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17 U.S. 518

          ERROR to the Superior Court of the State of New-Hampshire. This was an action of trover, brought in the state court, in which the plaintiffs in error declared for

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

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

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

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

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at his own expense, on his own estate and plantation, set on foot an Indian charity school, and for several years, through the assistance of well-disposed persons in America, clothed, maintained and educated a number of the children of the Indian natives, with a view to their carrying the Gospel, in their own language, and spreading the knowledge of the great Redeemer, among their savage tribes, and hath actually employed a number of them as missionaries and school-masters in the wilderness, for that purpose: and by the blessing of God upon the endeavors of said Wheelock, the design became reputable among the Indians, insomuch that a large number desired the education of their children in said school, and were also disposed to receive missionaries and school-masters, in the wilderness, more than could be supported by the charitable contributions in these American colonies. Whereupon, the said Eleazar Wheelock thought it expedient, that endeavors should be used to raise contributions from well-disposed persons in England, for the carrying on and extending said undertaking; and for that purpose the said Eleazar Wheelock requested the Rev. Nathaniel Whitaker, now doctor in divinity to go over to England for that purpose, and sent over with him the Rev. Samson Occom, an Indian minister, who had been educated by the said Wheelock. And to enable the said Whitaker to the more successful performance of said work, on which he was sent, said Wheelock gave him a full power of attorney, by which said Whitaker solicited those worthy and generous contributors to the charity, viz.,

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The Right Honorable William, Earl of Dartmouth, the Honorable Sir Sidney Stafford Smythe, Knight, one of the barons of his Majesty's court of exchequer, John Thornton, of Clapham, in the county of Surrey, Esquire, Samuel Roffey, of Lincoln's Inn Fields, in the county of Middlesex, Esquire, Charles Hardy, of the parish of Saint Mary-le-bonne, in said county, Esquire, Daniel West, of Christ's church, Spitalfields, in the county aforesaid, Esquire, Samuel Savage, of the same place, gentleman, Josiah Roberts, of the parish of St. Edmund the King, Lombard Street, London, gentleman, and Robert Keen, of the parish of Saint Botolph, Aldgate, London, gentleman, to receive the several sums of money, which should be contributed, and to be trustees for the contributors to such charity, which they cheerfully agreed to. Whereupon, the said Whitaker did, by virtue of said power of attorney, constitute and appoint the said Earl of Dartmouth, Sir Sidney Stafford Smythe, John Thornton, Samuel Roffey, Charles Hardy and Daniel West, Esquires, and Samuel Savage, Josiah Roberts and Robert Keen, gentlemen, to be trustees of the money which had then been contributed, and which should, by his means, be contributed for said purpose; which trust they have accepted, as by their engrossed declaration of the same, under their hands and seals, well executed, fully appears, and the same has also been ratified, by a deed of trust, well executed by the said Wheelock.

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

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given full power to the said trustees, to fix upon and determine the place for said school, most subservient to the great end in view; and to enable them understandingly, to give the preference, the said Wheelock has laid before the said trustees, the several offers which have been generously made in the several governments in America, to encourage and invite the settlement of said school among them, for their own private emolument, and the increase of learning in their respective places, as well as for the furtherance of the general design in view. And whereas, a large number of the proprietors of lands in the western part of this our province of New Hampshire, animated and excited thereto, by the generous example of his excellency, their governor, and by the liberal contributions of many noblemen and gentlemen in England, and especially by the consideration, that such a situation would be as convenient as any for carrying on the great design among the Indians; and also, considering, that without the least impediment to the said design, the same school may be enlarged and improved to promote learning among the English, and be a means to supply a great number of churches and congregations, which are likely soon to be formed in that new country, with a learned and orthodox ministry; they, the said proprietors, have promised large tracts of land, for the uses aforesaid, provided the school shall be settled in the western part of our said province. And they, the said right honorable, honorable and worthy trustees, before mentioned, having maturely considered the reasons and arguments, in favor of the several places

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proposed, have given the preference to the western part of our said province, lying on Connecticut river, as a situation most convenient for said school.

          And the said Wheelock has further represented a necessity of a legal incorporation, in order to the safety and well-being of said seminary, and its being capable of the tenure and disposal of lands and bequests for the use of the same. And the said Wheelock has also represented, that for many weighty reasons, it will be expedient, at least, in the infancy of said institution, or till it can be accommodated in that new country, and he and his friends be able to remove and settle, by and round about it, that the gentlemen, whom he has already nominated in his last will (which he has transmitted to the aforesaid gentlemen of the trust in England), to be trustees in America, should be of the corporation now proposed. And also, as there are already large collections for said school, in the hands of the aforesaid gentlemen of the trust, in England, and all reasons to believe, from their singular wisdom, piety and zeal to promote the Redeemer's cause (which has already procured for them the utmost confidence of the kingdom), we may expect they will appoint successors in time to come, who will be men of the same spirit, whereby great good may and will accrue many ways to the institution, and much be done, by their example and influence, to encourage and facilitate the whole design in view; for which reason, said Wheelock desires, that the trustees aforesaid may be vested with all that power therein, which can consist with their distance from the same.

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          KNOW YE, THEREFORE, that We, considering the premises, and being willing to encourage the laudable and charitable design of spreading Christian knowledge among the savages of our American wilderness, and also that the best means of education be established in our province of New Hampshire, for the benefit of said province, do, of our special grace, certain knowledge and mere motion, by and with the advice of our counsel for said province, by these presents, will, ordain, grant and constitute, that there be a college erected in our said province of New Hampshire, by the name of Dartmouth College, for the education and instruction of youth of the Indian tribes in this land, in reading, writing and all parts of learning, which shall appear necessary and expedient, for civilizing and christianizing children of pagans, as well as in all liberal arts and sciences, and also of English youth and any others. And the trustees of said college may and shall be one body corporate and politic, in deed, action and name, and shall be called, named and distinguished by the name of the Trustees of Dartmouth College.

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

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knowledge and mere motion, do, by these presents, for us, our heirs and successors, make, ordain, constitute and appoint our trusty and well-beloved John Wentworth, Esq., governor of our said province, and the governor of our said province of New Hampshire for the time being, and our trusty and well-beloved Theodore Atkinson, Esq., now president of our council of our said province, George Jaffrey and Daniel Peirce, Esq'rs, both or our said council, and Peter Gilman, Esq., now speaker of our house of representatives in said province, and William Pitkin, Esq., one of the assistants of our colony of Connecticut, and our said trusty and well-beloved Eleazar Wheelock, of Lebanon, doctor in divinity, Benjamin Pomroy, of Hebroe, James Lockwood, of Weathersfield, Timothy Pitkin and John Smalley, of Farmington, and William Patten, of Hartford, all of our said colony of Connecticut, ministers of the gospel (the whole number of said trustees consisting, and hereafter for ever to consist, of twelve and no more) to be trustees of said Dartmouth College, in this our province of New Hampshire.

          And we do further, of our special grace, certain knowledge and mere motion, for us, our heirs and successors, will, give, grant and appoint, that the said trustees and their successors shall for ever hereafter be, in deed, act and name, a body corporate and politic, and that they, the said body corporate and politic, shall be known and distinguished, in all deeds, grants, bargains, sales, writings, evidences or otherwise howsoever, and in all courts for ever hereafter, plea and be impleaded by the name of the Trustees of Dartmouth College; and that the said corporation,

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by the name aforesaid, shall be able, and in law capable, for the use of said Dartmouth College, to have, get, acquire, purchase, receive, hold, possess and enjoy, tenements, hereditaments, jurisdictions and franchises, for themselves and their successors, in fee-simple, or otherwise howsoever, and to purchase, receive or build any house or houses, or any other buildings, as they shall think needful and convenient, for the use of said Dartmouth College, and in such town in the western part of our said province of New Hampshire, as shall, by said trustees, or the major part of them, he agreed on; their said agreement to be evidenced by an instrument in writing, under their hands, ascertaining the same: And also to receive and dispose of any lands, goods, chattels and other things, of what nature soever, for the use aforesaid: And also to have, accept and receive any rents, profits, annuities, gifts, legacies, donations or bequests of any kind whatsoever, for the use aforesaid; so, nevertheless, that the yearly value of the premises do not exceed the sum of 6000l. sterling; and therewith, or otherwise, to support and pay, as the said trustees, or the major part of such of them as are regularly convened for the purpose, shall agree, the president, tutors and other officers and ministers of said Dartmouth College; and also to pay all such missionaries and school-masters as shall be authorized, appointed and employed by them, for civilizing and christianizing, and instructing the Indian natives of this land, their several allowances; and also their respective annual salaries or allowances, and all such necessary and

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contingent charges, as from time to time shall arise and accrue, relating to the said Dartmouth College: And also, to bargain, sell, let or assign, lands, tenements or hereditaments, goods or chattels, and all other things whatsoever, by the name aforesaid in as full and ample a manner, to all intents and purposes, as a natural person, or other body politic or corporate, is able to do, by the laws or our realm of Great Britain, or of said province of New Hampshire.

          And further, of our special grace, certain knowledge and mere motion, to the intent that our said corporation and body politic may answer the end of their erection and constitution, and may have perpetual succession and continuance for ever, we do, for us, our heirs and successors, will, give and grant unto the Trustees of Dartmouth College, and to their successors for ever, that there shall be, once a year, and every year, a meeting of said trustees, held at said Dartmouth College, at such time as by said trustees, or the major part of them, at any legal meeting of said trustees, shall be agreed on; the first meeting to be called by the said Eleazar Wheelock, as soon as conveniently may be, within one year next after the enrolment of these our letters-patent, at such time and place as he shall judge proper. And the said trustees, or the major part of any seven or more of them, shall then determine on the time for holding the annual meeting aforesaid, which may be altered as they shall hereafter find most convenient. And we further order and direct, that the said Eleazar Wheelock shall notify the time for holding said first meeting, to be called as aforesaid, by sending a letter

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to each of said trustees, and causing an advertisement thereof to be printed in the New Hampshire Gazette, and in some public newspaper printed in the colony of Connecticut. But in case of the death or incapacity of the said Wheelock, then such meeting to be notified in manner aforesaid, by the governor or commander-in-chief of our said province for the time being. And we do also, for us, our heirs and successors, hereby will, give and grant unto the said Trustees of Dartmouth College, aforesaid, and to their successors for ever, that when any seven or more of the said trustees, or their successors, are convened and met together, for the service of said Dartmouth College, at any time or times, such seven or more shall be capable to act as fully and amply, to all intents and purposes, as if all the trustees of said college were personally presentand all affairs and actions whatsoever, under the care of said trustees, shall be determined by the majority or greater number of those seven or more trustees so convened and met together.

          And we do further will, ordain and direct, that the president, trustees, professors, tutors and all such officers as shall be appointed for the public instruction and government of said college, shall, before they undertake the execution of their offices or trusts, or within one year after, take the oaths and subscribe the declaration provided by an act of parliament made in the grst year of King George the First, entitled 'an act for the further security of his majesty's person and government, and the succession of the crown in the heirs of the late Princess Sophia, being

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Protestants, and for the extinguishing the hopes of the pretended Prince of Wales, and his open and secret abettors;' that is to say, the president, before the governor of our said province for the time being, or by one by him empowered to that service, or by the president of our said council, and the trustees, professors, tutors and other officers, before the president of said college for the time being, who is hereby empowered to administer the same; an entry of all which shall be made in the records of said college.

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

          And further, we do, by these presents, for us, our heirs and successors, create, make, constitute, nominate and appoint our trusty and well-beloved Eleazar Wheelock, doctor in divinity, the founder of said

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

          And we do also, for us, our heirs and successors, will, give and grant to the said trustees of said Dartmouth College, and to their successors for ever, or any seven or more of them, convened as aforesaid, that in the case of the ceasing or failure of a president, by any means whatsoever, that the said trustees do elect, nominate and appoint such qualified person as they, or the major part of any seven or more of them, convened for that purpose as above directed, shall think fit, to be president of said Dartmouth College, and to have the care of the education and government of the students as aforesaid; and in case of the ceasing of a president as aforesaid, the senior professor or tutor, being one of the trustees, shall exercise the office of a president, until the trustees shall make choice of and appoint, a president as aforesaid;

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and such professor or tutor, or any three or more of the trustees, shall immediately appoint a meeting of the body of the trustees for the purpose aforesaid. And also we do will, give and grant to the said trustees, convened as aforesaid, that they elect, nominate and appoint so many tutors and professors to assist the president in the education and government of the students belonging thereto, as they the said trustees shall, from time to time, think needful and serviceable to the interests of said Dartmouth College. And also, that the said trustees or their successors, or the major part of any seven or more of them, convened for that purpose as above directed, shall, at any time, displace and discharge from the service of said Dartmouth College, any or all such officers, and elect others in their room and stead, as before directed. And also, that the said trustees, or their successors, or the major part of any seven of them which shall convene for that purpose, as above directed, do, from time to time, as occasion shall require, elect, constitute and appoint a treasurer, a clerk, an usher and a steward for the said Dartmouth College, and appoint to them, and each of them, their respective businesses and trust; and displace and discharge from the service of said college, such treasurer, clerk, usher or steward, and to elect others in their room and stead; which officers so elected, as before directed, we do for us, our heirs and successors, by these presents, constitute and establish in their respective offices, and do give to each and every of them full power and authority to exercise the same in said Dartmouth College, according to the

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directions, and during the pleasure of said trustees, as fully and freely as any like officers in any of our universities, colleges or seminaries of learning in our realm of Great Britain, lawfully may or ought to do. And also, that the said trustees and their successors, or the major part of any seven or more of them, which shall convene for that purpose, as is above directed, as often as one or more of said trustees shall die, or by removal or otherwise shall, according to their judgment, become unfit or incapable to serve the interests of said college, do, as soon as may be after the death, removal or such unfitness or incapacity of such trustee or trustees, elect and appoint such trustee or trustees as shall supply the place of him or them so dying, or becoming incapable to serve the interests of said college; and every trustee so elected and appointed shall, by virtue of these presents, and such election and appointment, be vested with all the powers and privileges which any of the other trustees of said college are hereby vested with. And we do further will, ordain and direct, that from and after the expiration of two years from the enrolment of these presents, such vacancy or vacancies as may or shall happen, by death or otherwise, in the aforesaid number of trustees, shall be filled up by election as aforesaid, so that when such vacancies shall be filled up unto the complete number of twelve trustees, eight of the aforesaid whole number of the body of trustees shall be resident, and respectable freeholders of our said province of New Hampshire, and seven of said whole number shall be laymen.

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          And we do further, of our special grace, certain knowledge and mere motion, will, give and grant unto the said trustees of Dartmouth College, that they, and their successors, or the major part of any seven of them, which shall convene for that purpose, as is above directed, may make, and they are hereby fully empowered, from time to time, fully and lawfully to make and establish such ordinances, orders and laws, as may tend to the good and wholesome government of the said college, and all the students and the several officers and ministers thereof, and to the public benefit of the same, not repugnant to the laws and statutes of our realm of Great Britain, or of this our province of New Hampshire, and not excluding any person of any religious denomination whatsoever, from free and equal liberty and advantage of education, or from any of the liberties and privileges or immunities of the said college, on account of his or their speculative sentiments in religion, and of his or their being of a religious profession different from the said trustees of the said Dartmouth College. And such ordinances, orders and laws, which shall as aforesaid be made, we do, for us, our heirs and successors, by these presents, ratify, allow of, and confirm, as good and effectual to oblige and bind all the students, and the several officers and ministers of the said college. And we do hereby authorize and empower the said trustees of Dartmouth College, and the president, tutors and professors by them elected and appointed as aforesaid, to put such ordinances, orders and laws in execution, to all proper intents and purposes.

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          And we do further, of our special grace, certain knowledge and mere motion, will, give, and grant unto the said trustees of said Dartmouth College, for the encouragement of learning, and animating the students of said college to diligence and industry, and a laudable progress in literature, that they, and their successors, or the major part of any seven or more of them, convened for that purpose, as above directed, do, by the president of said college, for the time being, or any other deputed by them, give and grant any such degree or degrees to any of the students of the said college, or any others by them thought worthy thereof, as are usually granted in either of the universities, or any other college in our realm of Great Britain; and that they sign and seal diplomas or certificates of such graduations, to be kept by the graduates as perpetual memorials and testimonials thereof.

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

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          And we do further, for us, our heirs and successors, give and grant unto the said trustees of the said Dartmouth College, and their successors, or to the major part of any seven or more of them, convened for the service of the said college, full power and authority, from time to time, to nominate and appoint all other officers and ministers, which they shall think convenient and necessary for the service of the said college, not herein particularly named or mentioned; which officers and ministers we do hereby empower to execute their offices and trusts, as fully and freely as any of the officers and ministers in our universities or colleges in our realm of Great Britain lawfully may or ought to do.

          And further, that the generous contributors to the support of this design of spreading the knowledge of the only true God and Saviour among the American savages, may, from time to time, be satisfied that their liberalities are faithfully disposed of, in the best manner, for that purpose, and that others may, in future time, be encouraged in the exercise of the like liberality, for promoting the same pious design, it shall be the duty of the president of said Dartmouth College, and of his successors, annually, or as often as he shall be thereunto desired or required, to transmit to the right honorable, honorable, and worthy gentlemen of the trust, in England, before mentioned, a faithful account of the improvements and disbursements of the several sums he shall receive from the donations and bequests made in England, through the hands of said trustees, and also advise them of the general plans laid, and prospects exhibited, as well as a faithful

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account of all remarkable occurrences, in order, if they shall think expedient, that they may be published. And this to continue so long as they shall perpetuate their board of trust, and there shall be any of the Indian natives remaining to be proper objects of that charity. And lastly, our express will and pleasure is, and we do, by these presents, for us, our heirs and successors, give and grant unto the said trustees of Dartmouth College, and to their successors for ever, that these our letters-patent, on the enrolment thereof in the secretary's office of our province of New Hampshire aforesaid, shall be good and effectual in the law, to all intents and purposes, against us, our heirs and successors, without any other license, grant or confirmation from us, our heirs and successors, hereafter by the said trustees to be had and obtained, notwithstanding the not writing or misrecital, not naming or misnaming the aforesaid offices, franchises, privileges, immunities or other the premises, or any of them, and notwithstanding a writ of ad quod damnum hath not issued forth to inquire of the premises, or any of them, before the ensealing hereof, any statute, act, ordinance, or provision, or any other matter or thing, to the contrary notwithstanding. To have and to hold, all and singular the privileges, advantages, liberties, immunities, and all other the premises herein and hereby granted, or which are meant, mentioned or intended to be herein and hereby given and granted, unto them, the said trustees of Dartmouth College, and to their successors for ever. In testimony whereof, we have caused these our letters to be 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 our reign, and in the year of our Lord 1769.

          N.B. The words 'and such professor or tutor, or any three or more of the trustees, shall immediately appoint a meeting of the body of the trustees, for the purpose aforesaid,' between the first and second lines, also the words 'or more,' between the 27th and 28th lines, also the words 'or more,' between the 28th and 29th lines, and also the words 'to all intents and purposes,' between the 37th and 38th lines of this sheet, were respectively interlined, before signing and sealing.

          And the said jurors, upon their oath, further say, that afterwards, upon the 18th day of the same December, the said letters-patent were duly enrolled and recorded in the secretary's office of said province, now state, of New Hampshire; and afterwards, and within one year from the issuing of the same letters-patent, all the persons named as trustees in the same accepted the said letters-patent, and assented thereunto, and the corporation therein and thereby created and erected was duly organized, and has, until the passing of the act of the legislature of the state of New Hampshire, of the 27th of June, A. D. 1816, and ever since (unless prevented by said act and the

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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, the said corporation had, took, acquired and received, by gift, donation, devise and otherwise, lands, goods, chattels and moneys of great value; and from time to time since, have had, taken, received and acquired, in manner aforesaid, and otherwise, lands, goods, chattels and moneys of great value; and on the same 27th day of June, A. D. 1816, the said corporation, erected and organized as aforesaid, had, held and enjoyed, and ever since have had, held and enjoyed, divers lands, tenements, hereditaments, goods, chattels and moneys, acquired in manner aforesaid, the yearly income of the same, not exceeding the sum of $26,666, for the use of said Dartmouth College, as specified in said letters-patent. And the said jurors, upon their oath, further say, that part of the said lands, so acquired and holden by the said trustees as aforesaid, were granted by (and are situate in) the state of Vermont, A. D. 1785, and are of great value; and other part of said lands, so acquired and holden as aforesaid, were granted by (and are situate in) the state of New Hampshire, in the years 1789 and 1807, and are of great value. And the said jurors, upon their oath, further say, that the said trustees of Dartmonth College, so constituted as aforesaid, on the same 27th day of June, A. D. 1816, were possessed of the goods and chattels in the declaration of the said trustees specified,

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and at the place therein mentioned, as of their own proper goods and chattels, and continued so possessed until, and at the time of the demand and refusal of the same, as hereinafter mentioned, unless divested thereof, and their title thereto defeated and rendered invalid, by the provisions of the act of the state of New Hampshire, made and passed on the same 27th day of June, A. D. 1816, and the doings under the same, as hereinafter mentioned and recited.

          And the said jurors, upon their oath, further say, that on the 27th day of June, A. D. 1816, the legislature of said state of New Hampshire made and passed a certain act, entitled, 'an act to amend the charter, and enlarge and improve the corporation of Dartmouth College,' in the words following:

          An act to amend the charter, and enlarge and improve the corporation of Dartmouth College.

          Whereas, knowledge and learning generally diffused through a community, are essential to the preservation of a free government, and extending the opportunities and advantages of education is highly conducive to promote this end, and by the constitution it is made the duty of the legislators and magistrates, to cherish the interests of literature, and the sciences, and all seminaries established for their advancement; and as the college of the state may, in the opinion of the legislature, be rendered more extensively useful: therefore

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

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corporation, heretofore called and known by the name of the Trustees of Dartmouth College, shall ever hereafter be called and known by the name of the Trustees of Dartmouth University; and the whole number of said trustees shall be twenty-one, a majority of whom shall form a quorum for the transaction of business; and they and their successors in that capacity, as hereby constituted, shall respectively for ever have, hold, use, exercise and enjoy all the powers, authorities, rights, property, liberties, privileges and immunities which have hitherto been possessed, enjoyed and used by the Trustees of Dartmouth College, except so far as the same may be varied or limited by the provisions of this act. And they shall have power to determine the times and places of their meetings, and manner of notifying the same; to organize colleges in the university; to establish an institute, and elect fellows and members thereof: to appoint such officers as they may deem proper, and determine their duties and compensation, and also to displace them; to delegate the power of supplying vacancies in any of the offices of the university, for any term of time not extending beyond their next meeting: to pass ordinances for the government of the students, with reasonable penalties, not inconsistent with the constitution and laws of this state; to prescribe the course of education, and confer degrees; and to arrange, invest and employ the funds of the university.

          § 2. And be it further enacted, that there shall be a board of overseers, who shall have perpetual succession, and whose number shall be twenty-five,

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fifteen of whom shall constitute a quorum for the transaction of business. The president of the senate, and the speaker of the house of representatives of New Hampshire, the governor and lientenant-governor of Vermont, for the time being, shall be members of said board, ex officio. The board of overseers shall have power to determine the times and places of their meetings, and manner of notifying the same; to inspect and confirm, or disapprove and negative, such votes and proceedings of the board of trustees as shall relate to the appointment and removal of president, professors and other permanent officers of the university, and determine their salaries; to the establishment of colleges and professorships, and the erection of new college buildings: provided always, that the said negative shall be expressed within sixty days from the time of said overseers being furnished with copies of such acts: provided also, that all votes and proceedings of the board of trustees shall be valid and effectual, to all intents and purposes, until such negative of the board of overseers be expressed, according to the provisions of this act.

          § 3. Be it further enacted, that there shall be a treasurer of said corporation, who shall be duly sworn, and who, before he enters upon the duties of his office, shall give bonds, with sureties, to the satisfaction of the corporation, for the faithful performance thereof; and also a secretary to each of the boards of trustees and overseers, to be elected by the said boards, respectively, who shall keep a just and true record of the proceedings of the board for

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which he was chosen. And it shall furthermore be the duty of the secretary of the board of trustees to furnish, as soon as may be, to the said board of overseers, copies of the records of such votes and proceedings, as by the provisions of this act are made subject to their revision and control.

          § 4. Be it further enacted, that the president of Dartmouth University, and his successors in office, shall have the superintendence of the government and instruction of the students, and may preside at all meetings of the trustees, and do and execute all the duties devolving by usage on the president of a university. He shall render annually to the governor of this state an account of the number of students, and of the state of the funds of the university; and likewise copies of all important votes and proceedings of the corporation and overseers, which shall be made out by the secretaries of the respective boards.

          § 5. Be it further enacted, that the president and professors of the university shall be nominated by the trustees, and approved by the overseers: and shall be liable to be suspended or removed from office in manner as before provided. And each of the two boards of trustees and overseers shall have power to suspend and remove any member of their respective boards.

          § 6. Be it further enacted, that the governor and counsel are hereby authorized to fill all vacancies in the board of overseers, whether the same be original vacancies, or are occasioned by the death, resignation or removal of any member. And

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the governor and counsel in like manner shall, by appointments, as soon as may be, complete the present board of trustees to the number of twenty-one, as provided for by this act, and shall have power also to fill all vacancies that may occur previous to, or during the first meeting of the said board of trustees. But the president of said university for the time being, shall, nevertheless, be a member of said board of trustees, ex officio. And the governor and council shall have power to inspect the doings and proceedings of the corporation, and of all the officers of the university, whenever they deem it expedient; and they are hereby required to make such inspection, and report the same to the legislature of this state, as often as once in every five years. And the governor is hereby authorized and requested to summon the first meeting of the said trustees and overseers, to be held at Hanover, on the 26th day of August next.

          § 7. Be it further enacted, that the president and professors of the university, before entering upon the duties of their offices, shall take the oath to support the constitution of the United States and of this state; certificates of which shall be in the office of the secretary of this state, within sixty days from their entering on their offices respectively.

          § 8. Be it further enacted, that perfect freedom of religious opinion shall be enjoyed by all the officers and students of the university; and no officer or student shall be deprived of any honors, privileges or benefits of the institution, on account of his religious creed or belief. The theological colleges which

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may be established in the university shall be founded on the same principles of religious freedom; and any man, or body of men, shall have a right to endow colleges or professorships of any sect of the Protestant Christian religion: and the trustees shall be held and obliged to appoint professors of learning and piety of such sects, according to the will of the donors.

          Approved, June 27th, 1816.

          And the said jurors, upon their oath, further say, that, at the annual meeting of the trustees of Dartmouth College, constituted agreeably to the letters-patent aforesaid, and in no other way or manner, holden at said college, on the 28th day of August, A. D. 1816, the said trustees voted and resolved, and caused the said vote and resolve to be entered on their records, that they do not accept the provisions of the said act of the legislature of New Hampshire of the 27th of June 1816, above recited, but do, by the said vote and resolve, expressly refuse to accept or act under the same. And the said jurors, upon their oath, further say, that the said trustees of Dartmouth College have never accepted, assented to, or acted under, the said act of the 27th of June, A. D. 1816, or any act passed in addition thereto, or in amendment thereof, but have continued to act, and still claim the right of acting, under the said letters-patent.

          And the said jurors, upon their oath, further say, that on the 7th day of October, A. D. 1816, and before the commencement of this suit, the said trustees of Dartmouth College demanded of the said

Page 545

William H. Woodward the property, goods and chattels in the said declaration specified, and requested the said William H. Woodward, who then had the same in his hands and possession, to deliver the same to them, which the said William H. Woodward then and there refused to do, and has ever since neglected and refused to do, but converted the same to his own use, if the said trustees of Dartmouth College could, after the passing of the said act of the 27th day of June, lawfully demand the same, and if the said William H. Woodward was not, by law, authorized to retain the same in his possession after such demand.

          And the said jurors, upon their oath, further say, that on the 18th day of December, A. D. 1816, the legislature of the said state of New Hampshire made and passed a certain other act, entitled, 'an act in addition to, and in amendment of, an act, entitled, an act to amend the charter, and enlarge and improve the corporation of Dartmouth College,' in the words following:

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

          Whereas, the meetings of the trustees and overseers of Dartmouth University, which were summoned agreeably to the provisions of said act, failed of being duly holden, in consequence of a quorum of neither said trustees nor overseers attending at the

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

          § 1. Be it enacted, &c., that the governor be, and he is hereby authorized and requested to summon a meeting of the trustees of Dartmouth University, at such time and place as he may deem expedient. And the said trustees, at such meeting, may do and transact any matter or thing, within the limits of their jurisdiction and power, as such trustees, to every intent and purpose, and as fully and completely as if the same were transacted at any annual or other meeting. And the governer, with advice of council, is authorized to fill all vacancies that have happened, or may happen in the board of said trustees, previous to their next annual meeting. And the governor is hereby authorized to summon a meeting of the overseers of said university, at such time and place as he may consider proper. And provided, a less number than a quorum of said board of overseers convene at the time and place appointed for such meeting of their board, they shall have power to adjourn, from time to time, until a quorum shall have convened.

          § 2. And be it further enacted, that so much of the act, to which this is an addition, as makes necessary any particular number of trustees or overseers of said university, to constitute a quorum for the transaction of business, be, and the same hereby is repealed; and that hereafter, nine of said trustees, convened agreeably to the provisions of this act, or

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to those of that to which this is an addition, shall be a quorum for transacting business; and that in the board of trustees, six votes at least shall be necessary for the passage of any act or resolution. And provided also, that any smaller number than nine of said trustees, convened at the time and place appointed for any meeting of their board, according to the provisions of this act, or that to which this is an addition, shall have power to adjourn from time to time, until a quorum shall have convened.

          § 3. And be it further enacted, that each member of said board of trustees, already appointed or chosen, or hereafter to be appointed or chosen, shall, before entering on the duties of his office, make and subscribe an oath for the faithful discharge of the duties aforesaid; which oath shall be returned to, and filed in the office of the secretary of state, previous to the next regular meeting of said board, after said member enters on the duties of his office, as aforesaid.

          Approved, December 18th, 1816.

          And the said jurors, upon their oath, further say, that on the 26th day of December, A. D. 1816, the legislature of said state of New Hampshire made and passed a certain other act, entitled, 'an act in addition to an act, entitled, an act in addition to, and in amendment of an act, entitled, an act to amend the charter and enlarge and improve the corporation of Dartmouth College,' in the words following:

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

          Be it enacted &c., that if any person or persons shall assume the office of president, trustee, professor, secretary, treasurer, librarian or other officer of Dartmouth University; or by any name, or under any pretext, shall, directly or indirectly, take upon himself or themselves the discharge of any of the duties of either of those offices, except it be pursuant to, and in conformity with, the provisions of an act, entitled, 'an act to amend the charter and enlarge and improve the corporation of Dartmouth College,' or, of the 'act, in addition to and in amendment of an act, entitled, an act to amend the charter and enlarge and improve the corporation of Dartmouth College,' or shall in any way, directly or indirectly, wilfully impede or hinder any such officer or officers already existing, or hereafter to be appointed agreeably to the provisions of the acts aforesaid, in the free and entire discharge of the duties of their respective offices, conformably to the provisions of said acts, the person or persons so offending shall, for each offence, forfeit and pay the sum of five hundred dollars, to be recovered by any person who shall sue therefor, one-half thereof to the use of the prosecutor, and the other half to the use of said university.

          And be it further enacted, that the person or persons who sustained the offices of secretary and treasurer

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of the trustees of Dartmouth College, next before the passage of the act, entitled, 'an act to amend the charter and enlarge and improve the corporation of Dartmouth College,' shall continue to hold and discharge the duties of those offices, as secretary and treasurer of the trustees of Dartmouth University, until another person or persons be appointed, in his or their stead, by the trustees of said university. And that the treasurer of said university, so existing, shall, in his office, have the care, management, direction and superintendence of the property of said corporation, whether real or personal, until a quorum of said trustees shall have convened in a regular meeting.

          Approved, December 26th, 1816.

          And the said jurors, upon their oath, further say, that the said William H. Woodward, before the said 27th day of June, had been duly appointed by the said trustees of Dartmouth College, secretary and treasurer of the said corporation, and was duly qualified to exercise, and did exercise the said offices, and perform the duties of the same; and as such secretary and treasurer, rightfully had, while he so continued secretary and treasurer as aforesaid, the custody and keeping of the several goods, chattels and property, in said declaration specified.

          And the said jurors, upon their oath, further say, that the said William H. Woodward was removed by said trustees of Dartmouth College (if the said trustees could, by law, do the said acts) from said office of secretary, on the 27th day of August, A. D. 1816, and from said office of treasurer, on the 27th day of

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September, then next following, of which said removals he, the said William H. Woodward, had due notice on each of said days last mentioned.

          And the said jurors, upon their oath, further say, that the corporation called the Trustees of Dartmouth University, was duly organized on the 4th day of February, A. D. 1817, pursuant to, and under, the said recited acts of the 27th day of June, and of the 18th and 26th days of December, A. D. 1816; and the said William H. Woodward was, on the said 4th day of February, A. D. 1817, duly appointed by the said Trustees of Dartmouth University, secretary and treasurer of the said Trustees of Dartmouth University, and then and there accepted both said offices.

          And the said jurors, upon their oath, further say, that this suit was commenced on the 8th day of February, A. D. 1817. But whether upon the whole matter aforesaid, by the jurors aforesaid, in manner and form aforesaid found, the said acts of the 27th of June, 18th and 26th of December, A. D. 1816, are valid in law, and binding on the said trustees of Dartmouth College, without acceptance thereof and assent thereunto by them, so as to render the plaintiffs incapable of maintaining this action, or whether the same acts are repugnant to the constitution of the United States, and so void, the said jurors are wholly ignorant, and pray the advice of the court upon the premises. And if, upon the said matter, it shall seem to the court here, that the said acts last mentioned are valid in law, and binding on said trustees of Dartmouth College,

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without acceptance thereof, and assent thereto, by them, so as to render the plaintiffs incapable of maintaining this action, and are not repugnant to the constitution of the United States, then the said jurors, upon their oath, say, that the said William H. Woodward is not guilty of the premises above laid to his charge, by the declaration aforesaid, as the said William H. Woodward hath above in pleading alleged. But if, upon the whole matter aforesaid, it shall seem to the court here, that the said acts last mentioned are not valid in law, and are not binding on the said trustees of Dartmouth College, without acceptance thereof, and assent thereto, by them, so as to render them incapable of maintaining this action, and that the said acts are repugnant to the constitution of the United States and void, then the said jurors, upon their oath, say that the said William H. Woodward is guilty of the premises above laid to his charge, by the declaration aforesaid, and in that case, they assess the damages of them, the said trustees of Dartmouth College, by occasion thereof, at $20,000.

          Judgment having been afterwards rendered upon the said special verdict, by the superior court of the state of New Hampshire, being the highest court of law or equity of said state, for the plaintiff below, the cause was brought before this court by writ of error.

          Webster, for the plaintiffs in error.The general question is, whether the acts of the 27th of June, and of the 18th and 26th of December 1816, are

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valid and binding on the rights of the plaintiffs, without their acceptance or assent.

          The substance of the facts recited in the preamble to the charter, is, that Dr. Wheelock had founded a charity, on funds owned and procured by himself; that he was at that time, the sole dispenser and sole administrator, as well as the legal owner of these funds; that he had made his will devising this property in trust, to continue the existence and uses of the school, and appointed trustees; that, in this state of things, he had been invited to fix his school permanently in New Hampshire, and to extend the design of it to the education of the youth of that province; that before he removed his school, or accepted this invitation, which his friends in England had advised him to accept, he applied for a charter, to be granted, not to whomsoever the king or government of the province should please, but to such persons as he named and appointed, viz., the persons whom he had already appointed to be the future trustees of his charity, by his will. The charter, or letters-patent, then proceed to create such a corporation, and to appoint twelve persons to constitute it, by the name of the 'Trustees of Dartmouth College;' to have perpetual existence, as such corporation, and with power to hold and dispose of lands and goods for the use of the college, with all the ordinary powers of corporations. They are, in their discretion, to apply the funds and property of the college to the support of the president, tutors, ministers and other officers of the college, and such missionaries and school-masters as they may see fit to employ among

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the Indians. There are to be twelve trustees for ever, and no more; and they are to have the right of filling vacancies occurring in their own body. The Rev. Mr. Wheelock is declared to be the founder of the college, and is, by the charter, appointed first president, with power to appoint a successor, by his last will. All proper powers of government, superintendence and visitation, are vested in the trustees. They are to appoint and remove all officers, at their discretion; to fix their salaries, and assign their duties; and to make all ordinances, orders and laws, for the government of the students. And to the end that the persons who had acted as depositaries of the contributions in England, and who had also been contributors themselves, might be satisfied of the good use of their contributions, the president was, annually, or when required, to transmit to them an account of the progress of the institution, and the disbursements of its funds, so long as they should continue to act in that trust. These letters-patent are to be good and effectual in law, against the king, his heirs and successors for ever, without further grant or confirmation; and the trustees are to hold all and singular these privileges, advantages, liberties and immunities, to them and to their successors for ever. No funds are given to the college by this charter. A corporate existence and capacity are given to the trustees, with the privileges and immunities which have been mentioned, to enable the founder and his associates the better to manage the funds which they themselves had contributed, and such others as they might afterwards obtain.

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          After the institution, thus created and constituted, had existed, uninterruptedly and usefully, nearly fifty years, the legislature of New Hampshire passed the acts in question. The first act makes the twelve trustees under the charter, and nine other individuals to be appointed by the governor and council, a corporation, by a new name; and to this new corporation transfers all the property, rights, powers, liberties and privileges of the old corporation; with further power to establish new colleges and an institute, and to apply all or any part of the funds to these purposes, subject to the power and control of a board of twenty-five overseers, to be appointed by the governor and council. The second act makes further provisions for executing the objects of the first, and the last act authorizes the defendant, the treasurer of the plaintiffs, to retain and hold their property, against their will.

          If these acts are valid, the old corporation is abolished, and a new one created. The first act does, in fact, if it can have effect, create a new corporation, and transfer to it all the property and franchises of the old. The two corporations are not the same, in anything which essentially belongs to the existence of a corporation. They have different names, and different powers, rights and duties; their organization is wholly different; the powers of the corporation are not vested in the same or similar hands. In one, the trustees are twelve, and no more; in the other, they are twenty-one. In one, the power is a single board; in the other, it is divided between two boards. Although the act professes to

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include the old trustees in the new corporation, yet that was without their assent, and against their remonstrance; and no person can be compelled to be a member of such a corporation against his will. It was neither expected nor intended, that they should be members of the new corporation. The act itself treats the old corporation as at an end, and going on the ground, that all its functions have ceased, it provides for the first meeting and organization of the new corporation. It expressly provides also, that the new corporation shall have and hold all the property of the old; a provision which would be quite unnecessary, upon any other ground, than that the old corporation was dissolved. But if it could be contended, that the effect of these acts was not entirely to abolish the old corporation, yet it is manifest, that they impair and invade the rights, property and powers of the trustees, under the charter, as a corporation, and the legal rights, privileges and immunities which belong to them, as individual members of the corporation. The twelve trustees were the sole legal owners of all the property acquired under the charter; by the acts, others are admitted, against their will, to be joint owners. The twelve individuals, who are trustees, were possessed of all the franchises and immunities conferred by the charter; by the acts, nine other teustees, and twenty-five overseers, are admitted, against their will, to divide these franchises and immunities with them. If, either as a corporation, or as individuals, they have any legal rights, this forcible intrusion of others violates those rights, as manifestly as an entire and complete ouster

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and dispossession. These acts alter the whole constitution of the corporation; they affect the rights of the whole body, as a corporation, and the rights of the individuals who compose it; they revoke corporate powers and franchises; they alienate and transfer the property of the college to others. By the charter, the trustees had a right to fill vacancies in their own number; this is now taken away. They were to consist of twelve, and by express provision, of no more; this is altered. They and their successors, appointed by themselves, were for ever to hold the property; the legislature has found successors for them, before their seats are vacant. The powers and privileges, which the twelve were to exercise exclusively, are now to be exercised by others. By one of the acts, they are subjected to heavy penalties, if they exercise their offices, or any of those powers and privileges granted them by charter, and which they had exercised for fifty years; they are to be punished for not accepting the new grant, and taking its benefits. This, it must be confessed, is rather a summary mode of settling a question of constitutional right. Not only are new trustees forced into the corporation, but new trusts and uses are created. The college is turned into a university; power is given to create new colleges, and to authorize any diversion of the funds, which may be agreeable to the new boards, sufficient latitude in given, by the undefined power of establishing an institute. To these new colleges, and this institute, the funds contributed by the founder, Dr. Wheelock, and by the original donors, the Earl of Dartmouth

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and others, are to be applied, in plain and manifest disregard of the uses to which they were given. The president, one of the old trustees, had a right to his office, salary and emoluments, subject to the twelve trustees alone; his title to these is now changed, and he is made accountable to new masters; so also, all the professors and tutors. If the legislature can, at pleasure, make these alterations and changes in the rights and privileges of the plaintiffs, it may, with equal propriety, abolish these rights and privileges altogether; the same power which can do any part of this work, can accomplish the whole. And, indeed, the argument, on which these acts have been hitherto defended, goes altogether on the ground, that this is such a corporation as the legislature may abolish at pleasure; and that its members have no rights, liberties, franchises, property or privileges, which the legislature may not revoke, annul, alienate or transfer to others, whenever it sees fit.

          It will be contended by the plaintiffs, that these acts are not valid and binding on them without their assent. 1. Because they are against common right, and the constitution of New Hampshire. 2. Because they are repugnant to the constitution of the United States. I am aware of the limits which bound the jurisdiction of the court in this case; and that on this record, nothing can be decided, but the single question, whether these acts are repugnant to the constitution of the United States. Yet it may assist in forming an opinion of their true nature and character, to compare them with those fundamental principles, introduced into the state governments

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for the purpose of limiting the exercise of the legislative power, and which the constitution of New Hampshire expresses with great fullness and accuracy.

          It is not too much to assert, that the legislature of New Hampshire would not have been competent to pass the acts in question, and to make them binding on the plaintiffs, without their assent, even if there had been, in the constitution of New Hampshire, or of the United States, no special restriction on their power; because these acts are not the exercise of a power properly legislative. Calder v. Bull, 3 Dall. 386. Their object and effect is, to take away from one, rights, property and franchises, and to grant them to another. This is not the exercise of a legislative power. To justify the taking away of vested rights, there must be a forfeiture; to adjudge upon and declare which, is the proper province of the judiciary. Attainder and confiscation are acts of sovereign power, not acts of legislation. The British parliament, among other unlimited powers, claims that of altering and vacating charters; not as an act of ordinary legislation, but of uncontrolled authority. It is, theoretically, omnipotent; yet, in modern times, it has attempted the exercise of this power, very rarely. In a celebrated instance, those who asserted this power in parliament, vindicated its exercise only in a case, in which it could be shown, 1st. That the charter in question was a charter of political power. 2d. That there was a great and overruling state necessity, justifying the

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violation of the charter. 3. That the charter had been abused, and justly forfeited. (Annual Register 1784, p. 160; Parl. Reg. 1783; Mr. Burke's Speech on Mr. Fox's East India Bill, Burke's Works, vol. 3, p. 414, 417, 467, 468, 486.) The bill affecting this charter did not pass; its history is well known. The act which afterwards did pass, passed with the assent of the corporation. Even in the worst times, this power of parliament to repeal and rescind charters has not often been exercised. The illegal proceedings in the reign of Charles II. were under color of law. Judgments of forfeiture were obtained in the courts. Such was the case of the quo warranto against the city of London, and the proceedings by which the charter of Massachusetts was vacated. The legislature of New Hampshire has no more power over the rights of the plaintiffs than existed, somewhere, in some department of government, before the revolution. The British parliament could not have annulled or revoked this grant, as an act of ordinary legislation. If it had done it at all, it could only have been, in virtue of that sovereign power, called omnipotent, which does not belong to any legislature in the United States. The legislature of New Hampshire has the same power over this charter, which belonged to the king, who granted it, and no more. By the law of England, the power to create corporations is a part of the royal prerogative. 1 Bl. Com. 472. By the revolution, this power may be considered as having devolved on the legislature of

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the state, and it has, accordingly, been exercised by the legislature. But the king cannot abolish a corporation, or new model it, or alter its powers, without its assent. This is the acknowledged and well-known doctrine of the common law. 'Whatever might have been the notion in former times,' says Lord MANSFIELD, 'it is most certain, now, that the corporations of the universities are lay corporations; and that the crown cannot take away from them any rights that have been formerly subsisting in them, under old charters or prescriptive usage.' 3 Burr. 1656. After forfeiture duly found, the king may regrant the franchises; but a grant of franchises, already granted, and of which no forfeiture has been found, is void. Corporate franchises can only be forfeited by trial and judgment. King v. Pasmore, 3 T. R. 244. In case of a new charter or grant to an existing corporation, it may accept or reject it as it pleases. King v. Vice-Chancellor of Cambridge, 3 Burr. 1656; 3 T. R. 240, per Lord KENYON. It may accept such part of the grant as it chooses, and reject the rest. 3 Burr. 1661. In the very nature of things a charter cannot be forced upon any body; no one can be compelled to accept a grant; and without acceptance, the grant is necessarily void. Ellis v. Marshall, 2 Mass. 277; Kyd on Corp. 65-6. It cannot be pretended, that the legislature, as successor to the king in this part of his prerogative, has any power to revoke, vacate or alter this charter. If, therefore, the legislature has not this power, by any

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specific grant contained in the constitution; nor as included in its ordinary legislative powers; nor by reason of its succession to the prerogatives of the crown in this particular; on what ground would the authority to pass these acts rest, even if there were no special prohibitory clauses in the constitution, and the bill of rights?

          But there are prohibitions in the constitution and bill of rights of New Hampshire, introduced for the purpose of limiting the legislative power, and of protecting the rights and property of the citizens. One prohibition is, 'that no person shall be deprived of his property, immunities or privileges, put out of the protection of the law, or deprived of his life, liberty or estate, but by judgment of his peers, or the law of the land.' In the opinion, however, which was given in the court below, it is denied, that the trustees, under the charter, had any property, immunity, liberty or privilege, in this corporation, within the meaning of this prohibition in the bill of rights. It is said, that it is a public corporation and public property. That the trustees have no greater interest in it than any other individuals. That it is not private property, which they can sell, or transmit to their heirs; and that, therefore, they have no interest in it. That their office is a public trust, like that of the governor, or a judge; and that they have no more concern in the property of the college, than the governor in the property of the state, or than the judges in the fines which they impose on the culprits at their bar. That it is nothing to them, whether their powers shall be extended or lessened, any more than it is

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to the courts, whether their jurisdiction shall be enlarged or diminished. It is necessary, therefore, to inquire into the true nature and character of the corporation which was created by the charter of 1769.

          There are divers sorts of corporations; and it may be safely admitted that the legislature has more power over some, than over others. 1 Wooddes. 474; 1 Bl. Com. 467. Some corporations are for government and political arrangement; such, for example, as cities, counties and the towns in New England. These may be changed and modified, as public convenience may require, due regard being always had to the rights of property. Of such corporations, all who live within the limits are, of course, obliged to be members, and to submit to the duties which the law imposes on them as such. Other civil corporations are for the advancement of trade and business, such as banks, insurance companies, and the like. These are created, not by general law, but usually by grant; their constitution is special; it is such as the legislature sees fit to give, and the grantees to accept.

          The corporation in question is not a civil, although it is a lay corporation. It is an eleemosynary corporation. It is a private charity, originally founded and endowed by an individual, with a charter obtained for it at his request, for the better administration of his charity. 'The eleemosynary sort of corporations are such as are constituted for the perpetual distributions of the free-alms or bounty of the founder of them, to such persons as he has directed. Of this

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are all hospitals for the maintenance of the poor, sick and impotent; and all colleges both in our universities and out of them.' 1 Bl. Com. 471. Eleemosynary corporations are for the management of private property, according to the will of the donors; they are private corporations. A college is as much a private corporation as an hospital; especially, a college founded as this was, by private bounty. A college is a charity. 'The establishment of learning,' says Lord HARDWICKE, 'is a charity, and so considered in the statute of Elizabeth. A devise to a college, for their benefit, is a laudable charity, and deserves encouragement.' 1 Ves. 537. The legal signification of a charity is derived chiefly from the statute 43 Eliz., c. 4. 'Those purposes,' says Sir. W. GRANT, 'are considered charitable, which that statute enumerates.' 9 Ves. 405. Colleges are enumerated as charities in that statute. The government, in these cases, lends its aid to perpetuate the beneficient intention of the donor, by granting a charter, under which his private charity shall continue to be dispensed, after his death. This is done, either by incorporating the objects of the charity, as, for instance, the scholars in a college, or the poor in a hospital; or by incorporating those who are to be governors or trustees of the charity. 1 Wooddes. 474.

          In cases of the first sort, the founder is, by the common law, visitor. In early times, it became a maxim, that he who gave the property might regulate it in future. Cujus est dare, ejus est disponere. This right of visitation descended from the founder to his heir, as

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a right of property, and precisely as his other property went to his heir; and in default of heirs, it went to the king, as all other property goes to the king, for the want of heirs. The right of visitation arises from the property; it grows out of the endowment. The founder may, if he please, part with it, at the time when he establishes the charity, and may vest it in others. Therefore, if he chooses that governors, trustees or overseers should be appointed in the charter, he may cause it to be done, and his power of visitation will be transferred to them, instead of descending to his heirs. The persons thus assigned or appointed by the founder will be visitors, with all the powers of the founder, in exclusion of his heir. 1 Bl. Com. 472. The right of visitation then accrues to them, as a matter of property, by the gift, transfer or appointment of the founder. This is a private right, which they can assert in all legal modes, and in which they have the same protection of the law as in all other rights. As visitors, they may make rules, ordinances and statutes, and alter and repeal them, so far as permitted so to do by the charter. 2 T. R. 350-51. Although the charter proceeds from the crown, or the government, it is considered as the will of the donor. It is obtained at his request. He imposes it as the rule which is to prevail in the dispensation of his bounty, in all future times. The king, or government, which grants the charter, is not thereby the founder, but he who furnishes the funds. The gift of the revenues is the foundation. 1 Bl. Com. 480. The leading

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case on this subject is Phillips v. Bury.³ This was an ejectment brought to recover the rectory-house, &c., of Exeter college, in Oxford. The question was, whether the plaintiff or defendant was legal rector. Exeter college was founded by an individual, and incorporated by a charter granted by Queen Elizabeth. The controversy turned upon the power of the visitor, and in the discussion of the cause, the nature of college charters and corporations was very fully considered; and it was determined, that the college was a private corporation, and that the founder had a right to appoint a visitor, and give him such power as he thought fit.⁴ The learned Bishop Stillingfleet's argument in the same cause, as a member of the House of Lords, when it was there heard, exhibits very clearly the nature of colleges and similiar corporations.⁵ These opinions received the sanction of the House of Lords, and they seem to be settled and undoubted law. Where there is a charter, vesting proper powers of government in trustees or governors, they are visitors; and there is no control in anybody else; except only that the courts of equity or of law will interfere so far as to preserve the revenues, and prevent the perversion of the funds, and to keep the visitors within their prescribed bounds. Green v. Rutherford, 1 Ves. 472; Attorney-General v. Foundling Hospital, 2 Ves. Jr. 47; Kyd on Corp. 195; Coop. Eq. Pl. 292.

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'The foundations of colleges,' says Lord MANSFIELD, 'are to be considered in two views, viz., as they are corporations, and as they are eleemosynary. As eleemosynary, they are the creatures of the founder; he may delegate his power, either generally or specially; he may prescribe particular modes and manners, as to the exercise of part of it. If he makes a general visitor (as by the general words, visitator sit), the person so constituted has all incidental power; but he may be restrained as to particular instances. The founder may appoint a special visitor, for a particular purpose, and no further. The founder may make a general visitor; and yet appoint an inferior particular power, to be executed without going to the visitor in the first instance.' St. John's College, Cambridge v. Todington, 1 Burr. 200. And even if the king be founder, if he grant a charter incorporating trustees and governors, they are visitors, and the king cannot visit. Attorney-General v. Middleton, 2 Ves. 328. A subsequent donation, or engrafted fellowship, falls under the same general visitatorial power, if not otherwise specially provided. Green v. Rutherford; St. John's College v. Todington.

          In New England, and perhaps throughout the United States, eleemosynary corporations have been generally established in the later mode, that is by incorporating governors or trustees, and vesting in them the right of visitation. Small variations may have been in some instances adopted; as in the case of Harvard College, where some power of inspection is given to the overseers, but

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not, strictly speaking, a visitatorial power, which still belongs, it is apprehended, to the fellows or members of the corporation. In general, there are many donors. A charter is obtained, comprising them all, or some of them, and such others as they choose to include, with the right of appointing their successors. They are thus the visitors of their own charity, and appoint others, such as they may see fit, to exercise the same office in time to come. All such corporations are private. The case before the court is clearly that of an eleemosynary corporation. It is, in the strictest legal sense, a private charity. In King v. St. Catharine's Hall, 4 T. R. 233, that college is called a private, eleemosynary, lay corporation. It was endowed by a private founder, and incorporated by letters-patent. And in the same manner was Dartmouth College founded and incorporated. Dr. Wheelock is declared by the charter to be its founder. It was established by him, on funds contributed and collected by himself. As such founder, he had a right of visitation, which he assigned to the trustees, and they received it, by his consent and appointment, and held it under the charter. 1 Bl. Com. ubi supra. He appointed these trustees visitors, and in that respect to take place of his heir; as he might have appointed devisees to take his estate, instead of his heir. Little, probably, did he think, at that time, that the legislature would ever take away this property and these privileges, and give them to others; little did he suppose, that this charter secured to him and his successors no legal rights; little did

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the other donors think so. If they had, the college would have been, what the university is now, a thing upon paper, existing only in name. The numerous academies in New England have been established substantially in the same manner. They hold their property by the same tenure, and no other. Nor has Harvard College any surer title than Dartmouth College; it may, to-day, have more friends; but to-morrow, it may have more enemies; its legal rights are the same. So also of Yale College; and indeed of all the others. When the legislature gives to these institutions, it may, and does, accompany its grants with such conditions as it pleases. The grant of lands by the legislature of New Hampshire to Dartmouth College, in 1789, was accompanied with various conditions. When donations are made, by the legislature or others, to a charity, already existing, without any condition, or the specification of any new use, the donation follows the nature of the charity. Hence the doctrine, that all eleemosynary corporations are private bodies. They are founded by private persons, and on private property. The public cannot be charitable in these institutions. It is not the money of the public, but of private persons which is dispensed. It may be public, that is, general, in its uses and advantages; and the state may very laudably add contributions of its own to the funds; but it is still private in the tenure of the property, and in the right of administering the funds.

          If the doctrine laid down by Lord HOLT, and the House of Lords, in Phillips v. Bury, and recognised and established in all the other cases, be correct,

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the property of this college was private property; it was vested in the trustees by the charter, and to be administered by them, according to the will of the founder and donors, as expressed in the charter; they were also visitors of the charity, in the most ample sense. They had, therefore, as they contend, privileges, property and immunities, within the true meaning of the bill of rights. They had rights, and still have them, which they can assert against the legislature, as well as against other wrongdoers. It makes no difference, that the estate is holden for certain trusts; the legal estate is still theirs. They have a right in the property, and they have a right of visiting and superintending the trust; and this is an object, of legal protection, as much as any other right. The charter declares that the powers conferred on the trustees, are 'privileges, advantages, liberties and immunities;' and that they shall be for ever holden by them and their successors. The New Hampshire bill of rights declares that no one shall be deprived of his 'property, privileges or immunities,' but by judgment of his peers, or the law of the land.

          The argument on the other side is, that although these terms may mean something in the bill of rights, they mean nothing in this charter. But they are terms of legal signification, and very properly used in the charter; they are equivalent with franchises. Blackstone says, that franchise and liberty are used as synonymous terms. And after enumerating other liberties and franchises, he says, 'it is likewise, a franchise, for a number of persons to be incorporated and subsist as a body politic, with a power to maintain

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perpetual succession, and do other corporate acts; and each individual member of such corporation is also said to have a franchise or freedom.' 2 Bl. Com. 37. Liberties is the term used in magna charta, as including franchises, privileges, immunities and all the rights which belong to that class. Professor Sullivan says, the term signifies the 'privileges that some of the subjects, whether single persons or bodies corporate, have above others by the lawful grant of the king; as the chattels of felons or outlaws, and the lands and privilegs of corporations.' Sullivan's Lect, 41st Lect. The privilege, then, of being a member of a corporation, under a lawful grant, and of exercising the rights and powers of such member, is such a privilege, liberty or franchise, as has been the object of legal protection, and the subject of a legal interest, from the time of magna charta to the present moment. The plaintiffs have such an interest in this corporation, individually, as they could assert and maintain in a court of law, not as agents of the public, but in their own right. Each trustee has a franchise, and if he be disturbed in the enjoyment of it, he would have redress, on appealing to the law, as promptly as for any other injury. If the other trustees should conspire against any one of them, to prevent his equal right and voice in the appointment of a president or professor, or in the passing of any statute or ordinance of the college, he would be entitled to his action, for depriving him of his franchise. It makes no difference, that this property is to be holden and administered, and these franchises exercised,

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for the purpose of diffusing learning. No principle and no case establishes any such distinction. The public may be benefited by the use of this property; but this does not change the nature of the property, or the rights of the owners. The object of the charter may be public good; so it is in all other corporations; and this would as well justify the resumption or violation of the grant in any other case as in this. In the case of an advowson, the use is public, and the right cannot be turned to any private benefit or emolument. It is, nevertheless, a legal private right, and the property of the owner, as emphatically as his freehold. The rights and privileges of trustees, visitors or governors of incorporated colleges, stand on the same foundation. They are so considered, both by Lord HOLT and Lord HARDWICKE. Phillips v. Bury; Green v. Rutherforth. See also 2 Bl. Com. 21.

          To contend, that the rights of the plaintiffs may be taken away, because they derive from them no pecuniary benefit, or private emolument, or because they cannot be transmitted to their heirs, or would not be assets to pay their debts, is taking an extremely narrow view of the subject. According to this notion, the case would be different, if, in the charter, they had stipulated for a commission on the disbursement of the funds; and they have ceased to have any interest in the property, because they have undertaken to administer it gratuitously. It cannot be necessary to say much in refutation of the idea, that there cannot be a legal interest, or

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ownership, in anything which does not yield a pecuniary profit; as if the law regarded no rights but the rights of money, and of visible tangible property: Of what nature are all rights of suffrage? No elector has a particular personal interest; but each has a legal right, to be exercised at his own discretion, and it cannot be taken away from him.

          The exercise of this right, directly and very materially affects the public; much more so than the exercise of the privileges of a trustee of this college. Consequences of the utmost magnitude may sometimes depend on the exercise of the right of suffrage by one or a few electors. Nobody was ever yet heard to contend, however, that on that account the public might take away the right or impair it. This notion appears to be borrowed from no better source than the repudiated doctrine of the three judges in the Aylesbury Case.⁶ That was an action against a returning officer, for refusing the plaintiff's vote, in the election of a member of parliament. Three of the judges of the king's bench held, that the action could not be maintained, because, among other objections, 'it was not any matter of profit, either in praesenti or in futuro.' It would not enrich the plaintiff, in praesenti, nor would it, in futuro, go to his heirs, or answer to pay his debts. But Lord HOLT and the House of Lords were of another opinion. The judgment of the three judges was reversed, and the doctrine they held, having been exploded for a century, seems now for the first time to be revived. Individuals have a right

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to use their own property for purposes of benevolence, either towards the public, or towards other individuals. They have a right to exercise this benevolence in such lawful manner as they may choose; and when the government has induced and excited it, by contracting to give perpetuity to the stipulated manner of exercising it, to rescind this contract, and seize on the property, is not law, but violence. Whether the state will grant these franchises, and under what conditions it will grant them, it decides for itself. But when once granted, the constitution holds them to be sacred, till forfeited for just cause. That all property, of which the use may be beneficial to the public, belongs, therefore, to the public, is quite a new doctrine. It has no precedent, and is supported by no known principle. Dr. Wheelock might have answered his purposes, in this case, by executing a private deed of trust. He might have conveyed his property to trustees, for precisely such uses as are described in this charter. Indeed, it appears, that he had contemplated the establishment of his school in that manner, and had made his will, and devised the property to the same persons who were afterwards appointed trustees in the charter. Many literary and other charitable institutions are founded in that manner, and the trust is renewed, and conferred on other persons, from time to time, as occasion may require. In such a case, no lawyer would or could say, that the legislature might divest the trustees, constituted by deed or will, seize upon the property, and give it to other persons, for other purposes. And does the granting of a charter, which is only done to perpetuate the trust

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in a more convenient manner, make any difference? Does or can this change the nature of the charity, and turn it into a public, political corporation? Happily, we are not without authority on this point. It has been considered and adjudged.

          Lord HARDWICKE says, in so many words, 'The charter of the crown cannot make a charity more or less public, but only more permanent than it would otherwise be.' Attorney-General v. Pearce, 2 Atk. 87. The granting of the corporation is but making the trust perpetual, and does not alter the nature of the charity. The very object sought in obtaining such charter, and in giving property to such a corporation, is to make and keep it private property, and to clothe it with all the security and inviolability of private property. The intent is, that there shall be a legal private ownership, and that the legal owners shall maintain and protect the property, for the benefit of those for whose use it was designed. Who ever endowed the public? Who ever appointed a legislature to administer his charity? Or who ever heard, before, that a gift to a college, or hospital, or an asylum, was, in reality, nothing but a gift to the state? The state of Vermont is a principal donor to Dartmouth College. The lands given lie in that state. This appears in the special verdict. Is Vermont to be considered as having intended a gift to the state of New Hampshire in this case; as it has been said is to be the reasonable construction of all donations to the college? The legislature of New Hampshire affects to represent the public, and therefore, claims a right to control

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all property destined to public use.

          What hinders Vermont from considering herself equally the representative of the public, and from resuming her grants, at her own pleasure? Her right to do so is less doubtful, than the power of New Hampshire to pass the laws in question. In University v. Foy, 2 Hayw. 310, the supreme court of North Carolina pronounced unconstitutional and void, a law repealing a grant to the University of North Carolina; although that university was originally erected and endowed by a statute of the state. That case was a grant of lands, and the court decided, that it could not be resumed. This is the grant of a power and capacity to hold lands. Where is the difference of the cases, upon principle? In Terrett v. Taylor, 9 Cranch 43, this court decided, that a legislative grant or confirmation of lands, for the purposes of moral and religious instruction, could no more be rescinded than other grants. The nature of the use was not holden to make any differe