Trustees of Dartmouth College v. Woodward

The opinion of the Court was delivered by

This is an action of trover, brought by the Trustees of Dartmouth College against William H. Woodward, in the State Court of New Hampshire, for the book of records, corporate seal, and other corporate property, to which the plaintiffs allege themselves to be entitled.

A special verdict, after setting out the rights of the parties, finds for the defendant, if certain acts of the legislature of New-Hampshire, passed on the 27th of June, andón the 18th of December, 1816, be valid, and binding on the trustees without their assent, and not repugnant to the constitution of the United States ; otherwise, it finds for the plaintiffs.

This Court can be insensible neither to the magnitude nor delicacy of this question. The validity of a legislative act is to be examined ; and the opinion of the highest law tribunal of a State is to be revised : an opinion which carries with it intrinsic evidence of the diligence, of the ability, and the integrity, with which it was formed. On more than one occasion, this Court has expressed the cautious circumspection with which it approaches the consideration of such questions ; and hás declared, that, in no doubtful case, would it pronounce a legislative act to be contrary to the constitution. But the American people have said, in the constitution of the United States, that “ no State shall pass any bill of attainder, ex post facto law,; or law impairing the obligation of contracts.” In the same instrument they have also said, “ that the judicial power shall extend to all cases in law and equity arising under the constitution.” On the judge» of this Court, then, is imposed the high and solemn duty of protecting, from' éven legislative violation, those contracts which the constitution of our country has placed beyond legislative control; and, however irksome the task may be, this is a duty from which we dare not shrink..

The defendant claims under three acts: of the legislature of N,ew-Hampshire, the most material of which was passed on. the 27th of June, 1816, and is entitled, “ an. act to amend the charter, and enlarge and improve the corporation of Dartmouth College.” Among other alterations in the charter, this act increases the number pf trustees to twenty-one, gives the appointment of the additional members to the executive pf the State, and creates a board of overseers, with power fo. inspect and control the most important acts, of the trustees. This board consists of twenty-five persons. The president of the senate, the speaker, of the house of representativés, of New-Hampshire, and the governor and lieutenant governor of Vermont, fpr the time being, are to be memr hers ex officio. The board is to. be completed by the governor and council of New-Hampshire, who are also empowered to. fill all vacancies which may occur. The acts of the 18th and 26th. of December, are. supplemental to that of the '27th of- June, animé principally intended to carry that act into effect;

The majority of the trustees of the college have:, refused to accept this amended charter, and have

It can require no argument to prove, that the cireumstances of this case constitute a contract. An application is made to the crown for a charter to incorporate a religious and literary institution. In the application, it is stated that large contributions have been made for the object, which will be conferred on the corporation, as soon as it shall be created. The charter is granted, ánd on its faith the property is conveyed. .Surely in this transaction every ingredient of a complete and legitimate contract is to be found.

The points for consideration are,

1. Is this contract protected by the constitution oí the United States ?

2. Is it impaired by the acts under which the defendant holds ?

I. On the first point it has been argued, that the word “ contract,7 in its broadest sense, would com- ^ prehend the political relations between the government and its citizens, would extend to offices held within a State for State purposes, and to many of those laws concerning civil institutions* which must change with circumstances, and be modified by ordinary legislation ; which deeply concern the public, and which, to preserve good government, the public judgment must control. That even marriage is a contract, and its. obligations are affected by the laws respecting divorces. That the. clause in the constitution, if construed in its greatest latitude,

The general correctness of these observations cannot be controverted. That the framers of the constitution did not intend to retrain the States in the regulation of their civil institutions, adopted for internal goverment, and that the instrument they have given us, is not to be so construed, may be admitted. The provision of the constitution never has been understood to embrace other contracts, than. those which respect property, or some object of value, and confer rights which may be asserted in a Gourt of justice. It never has been understood to restrict the general right of the legislature to legislate on the subject of divorces. Those acts enable some tribunal, not to impair a marriage contract, but to liberate one of the parties because it has been broken by the other. When any State legislature shall pass an act annulling all marriage contracts, or allowing either party to annul it without the consent of the other, it will be time enough to inquire, whether such an act be constitutional.

The parties in this case differ less on general principles, less on the true construction of the constitution in the abstract, than on the application of those principles to this case, and on the true construction of the charter of 1769. This is the point on which the cause essentially depends. If the act of incor-. poratióli Tsé a grant of political power, if it create a civil institution to be employed in the administration ef. the' government, or if the funds of the college be

But if this be a private eleemosynary institution, endowed with a capacity to take property for objects unconnected with government, whose funds are bestowed by individuals on the faith of the charter ; if the donors have stipulated for the future disposition and management of those funds in the manner prescribed by themselves; there may be more difficulty in the case, although neither the persons who have made these stipulations, nor those for whose benefit they were made, should be parties to the cause. Those who are no longer interested in the property, may yet retain such an interest in the preservation of their own arrangements, as to have a right to insist, that those arrangements shall be held sacred. Or, if they have themselvés disappeared, it, becomes a subject of serious and anxious inquiry, whether those whom they have legally empowered to represent them forever, may not assert all the rights which they possessed, while in being; whether, if they be without personal representatives who may feel injured by a violation of the compact, the trustees be not so completely their representatives in theeye of the law, as to stand in their place, not only as respects the government of the college, but also as respects the maintenance of the college charter.

It becomes then the duty of the Court most

. . _ From the instrument itself, it appears, that about the year 1754, the Rev. Eleazer Wheelock established at his own expense, and on his own estate, a charity school for the instruction of Indians in the Christian religion. The success of this institution inspired him with the design of soliciting contributions in England for carrying on, and extending, his undertaking. In this pious work he employed the Rev. Nathaniel Whitaker, who, by virtue of a power, of. attorney from Dr. Wheelock, appointed the Earl o£ Dartmouth and others, trustees of the money, which had been, and should be, contributed:; which appointment Dr. Wheelock confirmed by a deed of trust authorizing the trustees to fix on a site for the. college. They determined to establish the school ou Connecticut river, in the western part of New-Hampshire ; that situation being supposed favourable for. carrying on the original design: among the Indians, and also for promoting learning among the English ; and; the proprietors in the neighbourhood having made large offers of land, on condition, that the college, should there be placed. Dr. Wheelock then applied to the crown, for an act. of incorporation ; and represented the expediency of appointing those whom he had, by his last will, named as trustees, in America, tobe members of.the proposed corporation. “ In consideration of the premises,” “ for the education and instruction of the youth of the Indian tribes,” &c. “ and also of English youth* and: any others,” the charter was granted, and the trustees of Dartmouth College were by that name created a body

The charter proceeds to appoint Eleazer Wheelock, u the founder of said college,’’ president thereof, with power by his last will to appoint a successor, who is to continue in office until'disapproved by the. trustees. In case of vacancy, the trustees may appoint a president, and in case of the ceasing of a president, the senior professor or tutor, being one of the trustees, shall exercise the office, until an appointment shall be made. The trustees have power to appoint arid displace professors, tutors, and other officers, and to supply any vacancies which may be created in their own body, by death, resignation, removal, or disability ; and also to make orders, ordinances, and laws, for the government of the college, the same not being repugnant to the laws of Great Britain, or of New-Hampshire, and not excluding any person on account of his speculative sentiments in religion, or his being of a religious profession different from that of the trustees.

This charter was accepted, and the property both real and personal, which had been contributed for the benefit of the college, was conveyed ito, and vested in, the corporate body;

From this brief review of the most essential parts of the charter, it is apparent, that the funds of the college consisted entirely of private donations. It is, perhaps, not very important, who were the donors.The probability is, that the Earl of Dartmouth, and. the other trustees in England, were, in fact, the largest

Whence, then, can be derived the idea, that Dartmouth College has become a public institution, and its trustees public officers, exorcising powers conferred by the public for public objects ? Not from the source whence its funds were drawn; for its foundation is purely private and eléemosynary — Not from the application of those funds; for money may be given for education, and the persons receiving it do not, by being employed in the education of youth, become, members of the. civil government. Is it from

A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it, either expressly, ór as incidental to its very existence. These are such as are supposed best calculated to effect the object for which' it was created. Among the most important are immortality, and, if the expression may be allowed, individuality ; properties, by which a perpetual succession of many persons are considered as the same, and may act as a single individual; They enable a corporation to manage its own affairs, and to hold property without , the perplexing intricacies, the hazardous and endless necessity, of perpetual conveyances for the purpose of transmitting it from hand to hand. It is chiefly for the purpose of clothing bodies of men, in succession, with these Qualities and capacities, that corporations were invented,-apd are in use. By these means, a perpetual succession of individuals, are capable of acting for the promotion of the particular object, like one immortal being. But this being does' not share in the civil government of the country, unless that be the purpose for which it was created. Its immortality no more confers on it political power, or a political character, than immortality would confer such power or character on a natural person. It is no more a State instrument, than a natural person exercising the same powers would be. If, then, a natural person, em

The objects for which a corporation is created are universally such as the government wishes to promote. They are deemed beneficial to the country ; and this benefit constitutes the consideration, and, in most cases, the sole consideration of the grant. In most eleemosynary institutions, the object would be difficult, perhaps unattainable, without the aid of a charter of incorporation. Charitable, or public spi* rited individuals, désirous of making permanent appropriations for charitable or other useful purposes, find it impossible to effect their design securely, and certainly, without an incorporating act. They apply to the government, state their beneficent object, and offer to advance the money necessary for its accom

. . capacity to execute them. The proposition is considered and approved. The benefit to the public is considered as an ample compensation for the faculty it confers, and the corporation is created. If the advantages to the public constitute a full compensation for the faculty it gives, there can be no reason for exacting a further compensation, by claiming a right to exercise over this artificial being a power which changes its nature, and touches the fund, fbr the security and application óf which it was created. There can be no reason for implying in a charter, given for a valuable consideration, a power which is not only not expressed,, but is in direct contradiction to. its express stipulations.

From the fact, then, that a charter of incorporation has been granted, nothing, can be inferred which changes the character of the institution, or transfers to the government any new power over it. The character of civil institutions does not grow out of their incorporation, but out of the manner in which they-are formed, and the objects for which they are created. The, right to change them is not founded on their.being incorporated, but on their being the instruments of government, created for its purposes. The . same institutions, created for the same objects,, though not incorporated, would be public institutions, and, qf course, be controllable by the. legislature'. The incorporating act neither gives nor prevents this control. Neither, in reason, can the incorporating act

We are next led to the inquiry, for. whose benefit the property given to Dartmouth College was secured ? The counsel for the defendant have insisted, that the beneficial interest is in the people of New-Hampshire. The charter, after reciting the preliminary measures which had been taken, and the application for an act of incorporation, proceeds thus : “ 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,” &c. Do these expressions bestow on New-Hampshire any exclusive right to the property of the college, any exclusive interest in the labours of the professors ? Or do they merely indicate -a willingness that New-Hampshire should enjoy those advantages which result to all from the establishment of a seminary of learning in the neighbourhood ? On this point we think it impossible to entertain a serious doubt. The words themselves, unexplained by the context, indicate, that the “benefit intended for the province” is that which is derived from “ establishing the best means of education thereinthat is, from establishing in the province Dartmouth College, as constituted by the charter. But, if these words, considered alone, could admit of doubt, that

1 he particular interests of New-Hampshire never entered into the mind of the donors, never constituted a motive for their donation. The propagation of the Christian religion among the . savages, and the dissemination of useful knowledge among the youth of the country, were the avowed and the sole objects of their contributions. In these, New-Hampshire would participate ; but nothing particular or exclusive was intended for her. Even the site of the college was selected, not for the sake of New-Hampshire, but because it was “ most subservient to the great ends in view,” and because liberal donations of land were offered by the proprietors, on condition that the institution should be there established. The real advantages from the location of the college, are, perhaps, not less considerable to those on the west, than to. those on the east side of Connecticut-river. The clause which constitutes the incorporation, and expresses the objects for which it was made, declares those objects to be the instruction of the Indians, “ and also of English youth, and any others.” So that the objects of the.contributors, and the incorporating act, were the same; the promotion of Christianity^ and of education generally, not the interests of New-Hampshire particularly.

From this review of the charter, it appears, that Dartmouth College is an eleemosynary institution^ incorporated for the purpose of perpetuating the application of the bounty of the donors, to the specified objects of that bounty; that its trustees or governors

Yet a question remains to be considered, of more real difficulty, on which more doubt has been entertained than on all that have been discussed. The founders of the college, at least those whose contributions were in money, have parted with the property bestowed upon it, and their representatives have no interest in that property. The donors of land are equally without interest, so long as the corporation shall exist.. Could they be found, they are unaffected by any alteration in its constitution, and probably regardless of its form, or even of its existence. The students are fluctuating, and no individual among our youth has a vested interest in the institution, which can be asserted in a Court of justice. Neither the founders of the college, nor the youth for whose benefit it was founded, complain of the alteration made in its charter, or think themselves injured by it. The trustees alone complain, and the trustees have no beneficial interest to be protected. Can this be such a contract, as the constitution intended to withdraw from the power of State legislation ? Contracts, the parties to which have a vested beneficial interest, and those only, it has been said, are the objects about

. 1 he'Court has bestowed on this argument the most deliberate consideration, and the result will be stated. Dr. Wheelock, acting for himself, and for those who, at his solicitation, had made contributions to his school, applied for this charter, as the instrument which should enable him, and them, to perpetuate their beneficent intention. It was granted. An artificial, immortal being, was created by the crown, capable of receiving and distributing forever, according to the will of the. donors, the donations which should be made to it. On this being, the contributions which had been collected were immediately bestowed. These gifts were made, not indeed to make a profit for the donors, or their posterity, but for something in their opinion of inestimable value • for something which they deemed a full equivalent for the money with which ’ it was purchased! The consideration for which they stipulated, is the perpetual application of the fund to its object, in the mode prescribed by themselves. Their descendants may take no interest in the preservation of this consideration. But in this respect their descendants are not their representatives. They are represented by the corporation. The corporation is the assignee of their rights, stands in their place, and distributes their bounty, as they would themselves have distributed it, had they been immortal. So with respect tó the students who are to derive learning, from this source. The corporation is a «Astee for them also. Their potential rights, which, "taken, distributive^,.

' According to the theory of the British constitution, their parliament is omnipotent. To annul corporate rights might give a shock to public opinion, which that government has chosen to avoid ; but its power is not questioned. Had parliament, immediately after the emanation of this charter j and the execution of those conveyances which followed it, annulled the instrument, so that the living donors would. have witnessed . the disappointment of their hopes, the perfidy of the transaction would have-been universally acknowledged. Yet then, as now, the donors would have had no interest in the property ; then, as now, those who might be students would have had no rights to be violated ; then, as now, it might be said, that the trustees, in whom the rights of all were combined, possessed no private, individual, beneficial interest in the property confided to their protection. Yet the contract would at that time have been deemed sacred by all. What has since occurred to strip it of.its inviolability ?' Circumstances have not changed it. In reason, injustice, and in law, it is now what it was in 1769.

This is plainly a contract to which the donors, the trustees, and the crown, (to whose rights and obligations New-Hampshire succeeds,) were the original

It is more than possible, that the preservation of rights of this description was not particularly in the view of the framers of the constitution, when the clause under consideration was introduced into that instrument. It is probable, that interferences of more frequent recurrence, to which the temptation was stronger, and of which the mischief was more extensive, constituted the great motive for imposing this restriction on the State legislatures. But although a particular and a rare case may not, in itself, be of sufficient magnitude to induce a rule, yet it must be governed by the rule, when established, unless some plain and strong reason for excluding it can be given. It is not enough to say, that this particular case was not in the mind of the Convention, when the article was framed, nor of the American people, when, it was adopted. It is necessary to go farther, and to say that, had this particular case been suggested, the language would have been so varied, as to exclude it, or it would have been made a special exception. The

On what safe and intelligible ground can this exception stand. There is no expression in the constitution, no sentiment delivered by its contemporaneous expounders, which would justify us in making it. In the absence of all authority of this kind, is there, in the nature and reason of the case itself, that which would sustain a construction of the constitution, not warranted by its words ? Are contracts of this description of a character to excite so little interest, that we must exclude them from the provisions of the constitution, as being unworthy of the attention of those who framed the instrument ? Or does public policy so imperiously demand their remaining exposed to legislative alteration, as to compel us, or rather permit us to say, that these words, which were introduced to give stability to contracts, and which in their plain import comprehend this contract, must yet be so construed, as to exclude it ?

Almost all eleemosynary corporations, those which are created for the promotion of religion, of charity, or of education, are of the same character. The law of this case is the law of all. In every literary or charitable institution, unless the objects of the bounty be themselves incorporated, the whole legal interest is in trustees, and can be asserted only by them. The donors, or claimants of the bounty, if

All feel, that these objects are not deemed unimportant in the United States. The interest which this case has excited, proves, that they are not. The framers of the constitution did not deem them unworthy of its care and protection. . They have, though in a different mode, manifested their respect for science, by reserving to the government of the Union the power “ to promote the progress of science and useful arts, by securing for limited times, to authors and inventors, the exclusive right to their respéctive writings and discoveries.” They have so far withdrawn science, and the useful arts, from the action of the State governments. Why then should they be supposed so regardless of contracts made for the advancement of literature, as to. intend to exclude them from provisions, made for the security

The motives suggested at the bar grow out of the original appointment of the trustees, which is supposed to have been in a spirit hostile to the genius of our government, and the presumption, that, if allowed to continue themselves, they now are, and must remain forever, what they, originally were. Hence is inferred the necessity of applying to this corporation, and to other similar corporations, the correcting and improving hand of the legislature.

It has been urged repeatedly, and certainly with a degree of earnestness which attracted attention, that the trustees deriving their power from a regal source, must, necessarily, partake of the spirit of their origin; and that their first principles, unimproved by that resplendent light which has been shed around them, must continue to govern the college, and to guide the students. Before wre inquire into the influence which this argument ought to have on the constitutional question, it may not be amiss to examine the fact on which it rests. The first trustees were undoubtedly named in the charter by the crown; but at whose suggestion were they named P By whom were they

The only evidence which we possess of the character of Dr. Wheelock is furnished by this 'charter. The judicious means employed for the accomplishment of his object, and the success whiéh attended his endeavours, would lead to the opinion* that he united a sound understanding to that humanity and

The opinion of the Court, after mature deliberation, is, that this is a contract, the obligation, of w'hich cannot be impaired, without violating the constitution of the United States. This opinion appears to us to be equally supported by reason, and by the former decisions of this Court.

2. We next proceed to the inquiry, w'hether its obligation has been impaired by those acts of the legislature of New-Hampshire, to which the special verdict refers.

By the revolution, the duties, as well as the powers, of government, devolved on the people of NeW-Hampshire. It is admitted, that among the latter was comprehended the transcendent power of parliament, as well as that of the executive department. It is too clear to require the support of argument, that all contracts, and rights, respecting property, remained unchanged by the revolution. The obligar tions then, which were created by the charter to Dartmouth College, were the same in the new, that they had been in the old government. The power •of the government was also the same. A repeal of this charter at any time prior to the adoption of the present constitution of tlie United States, would have been an extraordinary and unprecedented act of power, but one which could have been contested only by the restrictions upon the legislature, to be found in the constitution of the State. But the constitution @f the United States has imposed this additional li

It has been already stated, that the act “ to amend the charter, and enlarge and improve the corporation of Dartmouth College,” increases the number of trustees to. twenty-one, gives the appointment of the additional members to the executive of the State, and creates a board of overseers, to consist of twenty-five persons, of whom twenty-one are also appointed by the executive of New-Hampshire, who have power to inspect and control the most important acts of the trustees.

On the effect of this law, two opinions cannot be entertained. Between acting directly, and acting through the agency of trustees and overseers, no essential difference is perceived. The whole power of governing the college is transferred from trustees appointed according to the will of the founder, expressed in the charter, to the executive of New-Hampshire. The management and application of the funds of this eleemosynary institution, which are placed by the donors in the hands of trustees named in the charter, and empowered to perpetuate themselves, are placed by this act under the control of the government of the State. The will of the State is substituted forthe will of the donors, in every essential operation of the college. This is not an immaterial change. The founders of the college contracted, not merely for the perpetual application of the funds which they gave, to the objects for which those funds were given; they contracted also, to secure that application by the constitution of the cor

. In the view which has been taken of this interesting case, the Court has confined itself to the rights possessed by the trustees, as the assignees and representatives of the donors and founders, for the benefit of religion and literature. Yet it is not clear, that the trustees ought to be considered as destitute of such beneficial interest in themselves, as the law may respect. In addition to their being the legal owners of the property, and to their having a freehold right in the powers confided to them, the charter itself countenances the idea, that trustees may also be tutors with salaries. The first president was one of the original trustees; and the charter provides, that in ease of vacancy in that office, i£ the senior professor or tutor, being one of the trustees, shall exercise the office of president, until the trustees shall make choice

But the Court has deemed it unnecessary to investigate this particular point, being of opinion, on general principles, that in these private eleemosynary institutions, the body corporate, as possessing the whole legal and equitable interest, and completely representing the donors, for the purpose of executing the trust, has rights which are protected by the constitution.

>It results from this opinion, that the acts of the legislature of New-Hampshire, which are stated in the special verdict found in this cause, are repugnant to the constitution of the United Státes ; and that the judgment on this special verdict ought to have been for the plaintiffs. The judgment of the State Court must, therefore, be reversed.

¡-This cause turns upon the validity of certain laws of the State of New-H.iinpsinre, which have been stated in the case, and which, it is contended by the counsel for the plaintiffs

The clause in the constitution of the United States which was drawn in question in the Court from whence this transcript has been sent, is that part of the tenth section of the first article, which declares, that “ no State shall pass any bill of attainder, ex post facto law, or any law impairing the obligation of contracts.” The decision of the State Court is against the title specially claimed by the plaintiffs in error, under the above clause, because they contend, that the laws of New-Hampshire, above referred to,

These corporations, civil and eleemosynary, which differ from each other so especially in their nature and constitution, may very well differ in matters wiiich concern their rights and privileges, and their, existence and subjection to public control. The one .is the mere, creature of public institution, created exclusively for the public advantage, without other endowments than such as the king or government may bestow upon it, and having no other founder or visitor than the king or government, the fundator incipiens.

It has been shown, that the charter is a contract on the part of the government, that the property with which the charity is endowed, shall be for ever vested in a certain number of persons, and their successors, to subserve the particular purposes designated by the founder, and to be managed in a particular way. If a law increases or diminishes the number of the trustees, they are not the persons which the grantor agreed should be the managers of the fund. If it appropriate the fund intended for the support of a particular charity to that .of some other charity, or to an entirely different charity, the grant is in effect set aside, and a new contract substituted in its place; thus disappointing completely the intentions of the founder, by changing the objects of his bounty. And can it be seriously contended, that a law, which. changes so materially the terms of á contract, does not impair it ? In short, does not every alteration of a contract, however unimportant, even though it be manifestly for the interest of the party objecting to it, impair its obligation ? If the assent of all the parties to be bound by a contract be of its essence, how

^ these principles, before laid down, be correct, it cannot he denied, that the obligations of the charter to Dartmouth College are impaired by the laws under consideration. The name of the corporation, its constitution and government, and the objects of the founder, and of the grantor of the charter, are totally changed. By the charter, the property of this founder was vested in twelve trustees, and no more, to be disposed of by them, or a majority, for the support of a college, for the education and instruction of the Indians, and also of English youth, and others. Under the late acts, the trustees and visitors are different; and the property and franchises of the college are transferred to different and new uses, not contemplated by the founder. In short, it is most obvious, that the effect of these laws is to abolish the old corporation, and to create a new one in its stead. The laws of Virginia, referred to in the case of Terrett v. Taylor, authorized the overseers of the poor to sell the glebes belonging to the Protestant Episcopal Church, and to appropriate the proceeds to other uses. The laws in question devest the trustees of Dartmouth College of the property vested' in them

It has been insisted in the argument at the bar, that Dartmouth College was a mere civil corporation, created for a public purpose, the public being deeply interested in the education of its youth; and that, consequently, the charter was as much under the control of the government of New-Hampshire, as if the corporation had concerned the government of a town or city. But it has been shown, that the authorities are all the other way. There is not a case to be found which contradicts the doctrine laid down in the case of Philips v. Bury, viz. that a college founded by an individual, or individuals, is a private charity, subject to the government and visitation of the founder, and not' to the unlimited control of the government.

It is objected, in this case, that Dr. Wheelock is not the founder of Dartmouth College. Admit he is not.. How would this alter the case? Neither the king, nor the province of NewrHampshire was the founder; and if the contributions made by the governor of New-Hampshire, by those persons who

Upon the whole, I am of opinion, that the above acts of New-Hampshire, not having received the assent of the corporate body of Dartmouth College, are not binding on them, and, consequently, that the judgment of the State Court ought to be reversed.

Mr. Justice Johnson concurred, for the reasons stated by the Chief Justice.

Mr. Justice Livingston concurred, for the reasons , .stated by the Chief Justice, arid Justices Washington and StoryI

This is a cause , of great importance, and as the very learned discussions, ás well here, as«in the State Court, show, of no inconsiderable difficulty. There are two questions, to which the appellate jurisdiction of this Court properly applies.

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

An aggregate corporation at common law is a collection of individuals united into one collective body, under a special name, and possessing certain immunities, privileges, and capacities in its collective character, which do not belong to the natural persons composing it. Among other things it possesses the capacity of perpetual succession, and of acting by the collected vote or will of its component members, and of suing and being sued in all things touching its corporate rights and duties. It is, in short, an artificial person, existing in contemplation of law, and endowed with certain powers and franchises which, though they must be exercised through the medium of' its natural members, are yet considered as subsisting in the corporation,itself, as distinctly as if it were a real personage. Hence, such a corporation may sue and be sued by its own members; and

This reasoning applies in its full force to eleemosynary corporations. A hospital founded by a private benefactor is, in point of law, a private corporation, although dedicated by its charter to general charity. So a college, founded and endowed in the same manner, although, being for the promotion of learning and piety, it may extend its charity to scholars from every class in the community, and thus acquire the character of a public institution. This is the unequivocal doctrine of the authorities; and cannot be

Such are the most material clauses of the charter. It is observable, in the first place, that no endowment whatever is given by the crown; ánd no power is reserved to the crown or government in any manner to alter, amend, or control the charter. It is also appa

From this summary examination it follows, that Dartmouth College was, under its original charter, a private eleemosynary corporation, endowed with

But it is objected, that the charter of Dartmouth College is not a contract contemplated by the constitution, because no valuable consideration passed to the king as an equivalent for the, grant, it purporting to be granted ex mg'o motu, and further, that no contracts merely voluntary are within the prohibitory clause. It must be admitted, that mere executory contracts cannot be enforced at law, unless there be a valuable consideration to sustain them; and the constitution certainly did not mean to create any new obligations, or give any new efficacy to nude pacts. But it must; on the other hand, be also admitted, that the constitution did intend to preserve all the obligatory force of.contracts, which they have by the general principles of law. Now, when a contract has once passed, bona fide, into grant, neither the king nor any private person, who may be the grantor, can recaí the grant of the property, although the conveyance may have been purely voluntary. A gift, completely executed', is irrevocable. The property conveyed by it becomes, as against the donor, the absolute property of the donee ; and no Subsequent change of intention of the donor can change the rights of the donee.a And a gift by the crown of incorporeal hereditaments, such as corporate franchises, when executed, comes completely

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

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

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

If this had been a new charter granted to an existing corporation, or a grant of lands to an existing corporation, there could not have been a doubt, that the grant would have been an executed contract with the corporation; as much so, as if it had been to any private person. But it is supposed, that as this corporation, was not then in existence, but was created and its franchises bestowed, uno'flatu, the charter cannot be construed a contract, because there was no person in rerum natura, with whom it might he made. Is this, however, a juát and legal view of the

Supposing, however, that in eithef of the views which have been suggested, the charter of Dartmouth College is to be deemed a contract, We are yet met with sfeveral objections of another nature.

It is, in the first place, contended, that it is not a contract within the prohibitory clause of the constitution, becapse that clause was never intended to apply to mere contracts of civil institution, such as the contract of marriage, or to grants of power to State officers, or. to contracts relative to their offices, or to grants of trust to be exercised for purposes merely public, where the grantees take no beneficial interest.

It is admitted, that the. State legislatures have

Another objection growing out of, and. connected with that which we have "been considering, is, that no grants are within the constitutional prohibition, except such as respect property in the strict sense of the term; that is to say, beneficial interests in lands, tenements, and hereditaments, &e. &c. which, may be sold by the grantees for their own benefit: and that grants of franchises, immunities, and authorities not .valuable to the parties, as property, are excluded from its purview. No authority has been cited to sustain this distinction, and no reason is perceived to justify its adoption. ' There áre many rights, franchises, and authorities.whigh are valuable in contemplation of law, where no beneficial interest can accrue to the possessor. A grant of the next proSentation to a church, limited to the grantee alone, has been already mentioned. A power of appointment, reserved in a marriage settlement, either1 to a party , or a stranger, to appoint uses ifl favour, of third persons, without compensation, is another in

From this short analysis it is apparent, that, in substance, a new corporation is created including the old corporators, with new powers, and subject to a new' control; or that the old corporation is newly organized and enlarged, and placed under an authority hitherto unknown to it. The board of trustees are increased from twelve to twenty-one. The college becomes a university. The property vested in the old trustees is transferred to the new board of trustees in their corporate capacities. The quorum is no longer seven, but nine. The old trustees have no longer the sole right to perpetuate their succession by electing other trustes, but the nine new trustees are in the first- instance to be appointed by the governor and council, and the new board are then to elect other trustees from time to time as vacancies occur. The new board, too, have the power to suspend or remove any member, so that a minority of the,, old board, co-operating with the newr trustees, possess the unlimited power to remove the majority of the old board. The powers, too, of the corporation are varied. It has authority to organize new colleges in

If these áre'not essential changes, impairing the rights and authorities of the trustees, and vitally affecting the interests and organization of Dartmouth College under its old charter, it is difficult, to conceive what acts, short of an unconditional repeal of the charter, could have that effect. If a grant of land or franchises be made to A., in trust for special purposes, can the grant be revoked, and a new grant thereof be made to A., B., and C., in trust for the same purposes, without violating the obligation of the first grant ? If property be vested by grant in A. and B., for the use of a college, or a hospital, of private foundation, is not the obligation of that grant impaired when the estatu ís taken from their éxclusive management, and vested in them in common with ten other persons ? If a power of appointment be given to A. and B., is it no violation of their right to annul the appointment, unless it be assented to by üve other persons, and then confirmed by a distinct body ? If a bank, or insurance company, by the terms of its charter, be under the management of directors, elected by the stockholders, would not the

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

In pronouncing this judgment, it has not for one moment escaped me how delicate, difficult, and ungracious is the task devolved upon us. The predicament in which this Court stands in relation to the nation at large, is full of perplexities and embarrassments. It is called to decide On causes between citizens of different States, between a State and its citizens; and between different States, It stands, therefore, in the midst of

Judgment. This cause-came on to be heard on the transcript-of the record, and was argued by counsel. And thereupon all and singular the premises being seen, and by the Court now here fully understood, and mature deliberation being thereupon had,