpose aforesaid. And also we do will, give andgrant to the said trustees, convened as aforesaid that they elect,nominate and appoint so many tutors and professors to assist thepresident in the education and government of the students belongingthereto as they the said trustees shall, from time to time, thinkneedful and serviceable to the interests of said Dartmouth College.And also that the said trustees or their successors, or the majorpart of any seven or more of them, convened for that purpose asabove directed, shall, at any time, displace and discharge from theservice of said Dartmouth College, any or all such officers, andelect others in their room and stead, as before directed. And alsothat the said trustees, or their successors, or the major part ofany seven of them which shall convene for that purpose, as abovedirected, do, from time to time, as occasion shall require, elect,constitute and appoint a treasurer, a clerk, an usher and a stewardfor the said Dartmouth College, and appoint to them, and each ofthem, their respective businesses and trust; and displace anddischarge from the service of said college, such treasurer, clerk,usher or steward, and to elect others in their room and stead;which officers so elected, as before directed, we do for us, ourheirs and successors, by these presents, constitute and establishin their respective offices, and do give to each and every of themfull power and authority to exercise the same in said DartmouthCollege, according to the

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directions, and during the pleasure of said trustees, as fullyand freely as "

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any like officers in any of our universities, colleges orseminaries of learning in our realm of Great Britain, lawfully mayor ought to do. And also that the said trustees and theirsuccessors, or the major part of any seven or more of them, whichshall convene for that purpose, as is above directed, as often asone or more of said trustees shall die, or by removal or otherwiseshall, according to their judgment, become unfit or incapable toserve the interests of said college, do, as soon as may be afterthe death, removal or such unfitness or incapacity of such trusteeor trustees, elect and appoint such trustee or trustees as shallsupply the place of him or them so dying, or becoming incapable toserve the interests of said college; and every trustee so electedand appointed shall, by virtue of these presents, and such electionand appointment, be vested with all the powers and privileges whichany of the other trustees of said college are hereby vested with.And we do further will, ordain and direct that from and after theexpiration of two years from the enrollment of these presents, suchvacancy or vacancies as may or shall happen, by death or otherwise,in the aforesaid number of trustees, shall be filled up by electionas aforesaid, so that when such vacancies shall be filled up untothe complete number of twelve trustees, eight of the aforesaidwhole number of the body of trustees shall be resident, andrespectable freeholders of our said province of New Hampshire, andseven of said whole number shall be laymen.

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" And we do further, of our special grace, certain knowledge andmere motion, will, give and grant unto the said trustees ofDartmouth College that they, and their successors, or the majorpart of any seven of them, which shall convene for that purpose, asis above directed, may make, and they are hereby fully empowered,from time to time, fully and lawfully to make and establish suchordinances, orders and laws, as may tend to the good and wholesomegovernment of the said college, and all the students and theseveral officers and ministers thereof, and to the public benefitof the same, not repugnant to the laws and statutes of our realm ofGreat Britain, or of this our province of New Hampshire, and notexcluding any person of any religious denomination whatsoever, fromfree and equal liberty and advantage of education, or from any ofthe liberties and privileges or immunities of the said college, onaccount of his or their speculative sentiments in religion, and ofhis or their being of a religious profession different from thesaid trustees of the said Dartmouth College. And such ordinances,orders and laws, which shall as aforesaid be made, we do, for us,our heirs and successors, by these presents, ratify, allow of, andconfirm, as good and effectual to oblige and bind all the students,and the several officers and ministers of the said college. And wedo hereby authorize and empower the said trustees of DartmouthCollege, and the president, tutors and professors by them electedand appointed as aforesaid, to put such ordinances, orders and lawsin execution, to all proper intents and purposes. "

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" And we do further, of our special grace, certain knowledge andmere motion, will, give, and grant unto the said trustees of saidDartmouth College, for the encouragement of learning, and animatingthe students of said college to diligence and industry, and alaudable progress in literature that they, and their successors, orthe major part of any seven or more of them, convened for thatpurpose, as above directed, do, by the president of said college,for the time being, or any other deputed by them, give and grantany such degree or degrees to any of the students of the saidcollege, or any others by them thought worthy thereof, as areusually granted in either of the universities, or any other collegein our realm of Great Britain; and that they sign and seal diplomasor certificates of such graduations, to be kept by the graduates asperpetual memorials and testimonials thereof."

" And we do further, of our special grace, certain knowledge andmere motion, by these presents, for us, our heirs and successors,give and grant unto the trustees of said Dartmouth College, and totheir successors that they and their successors shall have a commonseal, under which they may pass all diplomas or certificates ofdegrees, and all other affairs and business of, and concerning thesaid college; which shall be engraven in such a form and with suchan inscription as shall be devised by the said trustees, for thetime being, or by the major part of any seven or more of them,convened for the service of the said college, as is above directed."

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" And we do further, for us, our heirs and successors, give andgrant unto the said trustees of the said Dartmouth College, andtheir successors, or to the major part of any seven or more ofthem, convened for the service of the said college, full power andauthority, from time to time, to nominate and appoint all otherofficers and ministers, which they shall think convenient andnecessary for the service of the said college, not hereinparticularly named or mentioned; which officers and ministers we dohereby empower to execute their offices and trusts, as fully andfreely as any of the officers and ministers in our universities orcolleges in our realm of Great Britain lawfully may or ought todo."

" And further that the generous contributors to the support ofthis design of spreading the knowledge of the only true God andSaviour among the American savages, may, from time to time, besatisfied that their liberalities are faithfully disposed of, inthe best manner, for that purpose, and that others may, in futuretime, be encouraged in the exercise of the like liberality, forpromoting the same pious design, it shall be the duty of thepresident of said Dartmouth College, and of his successors,annually, or as often as he shall be thereunto desired or required,to transmit to the right honorable, honorable, and worthy gentlemenof the trust, in England, before mentioned, a faithful account ofthe improvements and disbursements of the several sums he shallreceive from the donations and bequests made in England, throughthe hands of said trustees, and also advise them of the generalplans laid, and prospects exhibited, as well as a faithful

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account of all remarkable occurrences, in order, if they shallthink expedient that they may be published. And this to continue solong as they shall perpetuate their board of trust, and there shallbe any of the Indian natives remaining to be proper objects of thatcharity. And lastly, our express will and pleasure is, and we do,by these presents, for us, our heirs and successors, give and grantunto the said trustees of Dartmouth College, and to theirsuccessors forever that these our letters-patent, on the enrollmentthereof in the secretary's office of our province of New Hampshireaforesaid, shall be good and effectual in the law, to all intentsand purposes, against us, our heirs and successors, without anyother license, grant or confirmation from us, our heirs andsuccessors, hereafter by the said trustees to be had and obtained,notwithstanding the not writing or misrecital, not naming ormisnaming the aforesaid offices, franchises, privileges, immunitiesor other the premises, or any of them, and notwithstanding a writofad quod damnum hath not issued forth to inquire of thepremises, or any of them, before the ensealing hereof, any statute,act, ordinance, or provision, or any other matter or thing, to thecontrary notwithstanding. To have and to hold, all and singular theprivileges, advantages, liberties, immunities, and all other thepremises herein and hereby granted, or which are meant, mentionedor intended to be herein and hereby given and granted, unto them,the said trustees of Dartmouth College, and to their successorsforever. In testimony whereof, we have caused these our letters tobe made patent, and the public seal of

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our said province of New Hampshire to be hereunto affixed.Witness our trusty and well beloved John Wentworth, Esquire,Governor and commander-in-chief in and over our said province,&c., this thirteenth day of December, in the tenth year of ourreign, and in the year of our Lord 1769."

"N.B. The words 'and such professor or tutor, or anythree or more of the trustees, shall immediately appoint a meetingof the body of the trustees, for the purpose aforesaid,' betweenthe first and second lines, also the words 'or more,' between the27th and 28th lines, also the words 'or more,' between the 28th and29th lines, and also the words 'to all intents and purposes,'between the 37th and 38th lines of this sheet, were respectivelyinterlined, before signing and sealing."

"And the said jurors, upon their oath, further say that,afterwards, upon the 18th day of the same December, the saidletters-patent were duly enrolled and recorded in the secretary'soffice of said province, now State, of New Hampshire, andafterwards, and within one year from the issuing of the sameletters-patent, all the persons named as trustees in the sameaccepted the said letters-patent, and assented thereunto, and thecorporation therein, and thereby created and erected was dulyorganized, and has, until the passing of the act of the Legislatureof the State of New Hampshire, of the 27th of June, A.D. 1816, andever since (unless prevented by said act and the

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doings under the same) continued to be a corporation."

"And the said jurors, upon their oath, further say that,immediately after its erection and organization as aforesaid, thesaid corporation had, took, acquired and received, by gift,donation, devise and otherwise, lands, goods, chattels and moneysof great value; and from time to time since, have had, taken,received and acquired, in manner aforesaid, and otherwise, lands,goods, chattels and moneys of great value; and on the same 27th dayof June, A.D. 1816, the said corporation, erected and organized asaforesaid, had, held and enjoyed, and ever since have had, held andenjoyed, divers lands, tenements, hereditaments, goods, chattelsand moneys, acquired in manner aforesaid, the yearly income of thesame, not exceeding the sum of $26,666, for the use of saidDartmouth College, as specified in said letters-patent. And thesaid jurors, upon their oath, further say that part of the saidlands, so acquired and holden by the said trustees as aforesaid,were granted by (and are situate in) the State of Vermont, A.D.1785, and are of great value; and other part of said lands, soacquired and holden as aforesaid, were granted by (and are situatein) the State of New Hampshire, in the years 1789 and 1807, and areof great value. And the said jurors, upon their oath, further saythat the said trustees of Dartmouth College, so constituted asaforesaid, on the same 27th day of June, A.D. 1816, were possessedof the goods and chattels in the declaration of the said trusteesspecified,

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and at the place therein mentioned, as of their own proper goodsand chattels, and continued so possessed until, and at the time ofthe demand and refusal of the same, as hereinafter mentioned,unless divested thereof, and their title thereto defeated andrendered invalid, by the provisions of the act of the State of NewHampshire, made and passed on the same 27th day of June, A.D. 1816,and the doings under the same, as hereinafter mentioned andrecited."

"And the said jurors, upon their oath, further say that, on the27th day of June, A.D. 1816, the legislature of said State of NewHampshire made and passed a certain act, entitled, 'An Act to amendthe charter, and enlarge and improve the corporation of DartmouthCollege,' in the words following:"

" An Act to amend the charter, and enlarge and improve thecorporation of Dartmouth College."

" Whereas, knowledge and learning generally diffused through acommunity, are essential to the preservation of a free government,and extending the opportunities and advantages of education ishighly conducive to promote this end, and by the constitution it ismade the duty of the legislators and magistrates to cherish theinterests of literature, and the sciences, and all seminariesestablished for their advancement; and as the college of the Statemay, in the opinion of the legislature, be rendered moreextensively useful: therefore --"

" 1. Be it enacted, &c. that the

Page 17 U. S. 540

corporation, heretofore called and known by the name of theTrustees of Dartmouth College shall ever hereafter be called andknown by the name of the Trustees of Dartmouth University; and thewhole number of said trustees shall be twenty-one, a majority ofwhom shall form a quorum for the transaction of business; and theyand their successors in that capacity, as hereby constituted, shallrespectively forever have, hold, use, exercise and enjoy all thepowers, authorities, rights, property, liberties, privileges andimmunities which have hitherto been possessed, enjoyed and used bythe Trustees of Dartmouth College, except so far as the same may bevaried or limited by the provisions of this act. And they shallhave power to determine the times and places of their meetings, andmanner of notifying the same; to organize colleges in theuniversity; to establish an institute, and elect fellows andmembers thereof: to appoint such officers as they may deem proper,and determine their duties and compensation, and also to displacethem; to delegate the power of supplying vacancies in any of theoffices of the university, for any term of time not extendingbeyond their next meeting: to pass ordinances for the government ofthe students, with reasonable penalties, not inconsistent with theconstitution and laws of this State; to prescribe the course ofeducation, and confer degrees; and to arrange, invest and employthe funds of the university."

" 2. And be it further enacted that there shall be a Board ofOverseers, who shall have perpetual succession, and whose numbershall be twenty-five,

Page 17 U. S. 541

fifteen of whom shall constitute a quorum for the transaction ofbusiness. The President of the Senate, and the Speaker of the Houseof Representatives of New Hampshire, the Governor and LieutenantGovernor of Vermont, for the time being, shall be members of saidboard,ex officio. The Board of Overseers shall have powerto determine the times and places of their meetings, and manner ofnotifying the same; to inspect and confirm, or disapprove andnegative, such votes and proceedings of the Board of Trustees asshall relate to the appointment and removal of President,professors and other permanent officers of the university, anddetermine their salaries; to the establishment of colleges andprofessorships, and the erection of new college buildings: providedalways that the said negative shall be expressed within sixty daysfrom the time of said Overseers' being furnished with copies ofsuch acts: provided also that all votes and proceedings of theBoard of Trustees shall be valid and effectual, to all intents andpurposes, until such negative of the Board of Overseers beexpressed, according to the provisions of this act."

" 3. Be it further enacted that there shall be a treasurer ofsaid corporation, who shall be duly sworn, and who, before heenters upon the duties of his office, shall give bonds, withsureties, to the satisfaction of the corporation, for the faithfulperformance thereof; and also a secretary to each of the Boards ofTrustees and Overseers, to be elected by the said Boards,respectively, who shall keep a just and true record of theproceedings of the Board for

Page 17 U. S. 542

which he was chosen. And it shall furthermore be the duty of thesecretary of the Board of Trustees to furnish, as soon as may be,to the said Board of Overseers, copies of the records of such votesand proceedings, as by the provisions of this act are made subjectto their revision and control."

" 4. Be it further enacted that the President of DartmouthUniversity, and his successors in office, shall have thesuperintendence of the government and instruction of the students,and may preside at all meetings of the trustees, and do and executeall the duties devolving by usage on the president of a university.He shall render annually to the Governor of this State an accountof the number of students, and of the State of the funds of theUniversity, and likewise copies of all important votes andproceedings of the corporation and Overseers, which shall be madeout by the secretaries of the respective Boards."

" 5. Be it further enacted that the President and professors ofthe University shall be nominated by the Trustees, and approved bythe Overseers, and shall be liable to be suspended or removed fromoffice in manner as before provided. And each of the two Boards ofTrustees and Overseers shall have power to suspend and remove anymember of their respective Boards."

" 6. Be it further enacted that the Governor and counsel arehereby authorized to fill all vacancies in the Board of Overseers,whether the same be original vacancies or are occasioned by thedeath, resignation or removal of any member. And

Page 17 U. S. 543

the Governor and counsel in like manner shall, by appointments,as soon as may be, complete the present Board of Trustees to thenumber of twenty-one, as provided for by this act, and shall havepower also to fill all vacancies that may occur previous to, orduring the first meeting of the said Board of Trustees. But thePresident of said University for the time being, shall,nevertheless, be a member of said Board of Trusteesexofficio. And the Governor and Council shall have power toinspect the doings and proceedings of the corporation, and of allthe officers of the University, whenever they deem it expedient;and they are hereby required to make such inspection, and reportthe same to the legislature of this State, as often as once inevery five years. And the Governor is hereby authorized andrequested to summon the first meeting of the said Trustees andOverseers, to be held at Hanover, on the 26th day of Augustnext."

" 7. Be it further enacted that the President and professors ofthe University, before entering upon the duties of their offices,shall take the oath to support the Constitution of the UnitedStates and of this State; certificates of which shall be in theoffice of the secretary of this State, within sixty days from theirentering on their offices respectively."

" 8. Be it further enacted that perfect freedom of religiousopinion shall be enjoyed by all the officers and students of theUniversity, and no officer or student shall be deprived of anyhonors, privileges or benefits of the institution on account of hisreligious creed or belief. The theological colleges which

Page 17 U. S. 544

may be established in the University shall be founded on thesame principles of religious freedom; and any man, or body of men,shall have a right to endow colleges or professorships of any sectof the Protestant Christian religion; and the Trustees shall beheld and obliged to appoint professors of learning and piety ofsuch sects, according to the will of the donors."

" Approved, June 27th, 1816."

"And the said jurors, upon their oath, further say that, at theannual meeting of the Trustees of Dartmouth College, constitutedagreeably to the letters-patent aforesaid, and in no other way ormanner, holden at said college, on the 28th day of August, A.D.1816, the said Trustees voted and resolved, and caused the saidvote and resolve to be entered on their records that they do notaccept the provisions of the said act of the legislature of NewHampshire of the 27th of June 1816, above recited, but do, by thesaid vote and resolve, expressly refuse to accept or act under thesame. And the said jurors, upon their oath, further say that thesaid Trustees of Dartmouth College have never accepted, assentedto, or acted under, the said Act of the 27th of June, A.D. 1816, orany act passed in addition thereto, or in amendment thereof, buthave continued to act, and still claim the right of acting, underthe said letters-patent."

"And the said jurors, upon their oath, further say that, on the7th day of October, A.D. 1816, and before the commencement of thissuit, the said Trustees of Dartmouth College demanded of thesaid

Page 17 U. S. 545

William H. Woodward the property, goods and chattels in the saiddeclaration specified, and requested the said William H. Woodward,who then had the same in his hands and possession, to deliver thesame to them, which the said William H. Woodward then and thererefused to do, and has ever since neglected and refused to do, butconverted the same to his own use, if the said Trustees ofDartmouth College could, after the passing of the said act of the27th day of June, lawfully demand the same, and if the said WilliamH. Woodward was not, by law, authorized to retain the same in hispossession after such demand."

"And the said jurors, upon their oath, further say that, on the18th day of December, A.D. 1816, the Legislature of the said Stateof New Hampshire made and passed a certain other act, entitled"

" An act in addition to, and in amendment of, an act, entitled,an act to amend the charter, and enlarge and improve thecorporation of Dartmouth College,"

"in the words following:"

" An act in addition to, and in amendment of, an act, entitled,'an act to amend the charter, and enlarge and improve theCorporation of Dartmouth College.'"

" Whereas, the meetings of the Trustees and Overseers ofDartmouth University, which were summoned agreeably to theprovisions of said act, failed of being duly holden, in consequenceof a quorum of neither said Trustees nor Overseers attending atthe

Page 17 U. S. 546

time and place appointed, whereby the proceedings of saidcorporation have hitherto been, and still are delayed:"

" 1. Be it enacted, &c. that the Governor be, and he ishereby authorized and requested to summon a meeting of the Trusteesof Dartmouth University, at such time and place as he may deemexpedient. And the said Trustees, at such meeting, may do andtransact any matter or thing, within the limits of theirjurisdiction and power, as such Trustees, to every intent andpurpose, and as fully and completely as if the same were transactedat any annual or other meeting. And the Governor, with advice ofCouncil, is authorized to fill all vacancies that have happened, ormay happen in the Board of said Trustees, previous to their nextannual meeting. And the Governor is hereby authorized to summon ameeting of the Overseers of said University, at such time and placeas he may consider proper. And provided a less number than a quorumof said Board of Overseers convene at the time and place appointedfor such meeting of their Board, they shall have power to adjourn,from time to time, until a quorum shall have convened."

" 2. And be it further enacted that so much of the act to whichthis is an addition as makes necessary any particular number ofTrustees or Overseers of said University to constitute a quorum forthe transaction of business be, and the same hereby is repealed;and that hereafter, nine of said Trustees, convened agreeably tothe provisions of this act, or

Page 17 U. S. 547

to those of that to which this is an addition, shall be a quorumfor transacting business; and that in the Board of Trustees, sixvotes at least shall be necessary for the passage of any act orresolution. And provided also that any smaller number than nine ofsaid Trustees, convened at the time and place appointed for anymeeting of their Board, according to the provisions of this act, orthat to which this is an addition, shall have power to adjourn fromtime to time, until a quorum shall have convened."

" 3. And be it further enacted that each member of said Board ofTrustees, already appointed or chosen, or hereafter to be appointedor chosen, shall, before entering on the duties of his office, makeand subscribe an oath for the faithful discharge of the dutiesaforesaid; which oath shall be returned to, and filed in the officeof the secretary of State, previous to the next regular meeting ofsaid Board, after said member enters on the duties of his office,as aforesaid."

" Approved, December 18th, 1816."

"And the said jurors, upon their oath, further say that, on the26th day of December, A.D. 1816, the Legislature of said State ofNew Hampshire made and passed a certain other act, entitled, 'anact in addition to an act, entitled, an act in addition to, and inamendment of an act, entitled, an act to amend the charter andenlarge and improve the corporation of Dartmouth College,' in thewords following: "

Page 17 U. S. 548

" An act in addition to an act, entitled, 'an act in additionto, and in amendment of, an act, entitled, an act to amend thecharter and enlarge and improve the corporation of DartmouthCollege.'"

" Be it enacted &c. that if any person or persons shallassume the office of President, Trustee, professor, secretary,treasurer, librarian or other officer of Dartmouth University; orby any name, or under any pretext, shall, directly or indirectly,take upon himself or themselves the discharge of any of the dutiesof either of those offices, except it be pursuant to, and inconformity with, the provisions of an act, entitled, 'an act toamend the charter and enlarge and improve the corporation ofDartmouth College,' or, of the 'act, in addition to and inamendment of an act, entitled, an act to amend the charter andenlarge and improve the corporation of Dartmouth College,' or shallin any way, directly or indirectly, wilfully impede or hinder anysuch officer or officers already existing, or hereafter to beappointed agreeably to the provisions of the acts aforesaid, in thefree and entire discharge of the duties of their respectiveoffices, conformably to the provisions of said acts, the person orpersons so offending shall, for each offence, forfeit and pay thesum of five hundred dollars, to be recovered by any person whoshall sue therefor, one-half thereof to the use of the prosecutor,and the other half to the use of said University."

" And be it further enacted that the person or persons whosustained the offices of secretary and treasurer

Page 17 U. S. 549

of the Trustees of Dartmouth College, next before the passage ofthe act, entitled, 'an act to amend the charter and enlarge andimprove the corporation of Dartmouth College,' shall continue tohold and discharge the duties of those offices, as secretary andtreasurer of the Trustees of Dartmouth University, until anotherperson or persons be appointed, in his or their stead, by theTrustees of said University. And that the treasurer of saidUniversity, so existing, shall, in his office, have the care,management, direction and superintendence of the property of saidcorporation, whether real or personal, until a quorum of saidTrustees shall have convened in a regular meeting."

" Approved, December 26th, 1816."

"And the said jurors, upon their oath, further say that the saidWilliam H. Woodward, before the said 27th day of June, had beenduly appointed by the said Trustees of Dartmouth College, secretaryand treasurer of the said corporation, and was duly qualified toexercise, and did exercise the said offices, and perform the dutiesof the same; and as such secretary and treasurer, rightfully had,while he so continued secretary and treasurer as aforesaid, thecustody and keeping of the several goods, chattels and property, insaid declaration specified."

"And the said jurors, upon their oath, further say that the saidWilliam H. Woodward was removed by said Trustees of DartmouthCollege (if the said Trustees could, by law, do the said acts) fromsaid office of secretary, on the 27th day of August, A.D. 1816, andfrom said office of treasurer, on the 27th day of

Page 17 U. S. 550

September, then next following, of which said removals he, thesaid William H. Woodward, had due notice on each of said days lastmentioned."

"And the said jurors, upon their oath, further say that thecorporation called the Trustees of Dartmouth University was dulyorganized on the 4th day of February, A.D. 1817, pursuant to, andunder, the said recited acts of the 27th day of June, and of the18th and 26th days of December, A.D. 1816; and the said William H.Woodward was, on the said 4th day of February, A.D. 1817, dulyappointed by the said Trustees of Dartmouth University, secretaryand treasurer of the said Trustees of Dartmouth University, andthen and there accepted both said offices."

"And the said jurors, upon their oath, further say that thissuit was commenced on the 8th day of February, A.D. 1817. Butwhether upon the whole matter aforesaid, by the jurors aforesaid,in manner and form aforesaid found, the said acts of the 27th ofJune, 18th and 26th of December, A.D. 1816, are valid in law, andbinding on the said Trustees of Dartmouth College, withoutacceptance thereof and assent thereunto by them, so as to renderthe plaintiffs incapable of maintaining this action, or whether thesame acts are repugnant to the Constitution of the United States,and so void, the said jurors are wholly ignorant, and pray theadvice of the court upon the premises. And if, upon the saidmatter, it shall seem to the Court here that the said acts lastmentioned are valid in law, and binding on said Trustees ofDartmouth College,

Page 17 U. S. 551

without acceptance thereof and assent thereto by them, so as torender the plaintiffs incapable of maintaining this action, and arenot repugnant to the Constitution of the United States, then thesaid jurors, upon their oath, say that the said William H. Woodwardis not guilty of the premises above laid to his charge by thedeclaration aforesaid, as the said William H. Woodward hath abovein pleading alleged. But if, upon the whole matter aforesaid, itshall seem to the Court here that the said acts last mentioned arenot valid in law, and are not binding on the said Trustees ofDartmouth College without acceptance thereof and assent thereto bythem, so as to render them incapable of maintaining this action,and that the said acts are repugnant to the Constitution of theUnited States and void, then the said jurors, upon their oath, saythat the said William H. Woodward is guilty of the premises abovelaid to his charge, by the declaration aforesaid, and in that case,they assess the damages of them, the said Trustees of DartmouthCollege, by occasion thereof, at $20,000."

Judgment having been afterwards rendered upon the said specialverdict, by the superior court of the State of New Hampshire, beingthe highest court of law or equity of said State, for the plaintiffbelow, the cause was brought before this court by writ oferror.

Page 17 U. S. 624

Mr. Chief Justice MARSHALL delivered the opinion of theCourt.

This is an action of trover, brought by the Trustees ofDartmouth College against William H. Woodward, in the State courtof New Hampshire, for the book of records, corporate seal, andother corporate property, to which the plaintiffs allege themselvesto be entitled.

A special verdict, after setting out the rights of the parties,finds for the defendant, if certain acts of the Legislature of NewHampshire, passed on the 27th of June, and on the 18th of December1816, be valid, and binding on the Trustees, without their assent,and not repugnant to the Constitution of the United States;otherwise, it finds for the plaintiffs.

Page 17 U. S. 625

The Superior Court of judicature of New Hampshire rendered ajudgment upon this verdict for the defendant, which judgment hasbeen brought before this court by writ of error. The singlequestion now to be considered is do the acts to which the verdictrefers violate the Constitution of the United States?

This court can be insensible neither to the magnitude nordelicacy of this question. The validity of a legislative act is tobe examined; and the opinion of the highest law tribunal of a Stateis to be revised -- an opinion which carries with it intrinsicevidence of the diligence, of the ability, and the integrity, withwhich it was formed. On more than one occasion, this Court hasexpressed the cautious circumspection with which it approaches theconsideration of such questions, and has declared that in nodoubtful case would it pronounce a legislative act to be contraryto the Constitution. But the American people have said in theConstitution of the United States that "no State shall pass anybill of attainder,ex post facto law, or law impairing theobligation of contracts." In the same instrument, they have alsosaid, "that the judicial power shall extend to all cases in law andequity arising under the Constitution." On the judges of thisCourt, then, is imposed the high and solemn duty of protecting,from even legislative violation, those contracts which theConstitution of our country has placed beyond legislative control;and however irksome the task may be, this is a duty from which wedare not shrink.

Page 17 U. S. 626

The title of the plaintiffs originates in a charter dated the13th day of December, in the year 1769, incorporating twelvepersons therein mentioned, by the name of "The Trustees ofDartmouth College," granting to them and their successors the usualcorporate privileges and powers, and authorizing the Trustees, whoare to govern the college, to fill up all vacancies which may becreated in their own body.

The defendant claims under three acts of the Legislature of NewHampshire, the most material of which was passed on the 27th ofJune, 1816, and is entitled "An act to amend the charter, andenlarge and improve the corporation of Dartmouth College." Amongother alterations in the charter, this act increases the number ofTrustees to twenty-one, gives the appointment of the additionalmembers to the executive of the State, and creates a Board ofOverseers with power to inspect and control the most important actsof the Trustees. This Board consists of twenty-five persons. ThePresident of the Senate, the speaker of the house ofrepresentatives, of New Hampshire, and the Governor and LieutenantGovernor of Vermont, for the time being, are to be membersexofficio. The Board is to be completed by the Governor andCouncil of New Hampshire, who are also empowered to fill allvacancies which may occur. The acts of the 18th and 26th ofDecember are supplemental to that of the 27th of June, and areprincipally intended to carry that act into effect. The majority ofthe Trustees of the college have refused to accept this amendedcharter, and have

Page 17 U. S. 627

brought this suit for the corporate property, which is inpossession of a person holding by virtue of the acts which havebeen stated.

It can require no argument to prove that the circumstances ofthis case constitute a contract. An application is made to theCrown for a charter to incorporate a religious and literaryinstitution. In the application, it is stated that largecontributions have been made for the object, which will beconferred on the corporation as soon as it shall be created. Thecharter is granted, and on its faith the property is conveyed.Surely, in this transaction, every ingredient of a complete andlegitimate contract is to be found. The points for considerationare, 1. Is this contract protected by the Constitution of theUnited States? 2. Is it impaired by the acts under which thedefendant holds?

1. On the first point, it has been argued that the word"contract," in its broadest sense, would comprehend the politicalrelations between the government and its citizens, would extend tooffices held within a State, for State purposes, and to many ofthose laws concerning civil institutions, which must change withcircumstances and be modified by ordinary legislation, which deeplyconcern the public, and which, to preserve good government, thepublic judgment must control. That even marriage is a contract, andits obligations are affected by the laws respecting divorces. Thatthe clause in the Constitution, if construed in its greatestlatitude,

Page 17 U. S. 628

would prohibit these laws. Taken in its broad, unlimited sense,the clause would be an unprofitable and vexatious interference withthe internal concerns of a State, would unnecessarily and unwiselyembarrass its legislation, and render immutable those civilinstitutions, which are established for purposes of internalgovernment, and which, to subserve those purposes, ought to varywith varying circumstances. That, as the framers of theConstitution could never have intended to insert in that instrumenta provision so unnecessary, so mischievous, and so repugnant to itsgeneral spirit, the term "contract" must be understood in a morelimited sense. That it must be understood as intended to guardagainst a power of at least doubtful utility, the abuse of whichhad been extensively felt, and to restrain the legislature infuture from violating the right to property. That, anterior to theformation of the Constitution, a course of legislation hadprevailed in many, if not in all, of the States, which weakened theconfidence of man in man, and embarrassed all transactions betweenindividuals, by dispensing with a faithful performance ofengagements. To correct this mischief by restraining the powerwhich produced it, the State legislatures were forbidden "to passany law impairing the obligation of contracts," that is, ofcontracts respecting property, under which some individual couldclaim a right to something beneficial to himself, and that, sincethe clause in the Constitution must in construction receive somelimitation, it may be confined, and ought to be confined, to casesof this

Page 17 U. S. 629

description, to cases within the mischief it was intended toremedy.

The general correctness of these observations cannot becontroverted. That the framers of the Constitution did not intendto restrain the States in the regulation of their civilinstitutions, adopted for internal government, and that theinstrument they have given us is not to be so construed, may beadmitted. The provision of the Constitution never has beenunderstood to embrace other contracts than those which respectproperty, or some object of value, and confer rights which may beasserted in a court of justice. It never has been understood torestrict the general right of the legislature to legislate on thesubject of divorces.* Those acts enablesome tribunals not to impair a marriage contract, but to liberateone of the parties, because it has been broken by the other. Whenany State legislature shall pass an act annulling all marriagecontracts, or allowing either party to annul it, without theconsent of the other, it will be time enough to inquire, whethersuch an act be constitutional.

The parties in this case differ less on general principles, lesson the true construction of the Constitution in the abstract, thanon the application of those principles to this case and on the trueconstruction of the charter of 1769. This is the point on which thecause essentially depends. If the act of incorporation be a grantof political power, if it create a civil institution, to beemployed in the administration of the government, or if the fundsof the college be

Page 17 U. S. 630

public property, or if the State of New Hampshire, as agovernment, be alone interested in its transactions, the subject isone in which the legislature of the State may act according to itsown judgment, unrestrained by any limitation of its power imposedby the Constitution of the United States.

But if this be a private eleemosynary institution, endowed witha capacity to take property for objects unconnected withgovernment, whose funds are bestowed by individuals on the faith ofthe charter; if the donors have stipulated for the futuredisposition and management of those funds in the manner prescribedby themselves, there may be more difficulty in the case, althoughneither the persons who have made these stipulations, nor those forwhose benefit they were made should be parties to the cause. Thosewho are no longer interested in the property may yet retain such aninterest in the preservation of their own arrangements as to have aright to insist that those arrangements shall be held sacred. Or,if they have themselves disappeared, it becomes a subject ofserious and anxious inquiry whether those whom they have legallyempowered to represent them forever may not assert all the rightswhich they possessed while in being; whether, if they be withoutpersonal representatives who may feel injured by a violation of thecompact, the Trustees be not so completely their representatives inthe eye of the law as to stand in their place not only as respectsthe government of the College, but also as respects the maintenanceof the College charter. It becomes then the duty of the Court,most

Page 17 U. S. 631

seriously to examine this charter and to ascertain its truecharacter.

From the instrument itself, it appears that, about the year1754, the Rev. Eleazer Wheelock established, at his own expense andon his own estate, a charity school for the instruction of Indiansin the Christian religion. The success of this institution inspiredhim with the design of soliciting contributions in England forcarrying on and extending his undertaking. n this pious work, heemployed the Rev. Nathaniel Whitaker, who, by virtue of a power ofattorney from Dr. Wheelock, appointed the Earl of Dartmouth andothers Trustees of the money which had been and should becontributed, which appointment Dr. Wheelock confirmed by a deed oftrust authorizing the Trustees to fix on a site for the College.They determined to establish the school on Connecticut River in thewestern part of New Hampshire, that situation being supposedfavorable for carrying on the original design among the Indians andalso for promoting learning among the English, and the proprietorsin the neighborhood having made large offers of land on conditionthat the College should there be placed. Dr. Wheelock then appliedto the Crown for an act of incorporation, and represented theexpediency of appointing those whom he had, by his last will, namedas Trustees in America to be members of the proposed corporation."In consideration of the premises," "for the education andinstruction of the youth of the Indian tribes," &c., "and alsoof English youth, and any others," the charter was granted, and theTrustees of Dartmouth College were, by that name, created abody

Page 17 U. S. 632

corporate, with power,for the use of the said College,to acquire real and personal property, and to pay the President,tutors and other officers of the College, such salaries as theyshall allow.

The charter proceeds to appoint Eleazer Wheelock, "the founderof said College," President thereof, with power, by his last will,to appoint a successor, who is to continue in office untildisapproved by the Trustees. In case of vacancy, the Trustees mayappoint a President, and in case of the ceasing of a President, thesenior professor or tutor, being one of the Trustees, shallexercise the office until an appointment shall be made. TheTrustees have power to appoint and displace professors, tutors andother officers, and to supply any vacancies which may be created intheir own body by death, resignation, removal or disability, andalso to make orders, ordinances and laws for the government of theCollege, the same not being repugnant to the laws of Great Britainor of New Hampshire, and not excluding any person on account of hisspeculative sentiments in religion, or his being of a religiousprofession different from that of the Trustees. This charter wasaccepted, and the property, both real and personal, which had beencontributed for the benefit of the College was conveyed to, andvested in, the corporate body.

From this brief review of the most essential parts of thecharter, it is apparent that the funds of the College consistedentirely of private donations. It is, perhaps, not very importantwho were the donors. The probability is that the Earl of Dartmouth,and the other Trustees in England, were, in fact, the largest

Page 17 U. S. 633

contributors. Yet the legal conclusion from the facts recited inthe charter would probably be that Dr. Wheelock was the founder ofthe College. The origin of the institution was undoubtedly theIndian charity school established by Dr. Wheelock at his ownexpense. It was at his instance and to enlarge this school thatcontributions were solicited in England. The person solicitingthese contributions was his agent, and the Trustees who receivedthe money were appointed by, and act under, his authority. It isnot too much to say that the funds were obtained by him in trust,to be applied by him to the purposes of his enlarged school. Thecharter of incorporation was granted at his instance. The personsnamed by him in his last will as the Trustees of his charity schoolcompose a part of the corporation, and he is declared to be thefounder of the College, and its President for life. Were theinquiry material, we should feel some hesitation in saying that Dr.Wheelock was not, in law, to be considered as the founder, 1Bl.Com. 481, of this institution, and as possessing all the rightsappertaining to that character. But be this as it may, DartmouthCollege is really endowed by private individuals, who have bestowedtheir funds for the propagation of the Christian religion among theIndians and for the promotion of piety and learning generally. Fromthese funds the salaries of the tutors are drawn, and thesesalaries lessen the expense of education to the students. It

Page 17 U. S. 634

is then an eleemosynary (1 Bl. Com. 471), and so far as respectsits funds, a private corporation.

Do its objects stamp on it a different character? Are theTrustees and professors public officers, invested with any portionof political power, partaking in any degree in the administrationof civil government, and performing duties which flow from thesovereign authority? That education is an object of nationalconcern, and a proper subject of legislation, all admit. That theremay be an institution, founded by government and placed entirelyunder its immediate control, the officers of which would be publicofficers, amenable exclusively to government, none will deny. Butis Dartmouth College such an institution? Is education altogetherin the hands of government? Does every teacher of youth become apublic officer, and do donations for the purpose of educationnecessarily become public property so far that the will of thelegislature, not the will of the donor, becomes the law of thedonation? These questions are of serious moment to society, anddeserve to be well considered.

Doctor Wheelock, as the keeper of his charity school,instructing the Indians in the art of reading, and in our holyreligion, sustaining them at his own expense and on the voluntarycontributions of the charitable, could scarcely be considered as apublic officer exercising any portion of those duties which belongto government, nor could the legislature have

Page 17 U. S. 635

supposed that his private funds, or those given by others, weresubject to legislative management because they were applied to thepurposes of education. When, afterwards, his school was enlargedand the liberal contributions made in England and in Americaenabled him to extend his care to the education of the youth of hisown country, no change was wrought in his own character or in thenature of his duties. Had he employed assistant tutors with thefunds contributed by others, or had the Trustees in Englandestablished a school, with Dr. Wheelock at its head, and paidsalaries to him and his assistants, they would still have beenprivate tutors, and the fact that they were employed in theeducation of youth could not have converted them into publicofficers, concerned in the administration of public duties, or havegiven the legislature a right to interfere in the management of thefund. The Trustees, in whose care that fund was placed by thecontributors, would have been permitted to execute their trustuncontrolled by legislative authority.

Whence, then, can be derived the idea that Dartmouth College hasbecome a public institution, and its Trustees public officers,exercising powers conferred by the public for public objects? Notfrom the source whence its funds were drawn, for its foundation ispurely private and eleemosynary; not from the application of thosefunds, for money may be given for education, and the personsreceiving it do not, by being employed in the education of youth,become members of the civil government. Is it from

Page 17 U. S. 636

the act of incorporation? Let this subject be considered.

A corporation is an artificial being, invisible, intangible, andexisting only in contemplation of law. Being the mere creature oflaw, it possesses only those properties which the charter of itscreation confers upon it either expressly or as incidental to itsvery existence. These are such as are supposed best calculated toeffect the object for which it was created. Among the mostimportant are immortality, and, if the expression may be allowed,individuality -- properties by which a perpetual succession of manypersons are considered as the same, and may act as a singleindividual. They enable a corporation to manage its own affairs andto hold property without the perplexing intricacies, the hazardousand endless necessity, of perpetual conveyances for the purpose oftransmitting it from hand to hand. It is chiefly for the purpose ofclothing bodies of men, in succession, with these qualities andcapacities that corporations were invented, and are in use. Bythese means, a perpetual succession of individuals are capable ofacting for the promotion of the particular object like one immortalbeing. But this being does not share in the civil government of thecountry, unless that be the purpose for which it was created. Itsimmortality no more confers on it political power, or a politicalcharacter, than immortality would confer such power or character ona natural person. It is no more a state instrument than a naturalperson exercising the same powers would be. If, then, a naturalperson, employed

Page 17 U. S. 637

by individuals in the education of youth or for the governmentof a seminary in which youth is educated would not become a publicofficer or be considered as a member of the civil government, howis it that this artificial being, created by law for the purpose ofbeing employed by the same individuals, for the same purposes,should become a part of the civil government of the country? Is itbecause its existence, its capacities, its powers, are given bylaw? Because the government has given it the power to take and tohold property, in a particular form, and for particular purposes,has the government a consequent right substantially to change thatform, or to vary the purposes to which the property is to beapplied? This principle has never been asserted or recognised, andis supported by no authority. Can it derive aid from reason?

The objects for which a corporation is created are universallysuch as the government wishes to promote. They are deemedbeneficial to the country, and this benefit constitutes theconsideration, and in most cases, the sole consideration of thegrant. In most eleemosynary institutions, the object would bedifficult, perhaps unattainable, without the aid of a charter ofincorporation. Charitable or public-spirited individuals, desirousof making permanent appropriations for charitable or other usefulpurposes, find it impossible to effect their design securely andcertainly without an incorporating act. They apply to thegovernment, state their beneficent object, and offer to advance themoney necessary for its accomplishment,

Page 17 U. S. 638

provided the government will confer on the instrument which isto execute their designs the capacity to execute them. Theproposition is considered and approved. The benefit to the publicis considered as an ample compensation for the faculty it confers,and the corporation is created. If the advantages to the publicconstitute a full compensation for the faculty it gives, there canbe no reason for exacting a further compensation by claiming aright to exercise over this artificial being, a power which changesits nature and touches the fund for the security and application ofwhich it was created. There can be no reason for implying in acharter, given for a valuable consideration, a power which is notonly not expressed, but is in direct contradiction to its expressstipulations.

From the fact, then, that a charter of incorporation has beengranted, nothing can be inferred which changes the character of theinstitution or transfers to the government any new power over it.The character of civil institutions does not grow out of theirincorporation, but out of the manner in which they are formed andthe objects for which they are created. The right to change them isnot founded on their being incorporated, but on their being theinstruments of government, created for its purposes. The sameinstitutions, created for the same objects, though notincorporated, would be public institutions, and, of course, becontrollable by the legislature. The incorporating act neithergives nor prevents this control. Neither, in reason, can theincorporating act

Page 17 U. S. 639

change the character of a private eleemosynary institution.

We are next led to the inquiry for whose benefit the propertygiven to Dartmouth College was secured? The counsel for thedefendant have insisted that the beneficial interest is in thepeople of New Hampshire. The charter, after reciting thepreliminary measures which had been taken, and the application foran act of incorporation, proceeds thus:

"Know ye, therefore that we, considering the premises, and beingwilling to encourage the laudable and charitable design ofspreading Christian knowledge among the savages of our Americanwilderness, and also that the best means of education beestablished in our province of New Hampshire, for the benefit ofsaid province, do, of our special grace,"

&c. Do these expressions bestow on New Hampshire anyexclusive right to the property of the College, any exclusiveinterest in the labors of the professors? Or do they merelyindicate a willingness that New Hampshire should enjoy thoseadvantages which result to all from the establishment of a seminaryof learning in the neighborhood? On this point, we think itimpossible to entertain a serious doubt. The words themselves,unexplained by the context, indicate that the "benefit intended forthe province" is that which is derived from "establishing the bestmeans of education therein," that is, from establishing in theprovince, Dartmouth College, as constituted by the charter. But, ifthese words, considered alone, could admit of doubt, that

Page 17 U. S. 640

doubt is completely removed, by an inspection of the entireinstrument.

The particular interests of New Hampshire never entered into themind of the donors; never constituted a motive for their donation.The propagation of the Christian religion among the savages and thedissemination of useful knowledge among the youth of the countrywere the avowed and the sole objects of their contributions. Inthese, New Hampshire would participate, but nothing particular orexclusive was intended for her. Even the site of the College wasselected not for the sake of New Hampshire, but because it was"most subservient to the great ends in view" and because liberaldonations of land were offered by the proprietors on condition thatthe institution should be there established. The real advantagesfrom the location of the College are perhaps not less considerableto those on the west than to those on the east side of ConnecticutRiver. The clause which constitutes the incorporation and expressesthe objects for which it was made declares those objects to be theinstruction of the Indians "and also of English youth, and anyothers." So that the objects of the contributors and theincorporating act were the same -- the promotion of Christianityand of education generally, not the interests of New Hampshireparticularly.

From this review of the charter, it appears that DartmouthCollege is an eleemosynary institution incorporated for the purposeof perpetuating the application of the bounty of the donors to thespecified objects of that bounty; that its Trustees orGovernors

Page 17 U. S. 641

were originally named by the founder and invested with the powerof perpetuating themselves; that they are not public officers, noris it a civil institution, participating in the administration ofgovernment, but a charity school or a seminary of educationincorporated for the preservation of its property and the perpetualapplication of that property to the objects of its creation.

Yet a question remains to be considered of more real difficulty,on which more doubt has been entertained than on all that have beendiscussed. The founders of the College, at least, those whosecontributions were in money, have parted with the property bestowedupon it, and their representatives have no interest in thatproperty. The donors of land are equally without interest so longas the corporation shall exist. Could they be found, they areunaffected by any alteration in its Constitution, and probablyregardless of its form, or even of its existence. The students arefluctuating, and no individual among our youth has a vestedinterest in the institution which can be asserted in a Court ofjustice. Neither the founders of the College nor the youth forwhose benefit it was founded complain of the alteration made in itscharter, or think themselves injured by it. The Trustees alonecomplain, and the Trustees have no beneficial interest to beprotected. Can this be such a contract as the Constitution intendedto withdraw from the power of State legislation? Contracts theparties to which have a vested beneficial interest, and those only,it has been said, are the objects about

Page 17 U. S. 642

which the Constitution is solicitous, and to which itsprotection is extended.

The Court has bestowed on this argument the most deliberateconsideration, and the result will be stated. Dr. Wheelock, actingfor himself and for those who, at his solicitation, had madecontributions to his school, applied for this charter, as theinstrument which should enable him, and them, to perpetuate theirbeneficent intention. It was granted. An artificial, immortal beingwas created by the Crown, capable of receiving and distributingforever, according to the will of the donors, the donations whichshould be made to it. On this being the contributions which hadbeen collected were immediately bestowed. These gifts were made notindeed to make a profit for the donors or their posterity, but forsomething, in their opinion, of inestimable value -- for somethingwhich they deemed a full equivalent for the money with which it waspurchased. The consideration for which they stipulated is theperpetual application of the fund to its object in the modeprescribed by themselves. Their descendants may take no interest inthe preservation of this consideration. But, in this respect, theirdescendants are not their representatives; they are represented bythe corporation. The corporation is the assignee of their rights,stands in their place, and distributes their bounty as they wouldthemselves have distributed it had they been immortal. So, withrespect to the students who are to derive learning from thissource, the corporation is a Trustee for them also. Their potentialrights, which, taken distributively,

Page 17 U. S. 643

are imperceptible, amount collectively to a most importantinterest. These are, in the aggregate, to be exercised, assertedand protected by the corporation. They were as completely out ofthe donors, at the instant of their being vested in thecorporation, and as incapable of being asserted by the students asat present.

According to the theory of the British Constitution, theirParliament is omnipotent. To annul corporate rights might give ashock to public opinion, which that government has chosen to avoid,but its power is not questioned. Had parliament, immediately afterthe emanation of this charter and the execution of thoseconveyances which followed it, annulled the instrument, so that theliving donors would have witnessed the disappointment of theirhopes, the perfidy of the transaction would have been universallyacknowledged. Yet then, as now, the donors would have no interestin the property; then, as now, those who might be students wouldhave had no rights to be violated; then, as now, it might be saidthat the Trustees, in whom the rights of all were combined,possessed no private, individual, beneficial interests in theproperty confided to their protection. Yet the contract would, atthat time, have been deemed sacred by all. What has since occurredto strip it of its inviolability? Circumstances have not changedit. In reason, in justice, and in law, it is now what is was in1769.

This is plainly a contract to which the donors, the Trustees,and the Crown (to whose rights and obligations New Hampshiresucceeds) were the original

Page 17 U. S. 644

parties. It is a contract made on a valuable consideration. Itis a contract for the security and disposition of property. It is acontract on the faith of which real and personal estate has beenconveyed to the corporation. It is, then, a contract within theletter of the Constitution, and within its spirit also, unless thefact that the property is invested by the donors in Trustees forthe promotion of religion and education, for the benefit of personswho are perpetually changing, though the objects remain the same,shall create a particular exception taking this case out of theprohibition contained in the Constitution.

It is more than possible that the preservation of rights of thisdescription was not particularly in the view of the framers of theConstitution when the clause under consideration was introducedinto that instrument. It is probable that interferences of morefrequent occurrence, to which the temptation was stronger, and ofwhich the mischief was more extensive, constituted the great motivefor imposing this restriction on the State legislatures. Butalthough a particular and a rare case may not, in itself, be ofsufficient magnitude to induce a rule, yet it must be governed bythe rule, when established, unless some plain and strong reason forexcluding it can be given. It is not enough to say that thisparticular case was not in the mind of the convention when thearticle was framed, nor of the American people when it was adopted.It is necessary to go further and to say that, had this particularcase been suggested, the language would have been so varied as toexclude it, or it would have been made a special exception. The

Page 17 U. S. 645

case, being within the words of the rule, must be within itsoperation likewise, unless there be something in the literalconstruction so obviously absurd or mischievous or repugnant to thegeneral spirit of the instrument as to justify those who expoundthe Constitution in making it an exception.

On what safe and intelligible ground can this exception stand?There is no expression in the Constitution, no sentiment deliveredby its contemporaneous expounders, which would justify us in makingit. In the absence of all authority of this kind, is there in thenature and reason of the case itself that which would sustain aconstruction of the Constitution not warranted by its words? Arecontracts of this description of a character to excite so littleinterest that we must exclude them from the provisions of theConstitution as being unworthy of the attention of those who framedthe instrument? Or does public policy so imperiously demand theirremaining exposed to legislative alteration as to compel us, orrather permit us, to say that these words, which were introduced togive stability to contracts and which in their plain importcomprehend this contract, must yet be so construed as to excludeit?

Almost all eleemosynary corporations, those which are createdfor the promotion of religion, of charity, or of education, are ofthe same character. The law of this case is the law of all. Inevery literary or charitable institution, unless the objects of thebounty be themselves incorporated, the whole legal interest is inTrustees, and can be asserted only by them. The donors, orclaimants of the bounty, if

Page 17 U. S. 646

they can appear in Court at all, can appear only to complain ofthe Trustees. In all other situations, they are identified with,and personated by, the Trustees, and their rights are to bedefended and maintained by them. Religion, charity and educationare, in the law of England, legatees or donees, capable ofreceiving bequests or donations in this form. They appear in court,and claim or defend by the corporation. Are they of so littleestimation in the United States that contracts for their benefitmust be excluded from the protection of words which in theirnatural import include them? Or do such contracts so necessarilyrequire new modeling by the authority of the legislature that theordinary rules of construction must be disregarded in order toleave them exposed to legislative alteration?

All feel that these objects are not deemed unimportant in theUnited States. The interest which this case has excited proves thatthey are not. The framers of the Constitution did not deem themunworthy of its care and protection. They have, though in adifferent mode, manifested their respect for science by reservingto the government of the Union the power

"to promote the progress of science and useful arts by securingfor limited times, to authors and inventors, the exclusive right totheir respective writings and discoveries."

They have so far withdrawn science and the useful arts from theaction of the State governments. Why then should they be supposedso regardless of contracts made for the advancement of literatureas to intend to exclude them from provisions, made for thesecurity

Page 17 U. S. 647

of ordinary contracts between man and man? No reason for makingthis supposition is perceived.

If the insignificance of the object does not require that weshould exclude contracts respecting it from the protection of theConstitution, neither, as we conceive, is the policy of leavingthem subject to legislative alteration so apparent as to require aforced construction of that instrument in order to effect it. Theseeleemosynary institutions do not fill the place which wouldotherwise be occupied by government, but that which would otherwiseremain vacant. They are complete acquisitions to literature. Theyare donations to education, donations, which any government must bedisposed rather to encourage than to discountenance. It requires novery critical examination of the human mind to enable us todetermine that one great inducement to these gifts is theconviction felt by the giver that the disposition he makes of themis immutable. It is probable that no man ever was, and that no manever will be, the founder of a college, believing at the time thatan act of incorporation constitutes no security for theinstitution, believing that it is immediately to be deemed a publicinstitution, whose funds are to be governed and applied not by thewill of the donor, but by the will of the legislature. All suchgifts are made in the pleasing, perhaps, delusive, hope that thecharity will flow forever in the channel which the givers havemarked out for it. If every man finds in his own bosom strongevidence of the universality of this sentiment, there can be butlittle reason to imagine that the framers of our Constitutionwere

Page 17 U. S. 648

strangers to it, and that, feeling the necessity and policy ofgiving permanence and security to contracts, of withdrawing themfrom the influence of legislative bodies, whose fluctuating policy,and repeated interferences, produced the most perplexing andinjurious embarrassments, they still deemed it necessary to leavethese contracts subject to those interferences. The motives forsuch an exception must be very powerful to justify the constructionwhich makes it.

The motives suggested at the bar grow out of the originalappointment of the Trustees, which is supposed to have been in aspirit hostile to the genius of our government, and the presumptionthat, if allowed to continue themselves, they now are, and mustremain forever, what they originally were. Hence is inferred thenecessity of applying to this corporation, and to other similarcorporations, the correcting and improving hand of thelegislature.

It has been urged repeatedly, and certainly with a degree ofearnestness which attracted attention that the Trustees, derivingtheir power from a regal source, must, necessarily, partake of thespirit of their origin, and that their first principles, unimprovedby that resplendent light which has been shed around them, mustcontinue to govern the College and to guide the students. Before weinquire into the influence which this argument ought to have on theconstitutional question, it may not be amiss to examine the fact onwhich it rests. The first Trustees were undoubtedly named in thecharter by the Crown, but at whose suggestion were they named? Bywhom were they

Page 17 U. S. 649

selected? The charter informs us. Dr. Wheelock hadrepresented

"that, for many weighty reasons, it would be expedient that thegentlemen whom he had already nominated in his last will to beTrustees in America should be of the corporation now proposed."

When afterwards the Trustees are named in the charter, can it bedoubted that the persons mentioned by Dr. Wheelock in his will wereappointed? Some were probably added by the Crown, with theapprobation of Dr. Wheelock. Among these is the doctor himself. Ifany others were appointed at the instance of the Crown, they arethe Governor, three members of the Council, and the Speaker of theHouse of Representatives of the Colony of New Hampshire. Thestations filled by these persons ought to rescue them from anyother imputation than too great a dependence on the Crown. If, inthe revolution that followed, they acted under the influence ofthis sentiment, they must have ceased to be Trustees; if they tookpart with their countrymen, the imputation which suspicion mightexcite would no longer attach to them. The original Trustees, then,or most of them, were named by Dr. Wheelock, and those who wereadded to his nomination, most probably with his approbation, wereamong the most eminent and respectable individuals in NewHampshire.

The only evidence which we possess of the character of Dr.Wheelock is furnished by this charter. The judicious means employedfor the accomplishment of his object, and the success whichattended his endeavors, would lead to the opinion that he united asound understanding to that humanity and

Page 17 U. S. 650

benevolence which suggested his undertaking. It surely cannot beassumed that his Trustees were selected without judgment. With aslittle probability can it be assumed that, while the light ofscience and of liberal principles pervades the whole community,these originally benighted Trustees remain in utter darkness,incapable of participating in the general improvement; that whilethe human race is rapidly advancing, they are stationary. Reasoninga priori, we should believe that learned and intelligentmen, selected by its patrons for the government of a literaryinstitution, would select learned and intelligent men for theirsuccessors, men as well fitted for the government of a College asthose who might be chosen by other means. Should this reasoningever prove erroneous in a particular case, public opinion, as hasbeen stated at the bar, would correct the institution. The merepossibility of the contrary would not justify a construction of theConstitution which should exclude these contracts from theprotection of a provision whose terms comprehend them.

The opinion of the Court, after mature deliberation, is thatthis is a contract the obligation of which cannot be impairedwithout violating the Constitution of the United States. Thisopinion appears to us to be equally supported by reason and by theformer decisions of this Court.

2. We next proceed to the inquiry whether its obligation hasbeen impaired by those acts of the Legislature of New Hampshire towhich the special verdict refers.

Page 17 U. S. 651

From the review of this charter which has been taken, it appearsthat the whole power of governing the College, of appointing andremoving tutors, of fixing their salaries, of directing the courseof study to be pursued by the students, and of filling up vacanciescreated in their own body, was vested in the Trustees. On the partof the Crown, it was expressly stipulated that this corporationthus constituted should continue forever, and that the number ofTrustees should forever consist of twelve, and no more. By thiscontract, the Crown was bound, and could have made no violentalteration in its essential terms without impairing itsobligation.

By the revolution, the duties as well as the powers, ofgovernment devolved on the people of New Hampshire. It is admittedthat among the latter was comprehended the transcendent power ofParliament, as well as that of the executive department. It is tooclear to require the support of argument that all contracts andrights respecting property, remained unchanged by the revolution.The obligations, then, which were created by the charter toDartmouth College were the same in the new that they had been inthe old government. The power of the government was also the same.A repeal of this charter at any time prior to the adoption of thepresent Constitution of the United States would have been anextraordinary and unprecedented act of power, but one which couldhave been contested only by the restrictions upon the legislature,to be found in the constitution of the State. But the Constitutionof the United States has imposed this additional limitation --

Page 17 U. S. 652

that the legislature of a State shall pass no act "impairing theobligation of contracts."

It has been already stated that the act "to amend the charter,and enlarge and improve the corporation of Dartmouth College"increases the number of Trustees to twenty-one, gives theappointment of the additional members to the executive of theState, and creates a Board of Overseers, to consist of twenty-fivepersons, of whom twenty-one are also appointed by the Executive ofNew Hampshire, who have power to inspect and control the mostimportant acts of the Trustees.

On the effect of this law, two opinions cannot be entertained.Between acting directly and acting through the agency of Trusteesand Overseers, no essential difference is perceived. The wholepower of governing the College is transferred from Trustees,appointed according to the will of the founder, expressed in thecharter, to the Executive of New Hampshire. The management andapplication of the funds of this eleemosynary institution, whichare placed by the donors in the hands of Trustees named in thecharter, and empowered to perpetuate themselves, are placed by thisact under the control of the government of the State. The will ofthe State is substituted for the will of the donors in everyessential operation of the College. This is not an immaterialchange. The founders of the College contracted not merely for theperpetual application of the funds which they gave, to the objectsfor which those funds were given; they contracted also to securethat application by the constitution of the corporation.

Page 17 U. S. 653

They contracted for a system which should, so far as humanforesight can provide, retain forever the government of theliterary institution they had formed in the hands of personsapproved by themselves. This system is totally changed. The charterof 1769 exists no longer. It is reorganized, and reorganized insuch a manner as to convert a literary institution, mouldedaccording to the will of its founders, and placed under the controlof private literary men, into a machine entirely subservient to thewill of government. This may be for the advantage of this Collegein particular, and may be for the advantage of literature ingeneral, but it is not according to the will of the donors, and issubversive of that contract on the faith of which their propertywas given.

In the view which has been taken of this interesting case, theCourt has confined itself to the rights possessed by the Trusteesas the assignees and representatives of the donors and founders,for the benefit of religion and literature. Yet it is not clearthat the Trustees ought to be considered as destitute of suchbeneficial interest in themselves as the law may respect. Inaddition to their being the legal owners of the property, and totheir having a freehold right in the powers confided to them, thecharter itself countenances the idea that Trustees may also betutors, with salaries. The first President was one of the originalTrustees, and the charter provides that. in case of vacancy in thatoffice,

"the senior professor or tutor,being one of theTrustees, shall exercise the office of President, until theTrustees shall make choice

Page 17 U. S. 654

of, and appoint a President."

According to the tenor of the charter, then, the Trustees might,without impropriety, appoint a President and other professors fromtheir own body. This is a power not entirely unconnected with aninterest. Even if the proposition of the counsel for the defendantwere sustained, if it were admitted that those contracts only areprotected by the Constitution, a beneficial interest in which isvested in the party, who appears in Court to assert that interest,yet it is by no means clear that the Trustees of Dartmouth Collegehave no beneficial interest in themselves. But the Court has deemedit unnecessary to investigate this particular point, being ofopinion on general principles that, in these private eleemosynaryinstitutions, the body corporate, as possessing the whole legal andequitable interest and completely representing the donors for thepurpose of executing the trust, has rights which are protected bythe Constitution.

It results from this opinion that the acts of the Legislature ofNew Hampshire which are stated in the special verdict found in thiscause are repugnant to the Constitution of the United States, andthat the judgment on this special verdict ought to have been forthe plaintiffs. The judgment of the State Court must, therefore, bereversed.

*Starr v. Hamilton, 1 Deady 268.

WASHINGTON, Justice.

This cause turns upon the validity of certain laws of the Stateof New Hampshire, which have been stated in the case, and which, itis contended by the counsel for the plaintiffs

Page 17 U. S. 655

in error, are void, being repugnant to the constitution of thatState and also to the Constitution of the United States. Whetherthe first objection to these laws be well founded or not is aquestion with which this Court, in this case, has nothing to do,because it has no jurisdiction as an appellate court over thedecisions of a State court except in cases where is drawn inquestion the validity of a treaty, or statute of, or an authorityexercised under, the United States, and the decision is againsttheir validity, or where is drawn in question the validity of astatute of, or an authority exercised under, any State, on theground of their being repugnant to the Constitution, treaties orlaws of the United States, and the decision is in favor of theirvalidity, or where is drawn in question the construction of anyclause of the Constitution, or of a treaty, or statute of, orcommission held under, the United States, and the decision isagainst the title, right, privilege or exemption specially set upor claimed by either party, under such clause of the saidConstitution, treaty, statute or commission.

The clause in the Constitution of the United States which wasdrawn in question in the Court from whence this transcript has beensent is that part of the tenth section of the first article whichdeclares that "no State shall pass any bill of attainder,expost facto law, or any law impairing the obligation ofcontracts." The decision of the State court is against the titlespecially claimed by the plaintiffs in error under the aboveclause, because they contend that the laws of New Hampshire, abovereferred to,

Page 17 U. S. 656

impair the obligation of a contract and are consequentlyrepugnant to the above clause of the Constitution of the UnitedStates, and void. There are, then, two questions for this Court todecide: 1st.: Is the charter granted to Dartmouth College on the13th of December 1769, to be considered as a contract? If it be,then, 2d.: Do the laws in question impair its obligation?

1. What is a contract? It may be defined to be a transactionbetween two or more persons, in which each party comes under anobligation to the other and each reciprocally acquires a right towhatever is promised by the other. Powell on Cont. 6. Under thisdefinition, says Mr. Powell, it is obvious that every feoffment,gift, grant, agreement, promise, &c., may be included, becausein all there is a mutual consent of the minds of the partiesconcerned in them, upon an agreement between them respecting someproperty or right that is the object of the stipulation. He addsthat the ingredients requisite to form a contract are, parties,consent, and an obligation to be created or dissolved; these mustall concur, because the regular effect of all contracts is, on oneside, to acquire, and on the other, to part with, some property orrights, or to abridge or to restrain natural liberty, by bindingthe parties to do, or restraining them from doing, something whichbefore they might have done or omitted. If a doubt could exist thata grant is a contract, the point was decided in the case ofFletcher v.Peck, 6 Cranch 87,

Page 17 U. S. 657

in which it was laid down that a contract is either executory orexecuted; by the former, a party binds himself to do or not to do aparticular thing; the latter is one in which the object of thecontract is performed, and this differs in nothing from a grant;but whether executed or executory, they both contain obligationsbinding on the parties, and both are equally within the provisionsof the Constitution of the United States, which forbids the Stategovernments to pass laws impairing the obligation of contracts.

If, then, a grant be a contract within the meaning of theConstitution of the United States, the next inquiry is whether thecreation of a corporation by charter be such a grant as includes anobligation of the nature of a contract which no State legislaturecan pass laws to impair? A corporation is defined by Mr. JusticeBlackstone (2 Bl.Com. 37) to be a franchise. It is, says he,

"a franchise for a number of persons to be incorporated andexist as a body politic, with a power to maintain perpetualsuccession, and to do corporate acts, and each individual of suchcorporation is also said to have a franchise, or freedom."

This franchise, like other franchises, is an incorporealhereditament, issuing out of something real or personal, orconcerning or annexed to, and exercisable within a thing corporate.To this grant or this franchise the parties are the King and thepersons for whose benefit it is created, or Trustees for them. Theassent of both is necessary.

Page 17 U. S. 658

The subjects of the grant are not only privileges andimmunities, but property, or, which is the same thing, a capacityto acquire and to hold property in perpetuity. Certain obligationsare created, binding both on the grantor and the grantees. On thepart of the former, it amounts to an extinguishment of the King'sprerogative to bestow the same identical franchise on anothercorporate body, because it would prejudice his prior grant. 2Bl.Com. 37. It implies, therefore, a contract not to reassert theright to grant the franchise to another, or to impair it. There isalso an implied contract that the founder of a private charity, orhis heirs, or other persons appointed by him for that purpose,shall have the right to visit and to govern the corporation ofwhich he is the acknowledged founder and patron, and also that, incase of its dissolution, the reversionary right of the founder tothe property with which he had endowed it should be preservedinviolate.

The rights acquired by the other contracting party are those ofhaving perpetual succession, of suing and being sued, of purchasinglands for the benefit of themselves and their successors, and ofhaving a common seal and of making by-laws. The obligation imposedupon them, and which forms the consideration of the grant, is thatof acting up to the end or design for which they were created bytheir founder. Mr. Justice Buller, in the case of theKing v.Pasmore, 3 T.R. 246, says that the grant of incorporation is acompact between the Crown and a number of persons, the latter ofwhom undertake, in consideration

Page 17 U. S. 659

of the privileges bestowed, to exert themselves for the goodgovernment of the place. If they fail to perform their part of it,there is an end of the compact. The charter of a corporation, saysMr. Justice Blackstone, 2 Bl.Com. 484, may be forfeited throughnegligence or abuse of its franchises, in which case the law judgesthat the body politic has broken the condition upon which it wasincorporated, and thereupon the corporation is void. It appears tome, upon the whole, that these principles and authorities proveincontrovertibly that a charter of incorporation is a contract.

2. The next question is do the acts of the Legislature of NewHampshire of the 27th of June, and 18th and 26th of December, 1816,impair this contract within the true intent and meaning of theConstitution of the United States? Previous to the examination ofthis question, it will be proper clearly to mark the distinctionbetween the different kinds of lay aggregate corporations in orderto prevent any implied decision by this Court of any other casethan the one immediately before it.

We are informed by the case ofPhilips v. Bury, 1 LordRaym. 5, S.C. 2 T. R. 346, which contains all the doctrine ofcorporations connected with this point, that there are two kinds ofcorporations aggregate,viz., such as are for publicgovernment and such as are for private charity. The first are thosefor the government of a town, city or the like, and, being forpublic advantage, are

Page 17 U. S. 660

to be governed according to the law of the land. The validityand justice of their private laws and Constitutions are examinablein the King's courts. Of these, there are no particular founders,and consequently, no particular visitor; there are no patrons ofthese corporations. But private and particular corporations forcharity, founded and endowed by private persons, are subject to theprivate government of those who erect them, and are to be visitedby them or their heirs or such other persons as they may appoint.The only rules for the government of these private corporations arethe laws and Constitutions assigned by the founder. This right ofgovernment and visitation arises from the property which thefounder had in the lands assigned to support the charity; and, ashe is the author of the charity, the law invests him with thenecessary power of inspecting and regulating it. The authoritiesare full to prove that a College is a private charity, as well asan hospital, and that there is, in reality, no difference betweenthem except in degree, but they are within the same reason, andboth eleemosynary.

These corporations, civil and eleemosynary, which differ fromeach other so especially in their nature and constitution, may verywell differ in matters which concern their rights and privileges,and their existence and subjection to public control. The one isthe mere creature of public institution, created exclusively forthe public advantage, without other endowments than such as theKing, or government may bestow upon it, and having no other founderor visitor than the King or government, thefundatorincipiens.

Page 17 U. S. 661

The validity and justice of its laws and Constitution areexaminable by the courts having jurisdiction over them, and theyare subject to the general law of the land. It would seemreasonable that such a corporation may be controlled, and itsConstitution altered and amended, by the government in such manneras the public interest may require. Such legislative interferencescannot be said to impair the contract by which the corporation wasformed, because there is, in reality, but one party to it, theTrustees or Governors of the corporation being merely the Trusteesfor the public, thecestui que trust of the foundation.These Trustees or Governors have no interest, no privileges orimmunities, which are violated by such interference, and can haveno more right to complain of them than an ordinary trustee, who iscalled upon in a court of equity to execute the trust. Theyaccepted the charter for the public benefit alone, and there wouldseem to be no reason why the government, under proper limitations,should not alter or modify such a grant at pleasure. But the caseof a private corporation is entirely different. That is thecreature of private benefaction for a charity or private purpose.It is endowed and founded by private persons, and subject to theircontrol, laws and visitation, and not to the general control of thegovernment, and all these powers, rights and privileges flow fromthe property of the founder in the funds assigned for the supportof the charity. Although the King, by the grant of the charter, isin some sense the founder of all eleemosynary corporations because,without his grant, they cannot exist, yet the patron or endower isthe perficient founder to whom belongs, as of

Page 17 U. S. 662

right, all the powers and privileges, which have been described.With such a corporation it is not competent for the legislature tointerfere. It is a franchise or incorporeal hereditament foundedupon private property, devoted by its patron to a private charity,of a peculiar kind, the offspring of his own will and pleasure, tobe managed and visited by persons of his own appointment accordingto such laws and regulations as he or the persons so selected mayordain.

It has been shown that the charter is a contract on the part ofthe government that the property with which the charity is endowedshall be forever vested in a certain number of persons and theirsuccessors, to subserve the particular purposes designated by thefounder and to be managed in a particular way. If a law increasesor diminishes the number of the Trustees, they are not the personswhich the grantor agreed should be the managers of the fund. If itappropriate the fund intended for the support of a particularcharity to that of some other charity, or to an entirely differentcharity, the grant is in effect set aside, and a new contractsubstituted in its place, thus disappointing completely theintentions of the founder by changing the objects of his bounty.And can it be seriously contended that a law which changes somaterially the terms of a contract does not impair it? In short,does not every alteration of a contract, however unimportant, eventhough it be manifestly for the interest of the party objecting toit, impair its obligation? If the assent of all the parties to bebound by a contract be of its essence, how

Page 17 U. S. 663

is it possible that a new contract, substituted for or engraftedon another without such assent, should not violate the oldcharter?

This course of reasoning, which appears to be perfectlymanifest, is not without authority to support it. Mr. JusticeBlackstone lays it down, 2 Bl.Com. 37, that the same identicalfranchise that has been before granted to one cannot be bestowed onanother, and the reason assigned is that it would prejudice theformer grant. In theKing v. Pasmore, 3 T.R. 246, LordKenyon says that an existing corporation cannot have anothercharter obtruded upon it by the Crown. It may reject it, or acceptthe whole or any part of the new charter. The reason is obvious --a charter is a contract, to the validity of which the consent ofboth parties is essential, and therefore it cannot be altered oradded to without such consent.

But the case ofTerrett v.Taylor, 9 Cranch 43, fully supports the distinctionabove stated between civil and private corporations, and isentirely in point. It was decided in that case that a privatecorporation, created by the legislature, may lose its franchises bymisuser or nonuser, and may be resumed by the government under ajudicial judgment of forfeiture. In respect to public corporations,which exist only for public purposes, such as towns, cities,&c., the legislature may, under proper limitations, change,modify, enlarge or restrain them, securing, however, the propertyfor the use of those for whom and at whose expense it waspurchased. But it is denied that it has power to repeal

Page 17 U. S. 664

statutes creating private corporations or confirming to themproperty already acquired under the faith of previous laws, andthat it can, by such repeal, vest the property of such corporationsin the State, or dispose of the same to such purposes as it mayplease, without the consent or default of the corporators. Such alaw, it is declared, would be repugnant both to the spirit and theletter of the Constitution of the United States.

If these principles, before laid down, be correct, it cannot bedenied that the obligations of, the charter to Dartmouth Collegeare impaired by the laws under consideration. The name of thecorporation, its constitution and government, and the objects ofthe founder and of the grantor of the charter are totally changed.By the charter, the property of this founder was vested in twelvetrustees, and no more, to be disposed of by them, or a majority,for the support of a College, for the education and instruction ofthe Indians, and also of English youth, and others. Under the lateacts, the trustees and visitors are different, and the property andfranchises of the College are transferred to different and new usesnot contemplated by the founder. In short, it is most obvious thatthe effect of these laws is to abolish the old corporation and tocreate a new one in its stead. The laws of Virginia, referred to inthe case ofTerrett v. Taylor, authorized the Overseers ofthe poor to sell the glebes belonging to the Protestant EpiscopalChurch and to appropriate the proceeds to other uses. The laws inquestion divest the Trustees of Dartmouth College of the propertyvested in them

Page 17 U. S. 665

by the founder and vest it in other trustees, for the support ofa different institution, called Dartmouth University. In whatrespects do they differ? Would the difference have been greater inprinciple if the law had appropriated the funds of the College tothe making of turnpike roads, or to any other purpose of a publicnature? In all respects in which the contract has been alteredwithout the assent of the corporation, its obligations have beenimpaired, and the degree can make no difference in the constructionof the above provision of the Constitution.

It has been insisted in the argument at the bar that DartmouthCollege was a mere civil corporation, created for a public purpose,the public being deeply interested in the education of its youth,and that, consequently, the charter was as much under the controlof the Government of New Hampshire as if the corporation hadconcerned the government of a town or city. But it has been shownthat the authorities are all the other way. There is not a case tobe found which contradicts the doctrine laid down in the case ofPhilips v. Bury, viz., that a College founded by anindividual or individuals is a private charity, subject to thegovernment and visitation of the founder, and not to the unlimitedcontrol of the government.

It is objected, in this case that Dr. Wheelock is not thefounder of Dartmouth College. Admit he is not. How would this alterthe case? Neither the King nor the Province of New Hampshire wasthe founder, and if the contributions made by the Governor of NewHampshire, by those persons who

Page 17 U. S. 666

granted lands for the College, in order to induce its locationin a particular part of the State, by the other liberalcontributors in England and America, bestow upon them claims equalwith Dr. Wheelock, still it would not alter the nature of thecorporation, and convert it into one for public government. Itwould still be a private eleemosynary corporation, a privatecharity, endowed by a number of persons instead of a singleindividual. But the fact is that whoever may mediately havecontributed to swell the funds of this charity, they were bestowedat the solicitation of Dr. Wheelock, and vested in personsappointed by him, for the use of a charity of which he was theimmediate founder and is so styled in the charter.

Upon the whole, I am of opinion that the above acts of NewHampshire, not having received the assent of the corporate body ofDartmouth College, are not binding on them, and, consequently thatthe judgment of the State Court ought to be reserved.

Mr. Justice JOHNSON concurred for the reasons stated by theChief Justice.

Mr. Justice LIVINGSTON concurred for the reasons stated by theChief Justice, and Justices WASHINGTON and STORY.

Mr. Justice STORY.

This is a cause of great importance, and as the very learneddiscussions as well here as in the State Court show, of noinconsiderable difficulty. There are two questions to which theappellate jurisdiction of this Court properly applies:

Page 17 U. S. 667

1. Whether the original charter of Dartmouth College is acontract within the prohibitory clause of the Constitution of theUnited States, which declares that no State shall pass any "lawimpairing the obligation of contracts?" 2. If so, whether thelegislative acts of New Hampshire of the 27th of June, and of the18th and 27th of December, 1816, or any of them, impair theobligations of that charter?

It will be necessary, however, before we proceed to discussthese questions, to institute an inquiry into the nature, rightsand duties of aggregate corporations at common law, that we mayapply the principles drawn from this source to the exposition ofthis charter, which was granted emphatically with reference to thatlaw.

An aggregate corporation, at common law, is a collection ofindividuals, united into one collective body under a special nameand possessing certain immunities, privileges and capacities in itscollective character which do not belong to the natural personscomposing it. Among other things, it possesses the capacity ofperpetual succession, and of acting by the collected vote or willof its component members, and of suing and being sued in all thingstouching its corporate rights and duties. It is, in short, anartificial person, existing in contemplation of law and endowedwith certain powers and franchises which, though they must beexercised through the medium of its natural members, are yetconsidered as subsisting in the corporation itself as distinctly asif it were a real personage. Hence, such a corporation may sue andbe sued by its own members, and

Page 17 U. S. 668

may contract with them in the same manner as with any strangers.1 Bl.Com. 469, 475, 1 Kyd on Corp. 13, 69, 189, 1 Wooddes. 471,&c. A great variety of these corporations exist in everycountry governed by the common law, in some of which, the corporateexistence is perpetuated by new elections, made from time to time,and in others by a continual accession of new members, without anycorporate act. Some of these corporations are, from the particularpurposes to which they are devoted, denominated spiritual, and somelay, and the latter are again divided into civil and eleemosynarycorporations. It is unnecessary, in this place, to enter into anyexamination of civil corporations. Eleemosynary corporations aresuch as are constituted for the perpetual distribution of the freealms and bounty of the founder in such manner as he has directed,and in this class are ranked hospitals for the relief of poor andimpotent persons, and Colleges for the promotion of learning andpiety and the support of persons engaged in literary pursuits. 1Bl.Com. 469, 470, 471, 482; 1 Kyd on Corp. 25; 1 Wooddes. 474;Attorney General v. Whorwood, 1 Ves. 534;St. John'sCollege 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 publicpolitical purposes only, such as towns, cities, parishes andcounties, and in many respects they are so, although they involvesome private interests; but, strictly speaking, publiccorporations

Page 17 U. S. 669

are such only as are founded by the government for publicpurposes, where the whole interests belong also to the government.If, therefore, the foundation be private, though under the charterof the government, the corporation is private, however extensivethe uses may be to which it is devoted, either by the bounty of thefounder, or the nature and objects of the institution. Forinstance, a bank created by the government for its own uses, whosestock is exclusively owned by the government, is, in the strictestsense, public corporation. So an hospital created and endowed bythe government for general charity. But a bank whose stock is ownedby private persons is a private corporation, although it is erectedby the government and its objects and operations partake of apublic nature. The same doctrine may be affirmed of insurance,canal, bridge and turnpike companies. In all these cases, the usesmay, in a certain sense, be called public, but the corporations areprivate -- as much so, indeed, as if the franchises were vested ina single person.

This reasoning applies in its full force to eleemosynarycorporations. An hospital founded by a private benefactor is, inpoint of law, a private corporation although dedicated by itscharter to general charity. So a College, founded and endowed inthe same manner, although, being for the promotion of learning andpiety, it may extend its charity to scholars from every class inthe community, and thus acquire the character of a publicinstitution. This is the unequivocal doctrine of the authorities,and cannot be

Page 17 U. S. 670

shaken but by undermining the most solid foundations of thecommon law.Philips v. Bury, 1 Lord Raym. 5, 9, S. C. 2T.R. 346.

It was, indeed, supposed at the argument that if the uses of aneleemosynary corporation be for general charity, this alone wouldconstitute it a public corporation. But the law is certainly notso. To be sure, in a certain sense, every charity which isextensive in its reach may be called a public charity, incontradistinction to a charity embracing but a few definiteobjects. In this sense, the language was unquestionably used byLord Hardwicke in the case cited at the argument,AttorneyGeneral v. Pearce, 2 Atk. 87, 1 Bac.Abr. tit. Charitable Uses,E, 589; and in this sense, a private corporation may well enough bedenominated a public charity. So it would be if the endowment,instead of being vested in a corporation, were assigned to aprivate trustee; yet, in such a case, no one would imagine that thetrust ceased to be private, or the funds became public property.That the mere act of incorporation will not change the charity froma private to a public one is most distinctly asserted in theauthorities. Lord Hardwicke, in the case already alluded to,says

"the charter of the Crown cannot make a charity more or lesspublic, but only more permanent than it would otherwise be; but itis the extensiveness which will constitute it a public one. Adevise to the poor of the parish is a public charity. Wheretestators leave it to the discretion of a trustee to choose out theobjects, though each particular

Page 17 U. S. 671

object may be said to be private, yet, in the extensiveness ofthe benefit accruing from them, they may properly be called publiccharities. A sum to be disposed of by A.B. and his executors, attheir discretion, among poor housekeepers, is of this kind."

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

When, then, the argument assumes that, because the charity ispublic, the corporation is public, it manifestly confounds thepopular with the strictly legal sense of the terms. And if itstopped here, it would not be very material to correct the error.But it is on this foundation that a superstructure is erected whichis to compel a surrender of the cause. When the corporation issaid, at the bar, to be public, it is not merely meant that thewhole community may be the proper objects of the bounty, but thatthe government have the sole right, as trustees of the publicinterests, to regulate, control and direct the corporation and itsfunds and its franchises at its own good will and pleasure. Nowsuch

Page 17 U. S. 672

an authority does not exist in the government except where thecorporation, is, in the strictest sense, public -- that is, whereits whole interests and franchises are the exclusive property anddomain of the government itself. If it had been otherwise, courtsof law would have been spared many laborious adjudications inrespect to eleemosynary corporations, and the visitatorial powersover 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; 1Show. 360; 4 Mod. 106; Skin. 447; and Lord Holt's opinion from hisown MS., in 2 T.R. 346. Nay, more, private Trustees for charitablepurposes would have been liable to have the property confided totheir care taken away from them, without any assent or default ontheir part, and the administration submitted not to the control oflaw and equity, but to the arbitrary discretion of the government.Yet who ever thought before that the munificent gifts of privatedonors for general charity became instantaneously the property ofthe government, and that the Trustees appointed by the donors,whether corporate or unincorporated, might be compelled to yield uptheir rights to whomsoever the government might appoint toadminister them? If we were to establish such a principle, it wouldextinguish all future eleemosynary endowments, and we should findas 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 isdeemed a foundation,

Page 17 U. S. 673

and who is the founder. This cannot be stated with more brevityand exactness than in the language of the elegant commentator uponthe laws of England:

"The founder of all corporations [says Sir William Blackstone],in the strictest and original sense, is the King alone, for he onlycan incorporate a society, and in civil corporations, such asmayor, commonalty, &c., where there are no possessions orendowments given to the body, there is no other founder but theKing; but in eleemosynary foundations, such as Colleges andhospitals, where there is an endowment of lands, the lawdistinguishes and makes two species of foundation, the onefundatio incipiens, or the incorporation, in which sensethe King is the general founder of all Colleges and hospitals, theotherfundatio perficiens, or the dotation of it, in whichsense the first gift of the revenues is the foundation, and he whogives them is, in the law, the founder; and it is in this lastsense we generally call a man the founder of a college orhospital."

1 Bl.Com. 480, 10 Co. 33.

To all eleemosynary corporations, a visitatorial power attachesas a necessary incident, for these corporations being composed ofindividuals, subject to human infirmities, are liable as well asprivate persons to deviate from the end of their institution. Thelaw, therefore, has provided that there shall somewhere exist apower to visit, inquire into, and correct all irregularities andabuses in such corporations, and to compel the original purposes ofthe charity to be faithfully fulfilled. 1 Bl.Com. 480. The natureand extent of this visitatorial power has been expounded

Page 17 U. S. 674

with admirable fulness and accuracy by Lord Holt in one of hismost celebrated judgments.Phillips v. Bury, 1 Lord Raym.5, S. C. 2 T.R. 346. And of common right, by the dotation, thefounder and his heirs are the legal visitors, unless the founderhas appointed and assigned another person to be visitor. For thefounder may, if he please, at the time of the endowment, part withhis visitatorial power, and the person to whom it is assigned will,in that case, possess it in exclusion of the founder's heirs. 1Bl.Com. 482. This visitatorial power is therefore an hereditamentfounded in property, and valuable, in intendment of law, and standsupon the maxim that he who gives his property has a right toregulate it in future. It includes also the legal right ofpatronage, for as Lord Holt justly observes, "patronage andvisitation are necessary consequents one upon another." Notechnical terms are necessary to assign or vest the visitatorialpower; it is sufficient if, from the nature of the duties to beperformed by particular persons under the charter it can beinferred that the founder meant to part with it in their favor; andhe may divide it among various persons, or subject it to anymodifications or control, by the fundamental statutes of thecorporation. But where the appointment is given in general terms,the whole power vests in the appointee.Eden v. Foster, 2P.Wms. 325;Attorney General v. Middleton, 2 Ves. 327;St. Johns College v. Todington, 1 Bl.Rep. 84., S. C. 2Burr. 200;Attorney General v. Clare College, 3 Atk. 662;S. C. 1 Ves. 78. In the construction

Page 17 U. S. 675

of charters, too, it is a general rule that if the objects ofthe charity are incorporated, as for instance the master andfellows of a college or the master and poor of a hospital, thevisitatorial power, in the absence of any special appointment,silently vests in the founder and his heirs. But where Trustees orGovernors are incorporated to manage the charity, the visitatorialpower 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, 10Co. 23, 31.

When a private eleemosynary corporation is thus created by thecharter of the Crown, it is subject to no other control on the partof the Crown than what is expressly or implicitly reserved by thecharter itself. Unless a power be reserved for this purpose, theCrown cannot, in virtue of its prerogative, without the consent ofthe corporation, alter or amend the charter or divest thecorporation of any of its franchises, or add to them, or add to, ordiminish the number of the trustees, or remove any of the members,or change or control the administration of the charity, or compelthe corporation to receive a new charter. This is the uniformlanguage of the authorities, and forms one of the most stubborn andwell 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 tothe general law of the land. It may forfeit its corporatefranchises by misuser or nonuser

Page 17 U. S. 676

of them. I t is subject to the controlling authority of itslegal visitor, who, unless restrained by the terms of the charter,may amend and repeal its statutes, remove its officers, correctabuses, and generally superintend the management of the trusts.Where, indeed, the visitatorial power is vested in the Trustees ofthe charity in virtue of their incorporation, there can be noamotion of them from their corporate capacity. But they are not,therefore, placed beyond the reach of the law. As managers of therevenues of the corporation, they are subject to the generalsuperintending power of the court of chancery, not as itselfpossessing a visitatorial power, or a right to control the charity,but as possessing a general jurisdiction, in all cases of an abuseof trust, to redress grievances and suppress frauds. [Footnote 1] And where a corporation is a meretrustee of a charity, a court of equity will go yet further, andthough it cannot appoint or remove a corporator, it will, yet, in acase of

Page 17 U. S. 677

gross fraud or abuse of trust, take away the trust from thecorporation and vest it in other hands.Mayor, &c. ofCoventry 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 thenature, rights, and duties of eleemosynary corporations growing outof the common law. We may now proceed to an examination of theoriginal charter of Dartmouth College.

It begins by a recital, among other things that the Rev. EleazerWheelock, of Lebanon, in Connecticut, about the year 1754, at hisown expense, on his own estate, set on foot an Indian charityschool, and, by the assistance of other persons, educated a numberof the children of the Indians, and employed them as missionariesand schoolmasters among the savage tribes; that the design becamereputable among the Indians, so that more desired the education oftheir children at the school than the contributions in the Americancolonies would support; that the said Wheelock thought it expedientto endeavor to procure contributions in England, and requested theRev. Nathaniel Whitaker to go to England as his attorney to solicitcontribution, and also solicited the Earl of Dartmouth and othersto receive the contributions and become trustees thereof, whichthey cheerfully agreed to; and he constituted them trusteesaccordingly, by a power of attorney, and they testified theiracceptance by a sealed instrument,that the said Wheelock alsoauthorized the Trustees to fix and determine

Page 17 U. S. 678

upon the place for the said school, and, to enable themunderstandingly to give the preference, laid before them theseveral offers of the governments in America inviting thesettlement of the school among them; that a large number of theproprietors of lands in the western parts of New Hampshire, to aidthe design, andconsidering that the same school might beenlarged 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,providedthe school should be settled in the western part of saidprovince; that the trustees thereupon gave a preference to thewestern part of said province,

brk:

lying on Connecticut River, as a situation most convenient forsaid school;that the said Wheelock further represented thenecessity for a legal incorporation, in order to the safety andwellbeing of said seminary, and its being capable of the tenure anddisposal of lands and bequests for the use of the same; thatin the infancy of said institution,certain gentlemen whom hehad already nominated in his last will (which he hadtransmitted to the Trustees in England)to be Trustees inAmerica should be the corporation now proposed, and lastly thatthere were already large contributions for said school in the handsof the Trustees in England, and further success might beexpected, for which reason the said Wheelock desired they might beinvested with all that power therein which could consist with theirdistance from the same. The charter, after these recitals, declaresthat the King,considering the premises, and being willingto

Page 17 U. S. 679

encourage the charitable design, and that the best means ofeducation might be established in New Hampshire for the benefitthereof, does, of hisspecial grace, certain knowledge andmere motion, ordain and grant that there be a Collegeerected in New Hampshire by the name of Dartmouth College, for theeducation and instruction of youth of the Indian tribesandalso of English youth and others; thatthe Trustees ofsaid College shall be a corporation forever, by the name of theTrustees of Dartmouth College; that the then Governor of NewHampshire, the said Wheelock, and ten other persons, speciallynamed in the charter, shall be Trustees of the said College, andthatthe whole number of Trustees shall forever thereafterconsist of twelve, and no more, that the said corporationshall have power to sue and to be sued by their corporate name, andto acquire and hold forthe use of the said DartmouthCollege, lands, tenements, hereditaments and franchises; toreceive, purchase and build any houses forthe use of saidCollege, in such town in the western part of New Hampshire, asthe Trustees, or a major part of them, shall, by a writteninstrument, agree on, and to receive, accept and dispose of anylands, goods, chattels, rents, gifts, legacies, &c., notexceeding the yearly value of six thousand pounds. It furtherdeclares that the Trustees, or a major part of them, regularlyconvened (for which purpose seven shall form a quorum),shall have authority to appoint and remove the professors, tutorsand other officers of the College, and to pay them, and also suchmissionaries andschoolmasters as shall be employed bythe Trustees for instructing the Indians, salaries and

Page 17 U. S. 680

allowances, as well as other corporate expenses, out of thecorporate funds. It further declares that, thesaidTrustees, 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 toelect and appoint other Trustees intheir stead, so that when the whole number shall be complete oftwelve Trustees, eight shall be resident freeholders ofNew Hampshire, and seven of the whole number laymen. It furtherdeclares that the Trustees shall have power, from time to time, tomake and establish rules, ordinances and laws for the government ofthe College not repugnant to the laws of the land, and to confercollegiate degrees. It further appoints the said Wheelock, whom itdenominates "the founder of the College," to be President of theCollege, with authority to appoint his successor, who shall bePresident, until disapproved of by the Trustees. It then concludeswith a direction that it shall be the duty of the President totransmit to the Trustees in England, so long as they shouldperpetuate their Board, and as there should be Indian nativesremaining to be proper objects of the bounty, an annual account ofall the disbursements from the donations in England, and of thegeneral plans and prosperity of the institution.

Such are the most material clauses of the charter. It isobservable, in the first place, that no endowment whatever is givenby the Crown, and no power is reserved to the Crown or governmentin any manner to alter, amend or control the charter. It is alsoapparent

Page 17 U. S. 681

from the very terms of the charter that Dr. Wheelock isrecognised as the founder of the College, and that the charter isgranted upon his application, and that the Trustees were in factnominated by him. In the next place, it is apparent that theobjects of the institution are purely charitable, for thedistribution 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 -- butin this respect it was just as much public before as after theincorporation. The only effect of the charter was to givepermanency to the design by enlarging the sphere of its action andgranting a perpetuity of corporate powers and franchises, thebetter to secure the administration of the benevolent donations. Asfounder, too, Dr. Wheelock and his heirs would have been completelyclothed with the visitatorial power; but the whole government andcontrol, as well of the officers as of the revenues of the College,being with his consent assigned to the Trustees in then corporatecharacter, the visitatorial power, which is included in thisauthority, rightfully devolved on the Trustees. As managers of theproperty and revenues of the corporation, they were amenable to thejurisdiction of the judicial tribunals of the State; but asvisitors, their discretion was limited only by the charter, andliable to no supervision or control, at least unless it wasfraudulently misapplied.

From this summary examination it follows that Dartmouth Collegewas, under its original charter, a private eleemosynarycorporation, endowed with

Page 17 U. S. 682

the usual privileges and franchises of such corporations, andamong others, with a legal perpetuity, and was exclusively underthe government and control of twelve Trustees, who were to beelected and appointed, from time to time by the existing Board asvacancies or removals should occur.

We are now led to the consideration of the first question in thecause -- whether this charter is a contract within the clause ofthe Constitution prohibiting the States from passing any lawimpairing the obligation of contracts. In the case ofFletcher v.Peck, 6 Cranch 87,10 U. S. 136,this Court laid down its exposition of the word "contract" in thisclause in the following manner:

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

This language is perfectly unambiguous, and was used inreference to a grant of land by the Governor of a State under alegislative act. It determines in the most unequivocal manner thatthe grant of a State is a contract, within the clause of

Page 17 U. S. 683

the Constitution now in question, and that it implies a contractnot to reassume the rights granted;a fortiori thedoctrine applies to a charter or grant from the King.

But it is objected that the charter of Dartmouth College is nota contract contemplated by the Constitution, because no valuableconsideration passed to the King as an equivalent for the grant, itpurporting to be grantedex mero motu, and further that nocontracts merely voluntary are within the prohibitory clause. Itmust be admitted that mere executory contracts cannot be enforcedat law unless there be a valuable consideration to sustain them,and the Constitution certainly did not mean to create any newobligations or give any new efficacy to nude pacts. But it must, onthe other hand, be also admitted that the Constitution did intendto preserve all the obligatory force of contracts which they haveby the general principles of law. Now when a contract has oncepassed,bona fide, into grant, neither the King nor anyprivate person who may be the grantor can recall the grant of theproperty, although the conveyance may have been purely voluntary. Agift, completely executed, is irrevocable. The property conveyed byit becomes, as against the donor, the absolute property of thedonee, and no subsequent change of intention of the donor canchange the rights of the donee. 2 Bl.Com. 441, Jenk.Cent. 104. Anda gift by the Crown of incorporeal hereditaments, such as corporatefranchises, when executed, comes completely

Page 17 U. S. 684

within the principle, and is, in the strictest sense of theterms, a grant. 2 Bl.Com. 317, 346; Shep.Touch. ch. 12, p. 227. Wasit ever imagined that land voluntarily granted to any person by aState was liable to be resumed at its own good pleasure? Such apretension would, under any circumstances, be truly alarming, butin a country like ours, where thousands of land titles had theirorigin in gratuitous grants of the States, it would go far to shakethe foundations of the best settled estates. And a grant offranchises is not, in point of principle, distinguishable from agrant of any other property. If, therefore, this charter were apure donation, when the grant was complete and accepted by thegrantees, it involved a contract that the grantees should hold, andthe grantor should not reassume the grant, as much as if it hadbeen founded on the most valuable consideration.

But it is not admitted that this charter was not granted forwhat the law deems a valuable consideration. For this purpose, itmatters not how trifling the consideration may be -- a pepper-cornis as good as a thousand dollars. Nor is it necessary that theconsideration should be a benefit to the grantor. It is sufficientif it import damage or loss, or forbearance of benefit, or any actdone or to be done, on the part of the grantee. It is unnecessaryto 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 thecases there cited.

With these principles in view, let us now examine

Page 17 U. S. 685

the terms of this charter. It purports, indeed, on its face, tobe granted "of the special grace, certain knowledge andmeremotion" of the King, but these words were introduced for avery different purpose from that now contended for. It is a generalrule of the common law (the reverse of that applied in ordinarycases) that a grant of the King, at the suit of the grantee, is tobe construed most beneficially for the King and most strictlyagainst the grantee. Wherefore it is usual to insert in the King'sgrants a clause that they are made not at thesuit of thegrantee, but of the special grace, certain knowledge and meremotion of the King, and then they receive a more liberalconstruction. This is the true object of the clause in question, aswe 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 inconsiderationof the premises in the introductoryrecitals.

Now among these recitals it appears that Dr. Wheelock hadfounded a charity school at his own expense, on his own estate;that divers contributions had been made in the colonies by othersfor its support; that new contributions had been made, and weremaking, in England, for this purpose, and were in the hands ofTrustees appointed by Dr. Wheelock to act in his behalf; that Dr.Wheelock had consented to have the school established at such otherplace as the Trustees should select; that offers had been made byseveral of the governments in America, inviting the

Page 17 U. S. 686

establishment of the school among them; that offers of land hadalso been made by divers proprietors of lands in the western partsof New Hampshire if the school should be established there; thatthe Trustees had finally consented to establish it in NewHampshire; and that Dr. Wheelock represented that, to effectuatethe purposes of all parties, an incorporation was necessary. Can itbe truly said that these recitals contain no legal consideration ofbenefit to the Crown, or of forbearance of benefit on the otherside? Is there not an implied contract by Dr. Wheelock, if acharter is granted, that the school shall be removed from hisestate to New Hampshire?; and that he will relinquish all hiscontrol over the funds collected and to be collected in Englandunder his auspices and subject to his authority?; that he willyield up the management of his charity school to the Trustees ofthe College?; that he will relinquish all the offers made by otherAmerican governments and devote his patronage to this institution?It will scarcely be denied that he gave up the right any longer tomaintain the charity school already established on his own estate,and that the funds collected for its use and subject to hismanagement were yielded up by him as an endowment of the College.The very language of the charter supposes him to be the legal ownerof the funds of the charity school, and, in virtue of thisendowment, declares him the founder of the College. It matters notwhether the funds were great or small; Dr. Wheelock had procuredthem by his own influence, and they were under his control, to beapplied to the

Page 17 U. S. 687

support of his charity school, and when he relinquished thiscontrol, he relinquished a right founded in property acquired byhis labors. Besides, Dr. Wheelock impliedly agreed to devote hisfuture services to the College, when erected, by becoming Presidentthereof at a period when sacrifices must necessarily be made toaccomplish the great design in view. If, indeed, a pepper-corn be,in the eye of the law, of sufficient value to found a contract, asupon a valuable consideration, are these implied agreements, andthese relinquishments of right and benefit, to be deemed whollyworthless? It has never been doubted that an agreement not toexercise a trade in a particular place was a sufficientconsideration to sustain a contract for the payment of money;afortiori, 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 abenefice, which cannot be legally sold to the intended incumbent. 2Bl.Com. 22; Christian's note.

In respect to Dr. Wheelock, then, if a consideration benecessary to support the charter as a contract, it is to be foundin the implied stipulations on his part in the charter itself. Herelinquished valuable rights and undertook a laborious office inconsideration of the grant of the incorporation.

Page 17 U. S. 688

This is not all. A charter may be granted upon an executory, aswell as an executed or present, consideration. When it is grantedto persons who have not made application for it, until theiracceptance thereof, the grant is yetin fieri. Upon theacceptance, there is an implied contract on the part of thegrantees, in consideration of the charter, that they will performthe duties, and exercise the authorities conferred by it. This wasthe doctrine asserted by the late learned Mr. Justice Buller in amodern case.Rex v. Pasmore, 3 T.R. 199, 239, 246. Hethere said,

"I do not know how to reason on this point better than in themanner urged by one of the relator's counsel, who considered thegrant of incorporation to be a compact between the Crown and acertain number of the subjects, the latter of whom undertake, inconsideration of the privileges which are bestowed, to exertthemselves for the good government of the place,"

(i.e., the place incorporated). It will not bepretended that if a charter be granted for a bank, and thestockholders pay in their own funds, the charter is to be deemed agrant without consideration, and therefore, revocable at thepleasure of the grantor. Yet here, the funds are to be managed andthe services performed exclusively for the use and benefit of thestockholders themselves. And where the grantees are mere trusteesto perform services without reward, exclusively for the benefit ofothers, for public charity, can it be reasonably argued that theseservices are less valuable to the government than if performed forthe private emolument of

Page 17 U. S. 689

the Trustees themselves? In respect then to the Trustees also,there was a valuable consideration for the charter, theconsideration of services agreed to be rendered by them inexecution of a charity, from which they could receive no privateremuneration.

There is yet another view of this part of the case whichdeserves the most weighty consideration. The corporation wasexpressly created for the purpose of distributing in perpetuity thecharitable donations of private benefactors. By the terms of thecharter, the Trustees, and their successors, in their corporatecapacity, were to receive, hold and exclusively manage all thefunds so contributed. The Crown, then, upon the face of thecharter, pledged its faith that the donations of privatebenefactors should be perpetually devoted to their originalpurposes, without any interference on its own part, and should beforever administered by the Trustees of the corporation, unless itscorporate franchises should be taken away by due process of law.From the very nature of the case, therefore, there was an impliedcontract on the part of the Crown with every benefactor that, if hewould give his money, it should be deemed a charity protected bythe charter, and be administered by the corporation according tothe general law of the land. As soon, then, as a donation was madeto the corporation, there was an implied contract, springing up andfounded on a valuable consideration that the Crown would not revokeor alter the charter or change its administration without theconsent of the corporation. There was also an implied contractbetween the corporation itself and every benefactor,

Page 17 U. S. 690

upon a like consideration, that it would administer his bountyaccording to the terms and for the objects stipulated in thecharter.

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

And here we might pause; but there is yet remaining another viewof the subject which cannot consistently be passed over withoutnotice. It seems to be assumed by the argument of the defendant'scounsel that there is no contract whatsoever, in virtue of thecharter, between the Crown and the corporation itself. But itdeserves consideration whether this assumption can be sustainedupon a solid foundation.

If this had been a new charter, granted to an existingcorporation, or a grant of lands to an existing corporation, therecould not have been a doubt that the grant would have been anexecuted contract with the corporation -- as much so as if it hadbeen to any private person. But it is supposed that as thiscorporation was not then in existence, but was created, and itsfranchises bestowed,uno flatu; the charter cannot beconstrued a contract, because there was no personin rerumnatura with whom it might be made. Is this, however, a justand legal view of the

Page 17 U. S. 691

subject? If the corporation had no existence so as to become acontracting party, neither had it for the purpose of receiving agrant of the franchises. The truth is that there may be a priorityof operation of things in the same grant, and the law distinguishesand gives such priority, wherever it is necessary to effectuate theobjects of the grant.Case of Sutton's Hospital, 10 Co.23;Buckland v. Fowcher, cited 10 Co. 27, 28, andrecognised inAttorney General v. Bowyer, 3 Ves.Jun. 714,726, 727, S. P. Highmore on Mortm. 200, &c. From the nature ofthings, the artificial person called a corporation must be createdbefore it can be capable of taking anything. When, therefore, acharter is granted and it brings the corporation into existencewithout any act of the natural persons who compose it, and givessuch corporation any privileges, franchises or property, the lawdeems the corporation to be first brought into existence, and thenclothes it with the granted liberties and property. When, on theother hand, the corporation is to be brought into existence by somefuture acts of the corporators, the franchises remain in abeyanceuntil such acts are done, and, when the corporation is brought intolife, the franchises instantaneously attach to it. There may be, inintendment of law, a priority of time, even in an instant, for thispurpose. And if the corporation have an existence before the grantof its other franchises attaches, what more difficulty is there indeeming the grant of these franchises a contract with it than ifgranted by another instrument at a subsequent period?

It behooves those also who hold that a grant to a corporationnot then in existence is incapable

Page 17 U. S. 692

of being deemed a contract on that account to consider whetherthey do not, at the same time, establish that the grant itself is anullity for precisely the same reason. Yet such a doctrine wouldstrike us all, as pregnant with absurdity, since it would provethat an act of incorporation could never confer any authorities orrights or property on the corporation it created. It may beadmitted that two parties are necessary to form a perfect contract,but it is denied that it is necessary that the assent of bothparties must be at the same time. If the legislature werevoluntarily to grant land in fee to the first child of A. to behereafter born, as soon as such child should be born, the estatewould vest in it. Would it be contended that such grant, when ittook effect, was revocable, and not an executed contract, upon theacceptance of the estate? The same question might be asked in acase of a gratuitous grant by the King or the legislature to A. forlife, and afterwards, to the heirs of B., who is then living. Takethe case of a bank, incorporated for a limited period upon theexpress condition that it shall pay out of its corporate funds acertain sum as the consideration for the charter, and, after thecorporation is organized, a payment duly made of the sum out of thecorporate funds; will it be contended that there is not asubsisting contract between the government and the corporation, bythe matters thus arisingex post facto, that the chartershall not be revoked, during the stipulated period? Suppose, an actdeclaring that all persons, who should thereafter pay into thepublic treasury a stipulated sum should be tenants in common ofcertain

Page 17 U. S. 693

lands belonging to the State, in certain proportions; if aperson, afterwards born, pays the stipulated sum into the treasury,is it less a contract with him than it would be with a personin esse at the time the act passed? We must admit thatthere may be future springing contracts in respect to persons notnowin esse or we shall involve ourselves in inextricabledifficulties. And if there may be, in respect to natural persons,why not also in respect to artificial persons, created by the lawfor the very purpose of being clothed with corporate powers? I amunable to distinguish between the case of a grant of land or offranchises to an existing corporation and a like grant to acorporation brought into life for the very purpose of receiving thegrant. As soon as it isin esse and the franchises andproperty become vested and executed in it, the grant is just asmuch an executed contract as if its prior existence had beenestablished for a century.

Supposing, however that in either of the views which have beensuggested the charter of Dartmouth College is to be deemed acontract; 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 thatclause was never intended to apply to mere contracts of civilinstitution, such as the contract of marriage, or to grants ofpower to State officers, or to contracts relative to their offices,or to grants of trust to be exercised for purposes merely public,where the grantees take no beneficial interest.

It is admitted that the State legislatures have

Page 17 U. S. 694

power to enlarge, repeal and limit the authorities of publicofficers, in their official capacities, in all cases where theconstitutions of the States respectively do not prohibit them; andthis, among others, for the very reason that there is no express orimplied contract that they shall always, during their continuancein office, exercise such authorities. They are to exercise themonly during the good pleasure of the legislature. But when thelegislature makes a contract with a public officer, as in the caseof a stipulated salary for his services during a limited period,this, during the limited period, is just as much a contract withinthe purview of the constitutional prohibition as a like contractwould be between two private citizens. Will it be contended thatthe legislature of a State can diminish the salary of a judgeholding his office during good behavior? Such an authority hasnever yet been asserted, to our knowledge. It may also be admittedthat corporations for mere public government, such as towns, citiesand counties, may in many respects be subject to legislativecontrol. But it will hardly be contended that, even in respect tosuch corporations, the legislative power is so transcendent that itmay, at its will, take away the private property of the corporationor change the uses of its private funds, acquired under the publicfaith. Can the legislature confiscate to its own use the privatefunds which a municipal corporation holds under its charter withoutany default or consent of the corporators? If a municipalcorporation be capable of holding devises and legacies tocharitable uses (as may municipal corporations

Page 17 U. S. 695

are), does the legislature, under our forms of limitedgovernment, possess the authority to seize upon those funds andappropriate them to other uses at its own arbitrary pleasure,against the will of the donors and donees? From the very nature ofour governments, the public faith is pledged the other way, andthat pledge constitutes a valid compact, and that compact issubject only to judicial inquiry, construction and abrogation. ThisCourt have already had occasion, in other causes, to express theiropinion on this subject, and there is not the slightest inclinationto retract it.Terrett v.Taylor, 9 Cranch 43;Town ofPawlet v. Clark, 9 Cranch 292.

As to the case of the contract of marriage, which the argumentsupposes not to be within the reach of the prohibitory clause,because it is matter of civil institution, I profess not to feelthe weight of the reason assigned for the exception. In a legalsense, all contracts recognised as valid in any country may beproperly said to be matters of civil institution, since they obtaintheir obligation and constructionjure loci contractus.Titles to land constituting part of the public domain, acquired bygrants under the provisions of existing laws by private persons,are certainly contracts of civil institution. Yet no one eversupposed that, when acquiredbona fide, they were notbeyond the reach of legislative revocation. And so, certainly, isthe established doctrine of this Court.Terret v.Taylor, 9 Cranch 43;Town ofPawlet v. Clark, 9 Cranch 292. Agenerallaw regulating divorces from the contract of marriage, like a lawregulating

Page 17 U. S. 696

remedies in other cases of breaches of contracts, is notnecessarily a law impairingthe obligation of such acontract.Holmes v. Lansing, 3 Johns.Cas. 73. It maybe the only effectual mode of enforcing the obligations of thecontract on both sides. A law punishing a breach of a contract, byimposing a forfeiture of the rights acquired under it, ordissolving it because the mutual obligations were no longerobserved, is in no correct sense a law impairing the obligations ofthe contract. Could a law, compelling a specific performance, bygiving a new remedy, be justly deemed an excess of legislativepower? Thus far the contract of marriage has been considered withreference to general laws regulating divorces upon breaches of thatcontract. But if the argument means to assert that the legislativepower to dissolve such a contract, withoutany breach on eitherside, against the wishes of the parties, and without anyjudicial inquiry to ascertain a breach, I certainly am not preparedto admit such a power, or that its exercise would not entrench uponthe prohibition of the Constitution. If, under the faith ofexisting laws, a contract of marriage be duly solemnized, or amarriage settlement be made (and marriage is always in law avaluable consideration for a contract), it is not easy to perceivewhy a dissolution of its obligations, without any default or assentof the parties, may not as well fall within the prohibition as anyother contract for a valuable consideration. A man has just as gooda right to his wife as tothe property acquired under amarriage

Page 17 U. S. 697

contract. He has a legal right to her society and her fortune,and to divest such right, without his default and against his will,would be as flagrant a violation of the principles of justice asthe confiscation of his own estate. I leave this case, however, tobe settled when it shall arise. I have gone into it because it wasurged with great earnestness upon us, and required a reply. It issufficient now to say that, as at present advised, the argumentderived from this source does not press my mind with any new andinsurmountable difficulty.

In respect also to grants and contracts, it would be far toonarrow a construction of the Constitution to limit the prohibitoryclause to such only where the parties take for their own privatebenefit. A grant to a private Trustee, for the benefit of aparticularcestui que trust or for any special, private orpublic charity cannot be the less a contract because the Trusteetakes nothing for his own benefit. A grant of the next presentationto a church is still a contract, although it limit the grantee to amere right of nomination or patronage. 2 Bl.Com. 21. The fallacy ofthe argument consists in assuming the very ground in controversy.It is not admitted that a contract with a Trustee is, in its ownnature, revocable, whether it be for special or general purposes,for public charity or particular beneficence. A private donationvested in a trustee for objects of a general nature does notthereby become a public trust which the government may, at itspleasure, take from the Trustee, and administer

Page 17 U. S. 698

in its own way. The truth is that the government has no power torevoke a grant,even of its own funds, when given to aprivate person, or a corporation, for special uses It cannot recallits own endowments, granted to any hospital or College, or city ortown, for the use of such corporations. The only authorityremaining to the government is judicial, to ascertain the validityof 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 therewould otherwise be a failure of justice.

Another objection growing out of and connected with that whichwe have been considering is that no grants are within theconstitutional prohibition except such as respectpropertyin the strict sense of the term, that is to say, beneficialinterests in lands, tenements and hereditaments, &c., which maybe sold by the grantees for their own benefit, and that grants offranchises, immunities and authorities not valuable to the parties,as property, are excluded from its purview. No authorityhas been cited to sustain this distinction, and no reason isperceived to justify its adoption. There are many rights,franchises and authorities which are valuable in contemplation oflaw where no beneficial interest can accrue to the possessor. Agrant of the next presentation to a church, limited to the granteealone, has been already mentioned. A power of appointment, reservedin a marriage settlement, either to a party or a stranger, toappoint uses in favor of third persons, without compensation, isanother instance.

Page 17 U. S. 699

A grant of lands to a Trustee, to raise portions or pay debtsis, in law, a valuable grant, and conveys a legal estate. Even apower given by will to executors to sell an estate for payment ofdebts is, by the better opinions and authority, coupled with atrust, and capable of survivorship. [Footnote 2] Many dignities and offices existing at commonlaw are merely honorary, and without profit, and sometimes areonerous. Yet a grant of them has never been supposed the less acontract on that account. In respect to franchises, whethercorporate or not, which include a pernancy of profits, such as aright of fishery, or to hold a ferry, a market or a fair, or toerect a turnpike, bank or bridge, there is no pretence to say thatgrants of them are not within the Constitution. Yet they may, inpoint of fact, be of no exchangeable value to the owners. They maybe worthless in the market. The truth, however, is that allincorporeal 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 legalremedies to support and recover them, in case of any injury,obstruction or disseisin of them. Whenever they are the subjects ofa contract or grant, they are just as much within the reach of theConstitution as any other grant.

Page 17 U. S. 700

Nor is there any solid reason why a contract for the exercise ofa mere authority should not be just as much guarded as a contractfor the use and dominion of property. Mere naked powers which areto be exercised for the exclusive benefit of the grantor arerevocable by himfor that very reason. But it is otherwisewhere a power is to be exercised in aid of a right vested in thegrantee. We all know that a power of attorney, forming apart of a security upon the assignment of a chose in action, is notrevocable by the grantor. For it then sounds in contract, and iscoupled 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 beconveyed in trust for the grantor, the estate is irrevocable in thegrantee, although he can take no beneficial interest for himself.Many of the best settled estates stand upon conveyances of thisnature, and there can be no doubt that such grants are contractswithin the prohibition in question.

In respect tocorporate franchises, they are, properlyspeaking, legal estates, vested in the corporation itself, as soonas it isin esse. They are not mere naked powers grantedto the corporation, but powers coupled with an interest. Theproperty of the corporation rests upon the possession of itsfranchises, and whatever may be thought as to the corporators, itcannot be denied that the corporation itself has a legal interestin them. It may sue and be sued for them. Nay, more, this veryright is one of its ordinary

Page 17 U. S. 701

franchises. "It is likewise a franchise," says Mr. JusticeBlackstone,

"for a number of persons to be incorporated and subsist as abody politic, with power to maintain perpetual succession, and doother corporate acts, and each individual member of suchcorporation 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 thelegal difficulty of these franchises being considered as valuablehereditaments or property, the counsel for the defendant are drivento contend that the corporators or Trustees are mere agents of thecorporation, in whom no beneficial interest subsists, and sonothing but a naked power is touched by removing them from thetrust, and then to hold the corporation itself a mere ideal being,capable indeed of holding property or franchises, but having nointerest in them which can be the subject of contract. Neither ofthese positions is admissible. The former has been alreadysufficiently considered, and the latter may be disposed of in a fewwords. The corporators are not mere agents, but have vested rightsin their character as corporators. The right to be a freeman of acorporation is a valuable temporal right. It is a right of votingand acting in the corporate concerns, which the law recognises andenforces, and for a violation of which it provides a remedy. It isfounded on the same basis as the right of voting in publicelections; it is as sacred a right, and whatever might have beenthe prevalence of former doubts, since the time of Lord Holt, sucha right has always been deemed a valuable franchise or privilege.Ashby v. White, 2 Lord Raym. 938; 1 Kyd on Corp. 16.

Page 94 U. S. 702

This reasoning, which has been thus far urged applies with fullforce to the case of Dartmouth College. The franchises granted bythe charter were vested in the Trustees, in their corporatecharacter. The lands and other property, subsequently acquired,were held by them in the same manner. They were the privatedemesnes of the corporation, held by it not, as the argumentsupposes, for the use and benefit of the people of New Hampshire,but, as the charter itself declares, "for the use of DartmouthCollege." There were not, and in the nature of things, could notbe, any othercestui que use entitled to claim thosefunds. They were, indeed, to be devoted to the promotion of pietyand learning, not at large, but in thatCollege and theestablishments connected with it; and the mode in which the charitywas to be applied, and the objects of it, were left solely to theTrustees, who were the legal Governors and administrators of it. Noparticular person in New Hampshire possessed a vested right in thebounty, nor could he force himself upon the Trustees as a properobject. The legislature itself could not deprive the Trustees ofthe corporate funds, nor annul their discretion in the applicationof them, nor distribute them among its its own favorites. Could theLegislature of New Hampshire have seized the land given by theState of Vermont to the corporation and appropriated it to usesdistinct from those intended by the charity, against the will ofthe Trustees? This question cannot be answered in the affirmativeuntil it is established that the legislature may lawfully take theproperty of A. and give it to B., and if it

Page 17 U. S. 703

could not take away or restrain the corporatefunds,upon what pretence can it take away or restrain the corporatefranchises? Without the franchises, the funds could not beused for corporate purposes, but without the funds, the possessionof the franchises might still be of inestimable value to theCollege, and to the cause of religion and learning.

Thus far, the rights of the corporation itself in respect to itsproperty and franchises have been more immediately considered. Butthere are other rights and privileges, belonging to the Trusteescollectively and severally, which are deserving of notice. They areintrusted with the exclusive power to manage the funds, to choosethe officers, and to regulate the corporate concerns according totheir own discretion. Thejus patronatus is vested inthem. The visitatorial power, in its most enlarged extent, alsobelongs to them. When this power devolves upon the founder of acharity, it is an hereditament, descendible in perpetuity to hisheirs, and in default of heirs, it escheats to the government.Rex v. St. Catherine's Hall, 4 T.R. 233. It is a valuableright, founded in property, as much so as the right of patronage inany other case. It is a right which partakes of a judicial nature.May not the founder as justly contract for the possession of thisright, in return for his endowment, as for any other equivalent?and if, instead of holding it as an hereditament, he assigns it inperpetuity to the Trustees of the corporation, is it less avaluable hereditament in their hands? The right is not merely acollective right in all the Trustees,

Page 17 U. S. 704

each of them also has a franchise in it. Lord Holt says,

"it is agreeable to reason and the rules of law that a franchiseshould be vested in the corporation aggregate, and yet the benefitredound to the particular members and be enjoyed by them in theirprivate capacities. Where the privilege of election is used byparticular persons, it is a particular right vested in eachparticular man."

Ashby v. White, 2 Lord Raym. 938, 952;AttorneyGeneral v. Dixie, 13 Ves. 519. Each of the Trustees had aright to vote in all elections. If obstructed in the exercise ofit, 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 nointerest in the corporate franchises, because it is said that theymay be witnesses in a suit brought against the corporation. Thecase cited at the bar certainly goes the length of asserting that,in a suit brought against a charitable corporation for a recompencefor services performed for the corporation, the Governors,constituting the corporation (but whether intrusted with its fundsor not by the act of incorporation does not appear), are competentwitnesses against the plaintiff.Weller v. Governor of theFoundling Hospital, 1 Peake's N.P.Rep. 153. But assuming thiscase to have been rightly decided (as to which, upon theauthorities, there may be room to doubt), the corporators

Page 17 U. S. 705

being technically parties to the record,Attorney General v.City of London, 3 Bro.Ch.C. 171; S. C. 1 Ves.Jun. 243;Burton v. Hinde, 5 T.R. 174,Nason v. Thatcher, 7Mass.Rep. 398; Phillips on Evid. 42, 52, 57 and notes; 1 Kyd onCorp. 304, &c.; Highmore on Mortm. 514, it does not establishthat, in a suit for the corporate property vested in the Trusteesin their corporate capacity, the Trustees are competent witnesses.At all events, it does not establish that, in a suit for thecorporate franchises to be exercised by the Trustees, or to enforcetheir visitatorial power, the Trustees would be competentwitnesses. On a mandamus to restore a Trustee to his corporate orvisitatorial power, it will not be contended that the Trustee ishimself a competent witness to establish his own rights or thecorporate rights. Yet why not, if the law deems that a Trustee hasno interest in the franchise? The test of interest assumed in theargument proves nothing in this case. It is not enough to establishthat the Trustees are sometimes competent witnesses; it isnecessary to show that they are always so in respect to thecorporate franchises and their own. It will not be pretended that,in a suit for damages for obstruction in the exercise of hisofficial powers, a Trustee is a disinterested witness. Such anobstruction is not adamnum absque injuria. Each Trusteehas a vested right, and legal interest, in his office, and itcannot be divested but by due course of law. The illustration,therefore, lends no new force to the argument, for it does notestablish that, when their own rights

Page 17 U. S. 706

are in controversy, the Trustees have no legal interest in theiroffices.

The principal objections having been thus answered,satisfactorily, at least, to my own mind, it remains only todeclare that my opinion, after the most mature deliberation, isthat the charter of Dartmouth College, granted in 1969, is acontract 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 hasbeen very seriously urged at the bar,viz., that thecharter of Dartmouth College was dissolved at the Revolution, andis therefore a mere nullity. A case before Lord Thurlow has beencited in support of this doctrine.Attorney General v. City ofLondon, 3 Bro.Ch.C. 171; S. C. 1 Ves.Jun. 243. The principalquestion in that case was whether the corporation of William &Mary College, in Virginia (which had received its charter from KingWilliam and Queen Mary) should still be permitted to administer thecharity under Mr. Boyle's will, no interest having passed to theCollege under the will, but it acting as an agent or trustee undera decree in chancery, or whether a new scheme for theadministration of the charity should be laid before the Court. LordThurlow directed a new scheme because the College, belonging to anindependent government, was no longer within the reach of theCourt. And he very unnecessarily added that he could not nowconsider the College as a corporation, or, as another report, 1Ves.Jun. 243, states,

Page 17 U. S. 707

that he could not take notice of it, as a corporation, it nothaving proved its existence, as a corporation, at all. If, by this,Lord Thurlow meant to declare that all charters acquired in Americafrom the Crown, were destroyed by the Revolution, his doctrine isnot law, and if it had been true, it would equally apply to allother grants from the Crown, which would be monstrous. It is aprinciple of the common law which has been recognised as well inthis as in other Courts that the division of an empire works noforfeiture of previously vested rights of property. And this maximis equally consonant with the common sense of mankind and themaxims of eternal justice.Terrett v.Taylor, 9 Cranch 43,13 U. S. 50;Kelly v. Harrison, 5 Johns.Cas. 29;Jackson v.Lunn, 3 Johns.Cas.. 109;Calvin's Case, 7 Co. 27.This objection therefore may be safely dismissed without furthercomment.

The remaining inquiry is whether the acts of the Legislature ofNew Hampshire now in question, or any of them, impair theobligations of the charter of Dartmouth College. The attemptcertainly is to force upon the corporation a new charter, againstthe will of the corporators. Nothing seems better settled at thecommon law than the doctrine that the Crown cannot force upon aprivate corporation a new charter, or compel the old members togive up their own franchises, or to admit new members into thecorporation.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 aman

Page 17 U. S. 708

to become a member of such corporation against his will.Rexv. Dr. Askew, 4 Burr. 2200. As little has it been supposedthat, under our limited governments, the legislature possessed suchtranscendent authority. On one occasion, a very able court heldthat the State legislature had no authority to compel a person tobecome a member of a mere private corporation, created for thepromotion of a private enterprise, because every man had a right torefuse a grant.Ellis v. Marshall, 2 Mass.Rep. 269. Onanother occasion, the same learned Court declared that they wereall satisfied that the rights legally vested in a corporationcannot be controlled or destroyed by any subsequent statute unlessa power for that purpose be reserved to the legislature in theact of incorporation.Wales v. Stetson, 2 Mass.Rep.143, 146. These principles are so consonant with justice, soundpolicy, and legal reasoning that it is difficult to resist theimpression of their perfect correctness. The application of them,however, does not, from our limited authority, properly belong tothe appellate jurisdiction of this Court in this case.

A very summary examination of the acts of New Hampshire willabundantly show that, in many material respects, they change thecharter of Dartmouth College. The Act of the 27th of June, 1816,declares that the corporation known by the name of the Trustees ofDartmouth College shall be called the Trustees of DartmouthUniversity. That the whole number of Trustees shall betwenty-one, a majority

Page 17 U. S. 709

of whom shall form a quorum, that they and their successorsshall hold, use, and enjoy forever all the powers, authorities,rights, property, liberties, privileges and immunities, heretoforeheld, &c., by the Trustees of Dartmouth College, except wherethe act otherwise provides; that they shall also have power todetermine the times and places of their meetings, and manner ofnotifying the same; to organize Colleges in the University; toestablish an institute and elect fellows and members thereof; toappoint and displace officers and determine their duties andcompensation; to delegate the power of supplying vacancies in anyof the offices of the University for a limited term; to passordinances for the government of the students; to prescribe thecourse of education; and to arrange, invest and employ the funds ofthe University. The act then provides for the appointment of aBoard of twenty-five overseers, fifteen of whom shall form aquorum, of whom five are to be suchex officio, and theresidue of the Overseers, as well as the new Trustees, are to beappointed by the Governor and Council. The Board of Overseers are,among other things, to have power, "toinspect andconfirm, ordisapprove andnegative,such votes and proceedings of the Board of Trustees as shall relateto the appointment and removal of President, professors, and otherpermanent officers of the University, and determine their salaries;to the establishment of Colleges and professorships, and theerection of new College buildings." The act then provides that thePresident and professors shall benominated by theTrustees, andappointed by theOverseers,

Page 17 U. S. 710

and shall be liable to be suspended and removed in the samemanner, and thateach of the two Boards of Trustees andOverseers shall have power to suspend and remove any member oftheir respective Boards. The Supplementary Act of the 18th ofDecember, 1816, declares thatnine Trustees shall form aquorum, and thatsix votes at least shall be necessary forthe passage of any act or resolution. The Act of the 26th ofDecember, 1816, contains other provisions not very material to thequestion before us.

From this short analysis, it is apparent that, in substance, anew corporation is created, including the old corporators, with newpowers, and subject to a new control, or that the old corporationis newly organized and enlarged, and placed under an authorityhitherto unknown to it. The Board of Trustees are increased fromtwelve to twenty-one. The College becomes a University. Theproperty vested in the old Trustees is transferred to the new Boardof Trustees, in their corporate capacities. The quorum is no longerseven, butnine. The old Trustees have no longerthe sole right to perpetuate their succession by electing otherTrustees, but thenine new Trustees are, in the firstinstance, to be appointed by the Governor and Council, and the newBoard are then to elect other Trustees from time to time, asvacancies occur. The new Board, too, have the power to suspend orremove any member, so that aminority of the old Board,cooperating with the new Trustees, possess the unlimited power toremove themajority of theold Board. The powers,too, of the corporation are varied. It has authority to organizenew Colleges in

Page 17 U. S. 711

"the University, and to establish an institute, and electfellows and members thereof." A Board of Overseers is created (aboard utterly unknown to the old charter), and is invested with ageneral supervision and negative upon all the most important actsand proceedings of the Trustees. And to give complete effect tothis new authority, instead of the right to appoint, the trusteesare, 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 andauthorities of the Trustees and vitally affecting the interests andorganization of Dartmouth College under its old charter, it isdifficult to conceive what acts, short of an unconditional repealof the charter, could have that effect. If a grant of land orfranchises be made to A., in trust for special purposes, can thegrant be revoked, and a new grant thereof be made to A., B. and C.,in trust for the same purposes, without violating the obligation ofthe first grant? If property be vested by grant in A. and B., forthe use of a College, or an hospital, of private foundation, is notthe obligation of that grant impaired when the estate is taken fromtheir exclusive management and vested in them in common with tenother persons? If a power of appointment be given to A. and B., isit no violation of their right to annul the appointment unless itbe assented to by five other persons, and then confirmed by adistinct body? If a bank or insurance company, by the terms of itscharter, be under the management of directors, elected by thestockholders, would not the

Page 17 U. S. 712

rights acquired by the charter be impaired if the legislatureshould take the right of election from the stockholders and appointdirectors unconnected with the corporation? These questions carrytheir own answers along with them. The common sense of mankind willteach us that all these cases would be direct infringements of thelegal obligations of the grants to which they refer, and yet theyare, with no essential distinction, the same as the case now at thebar.

In my judgment, it is perfectly clear that any act of alegislature which takes away any powers or franchises vested by itscharter in a private corporation, or its corporate officers, orwhich restrains or controls the legitimate exercise of them, ortransfers them to other persons without its assent is a violationof the obligations of that charter. If the legislature mean toclaim such an authority, it must be reserved in the grant. Thecharter of Dartmouth College contains no such reservation, and I amtherefore bound to declare that the acts of the Legislature of NewHampshire now in question do impair the obligations of thatcharter, and are consequently unconstitutional and void.

In pronouncing this judgment, it has not for one moment escapedme how delicate, difficult, and ungracious is the task devolvedupon us. The predicament in which this Court stands in relation tothe nation at large is full of perplexities and embarrassments. Itis called to decide on causes between citizens of different States,between a State and its citizens, and between different States. Itstands, therefore in the midst of

Page 17 U. S. 713

jealousies and rivalries of conflicting parties with the mostmomentous interests confided to its care. Under such circumstances,it never can have a motive to do more than its duty, and I trust itwill always be found to possess firmness enough to do that.

Under these impressions, I have pondered on the case before uswith the most anxious deliberation. I entertain great respect forthe Legislature whose acts are in question. I entertain no lessrespect for the enlightened tribunal whose decision we are calledupon to review. In the examination, I have endeavored to keep mystepssuper antiquas vias of the law, under the guidanceof authority and principle. It is not for judges to listen to thevoice of persuasive eloquence or popular appeal. We have nothing todo, but to pronounce the law as we find it, and, having done this,our justification must be left to the impartial judgment of ourcountry.

Page 17 U. S. 714

[Footnote 1]

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

[Footnote 2]

Co.Litt. 113a; Harg. & Butler's note 2; Sugden on Powers140;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, 4Binn. 7, 31;Attorney General v. Gley, 1 Atk. 356; 1Bac.Abr. 586 (Gwill. edit.).

DUVALL, Justice, dissented.

Upon the suggestion of the plaintiff's counsel that thedefendant had died since the last term, the Court ordered thejudgment to be enterednunc pro tunc as of that term, asfollows:

JUDGMENT. -- This cause came on to be heard on the transcript ofthe record, and was argued by counsel. And thereupon, all andsingular the premises being seen, and by the Court now here fullyunderstood, and mature deliberation being thereupon had,

Page 17 U. S. 715

it appears to this Court that the said acts of the Legislatureof New Hampshire of the 27th of June and of the 18th and 26th ofDecember, Anno Domini 1816, in the record mentioned, are repugnantto the Constitution of the United States, and so not valid, andtherefore that the said Superior Court of Judicature of the Stateof New Hampshire erred in rendering judgment on the said specialverdict in favor of the said plaintiffs, and that the said Courtought to have rendered judgment thereon that the said Trusteesrecover against the said Woodward the amount of damages found andassessed in and by the verdict aforesaid,viz., the sum of$20,000. Whereupon, it is considered, ordered and adjudged by thisCourt now here that the aforesaid judgment of the said SuperiorCourt of judicature of the State of New Hampshire be, and the samehereby is, reversed and annulled. And this Court proceeding torender such judgment in the premises as the said Superior Court ofjudicature ought to have rendered, it is further considered by thisCourt now here that the said Trustees of Dartmouth College dorecover against the said William Woodward the aforesaid sum of$20,000, with costs of suit, and it is by this Court now herefurther ordered that a special mandate do go from this Court to thesaid Superior Court of Judicature to carry this judgment intoexecution.