The Great Speeches and Orations of Daniel Webster
Daniel Webster

Part 2 out of 25

individual existence, however deeply they may have influenced that
public opinion which, in the end, determines political events. "I still
live," was Webster's declaration on his death-bed, when the friends
gathered around it imagined he had breathed his last; and the same words
might be uttered by the Speech of the 7th of March, could it possess the
vocal organ which announces personal existence. Between the time it was
originally delivered and the present year there runs a great and broad
stream of blood, shed from the veins of Northern and Southern men alike;
the whole political and moral constitution of the country has
practically suffered an abrupt change; new problems engage the attention
of thoughtful statesmen; much is forgotten which was once considered of
the first importance; but the 7th of March Speech, battered as it is by
innumerable attacks, is still remembered at least as one which called
forth more power than it embodied in itself. This persistence of life is
due to the fact that it was "organized."

Is this power of organization common among orators? It seems to me
that, on the contrary, it is very rare. In some of Burke's speeches, in
which his sensibility and imagination were thoroughly under the control
of his judgment, as, for instance, his speech on Conciliation with
America, that on Economical Reform, and that to the Electors of Bristol,
we find the orator to be a consummate master of the art of so
constructing a speech that it serves the immediate object which prompted
its delivery, while at the same time it has in it a principle of
vitality which makes it survive the occasion that called it forth. But
the greatest of Burke's speeches, if we look merely at the richness and
variety of mental power and the force and depth of moral passion
displayed in it, is his speech on the Nabob of Arcot's Debts. No speech
ever delivered before any assembly, legislative, judicial, or popular,
can rank with this in respect to the abundance of its facts, reasonings,
and imagery, and the ferocity of its moral wrath. It resembles the El
Dorado that Voltaire's Candide visited, where the boys played with
precious stones of inestimable value, as our boys play with ordinary
marbles; for to the inhabitants of El Dorado diamonds and pearls were as
common as pebbles are with us.

But the defect of this speech, which must still be considered, on the
whole, the most inspired product of Burke's great nature, was this,--
that it did not strike its hearers or readers as having _reality_ for
its basis or the superstructure raised upon it. Englishmen could not
believe then, and most of them probably do not believe now, that it had
any solid foundation in incontrovertible facts. It did not "fit in" to
their ordinary modes of thought; and it has never been ranked with
Burke's "organized" orations; it has never come home to what Bacon
called the "business and bosoms" of his countrymen. They have generally
dismissed it from their imaginations as "a phantasmagoria and a hideous
dream" created by Burke under the impulse of the intense hatred he felt
for the administration which succeeded the overthrow of the government,
which was founded on the coalition of Fox and North.

Now, in simple truth, the speech is the most masterly statement of
facts, relating to the oppression of millions of the people of India,
which was ever forced on the attention of the House of Commons,--a
legislative assembly which, it may be incidentally remarked, was
practically responsible for the just government of the immense Indian
empire of Great Britain. It is curious that the main facts on which the
argument of Burke rests have been confirmed by James Mill, the
coldest-blooded historian that ever narrated the enormous crimes which
attended the rise and progress of the British power in Hindostan, and a
man who also had a strong intellectual antipathy to the mind of Burke.
In making the speech, Burke had documentary evidence of a large portion
of the transactions he denounced, and had _divined_ the rest. Mill
supports him both as regards the facts of which Burke had positive
knowledge, and the facts which he deductively inferred from the facts he
knew. Having thus a strong foundation for his argument, he exerted every
faculty of his mind, and every impulse of his moral sentiment and moral
passion, to overwhelm the leading members of the administration of Pitt,
by attempting to make them accomplices in crimes which would disgrace
even slave-traders on the Guinea coast. The merely intellectual force of
his reasoning is crushing; his analysis seems to be sharpened by his
hatred; and there is no device of contempt, scorn, derision, and direct
personal attack, which he does not unsparingly use. In the midst of all
this mental tumult, inestimable maxims of moral and political wisdom are
shot forth in short sentences, which have so much of the sting and
brilliancy of epigram, that at first we do not appreciate their depth of
thought; and through all there burns such a pitiless fierceness of moral
reprobation of cruelty, injustice, and wrong, that all the accredited
courtesies of debate are violated, once, at least, in every five
minutes. In any American legislative assembly he would have been called
to order at least once in five minutes. The images which the orator
brings in to give vividness to his argument are sometimes coarse; but,
coarse as they are, they admirably reflect the moral turpitude of the
men against whom he inveighs. Among these is the image with which he
covers Dundas, the special friend of Pitt, with a ridicule which
promises to be immortal. Dundas, on the occasion when Fox and Burke
called for papers by the aid of which they proposed to demonstrate the
iniquity of the scheme by which the ministry proposed to settle the
debts of the Nabob of Arcot, pretended that the production of such
papers would be indelicate,--"that this inquiry is of a delicate nature,
and that the state will suffer detriment by the exposure of this
transaction." As Dundas had previously brought out six volumes of
Reports, generally confirming Burke's own views of the corruption and
oppression which marked the administration of affairs in India, he laid
himself open to Burke's celebrated assault. Dundas and delicacy, he
said, were "a rare and singular coalition." And then follows an image of
colossal coarseness, such as might be supposed capable of rousing
thunder-peals of laughter from a company of festive giants,--an image
which Lord Brougham declared offended _his_ sensitive taste,--the
sensitive taste of one of the most formidable legal and legislative
bullies that ever appeared before the juries or Parliament of Great
Britain, and who never hesitated to use any illustration, however
vulgar, which he thought would be effective to degrade his opponents.

But whatever may be thought of the indelicacy of Burke's image, it was
one eminently adapted to penetrate through the thick hide of the
minister of state at whom it was aimed, and it shamed him as far as a
profligate politician like Dundas was capable of feeling the sensation
of shame. But there are also flashes, or rather flames, of impassioned
imagination, in the same speech, which rush up from the main body of its
statements and arguments, and remind us of nothing so much as of those
jets of incandescent gas which, we are told by astronomers, occasionally
leap, from the extreme outer covering of the sun, to the height of a
hundred or a hundred and sixty thousand miles, and testify to the
terrible forces raging within it. After reading this speech for the
fiftieth time, the critic cannot free himself from the rapture of
admiration and amazement which he experienced in his first fresh
acquaintance with it. Yet its delivery in the House of Commons (February
28, 1785) produced an effect so slight, that Pitt, after a few minutes'
consultation with Grenville, concluded that it was not worth the trouble
of being answered; and the House of Commons, obedient to the Prime
Minister's direction, negatived, by a large majority, the motion in
advocating which Burke poured out the wonderful treasures of his
intellect and imagination. To be sure, the House was tired to death with
the discussion, was probably very sleepy, and the orator spoke five
hours after the members had already shouted, "Question! Question!"

The truth is, that this speech, unmatched though it is in the literature
of eloquence, had not, as has been previously stated, the air of
reality. It struck the House as a magnificent Oriental dream, as an
Arabian Nights' Entertainment, as a tale told by an inspired madman,
"full of sound and fury, signifying nothing"; and the evident partisan
intention of the orator to blast Pitt's administration by exhibiting its
complicity in one of the most enormous frauds recorded in history,
confirmed the dandies, the cockneys, the bankers, and the country
gentlemen, who, as members of the House of Commons, stood by Pitt with
all the combined force of their levity, their venality, and their
stupidity, in the propriety of voting Burke down. And even now, when the
substantial truth of all the facts he alleged is established on evidence
which convinces historians, the admiring reader can understand why it
failed to convince Burke's contemporaries, and why it still appears to
lack the characteristics of a speech thoroughly organized. Indeed, the
mind of Burke, when it was delivered, can only be compared to a volcanic
mountain in eruption;--not merely a volcano like that of Vesuvius,
visited by scientists and amateurs in crowds, when it deigns to pour
forth its flames and lava for the entertainment of the multitude; but a
lonely volcano, like that of Etna, rising far above Vesuvius in height,
far removed from all the vulgar curiosity of a body of tourists, but
rending the earth on which it stands with the mighty earthquake throes
of its fiery centre and heart. The moral passion,--perhaps it would be
more just to say the moral fury,--displayed in the speech, is elemental,
and can be compared to nothing less intense than the earth's interior
fire and heat.

Now in Webster's great legislative efforts, his mind is never exhibited
in a state of eruption. In the most excited debates in which he bore a
prominent part, nothing strikes us more than the admirable
self-possession, than the majestic inward calm, which presides over all
the operations of his mind and the impulses of his sensibility, so that,
in building up the fabric of his speech, he has his reason, imagination,
and passion under full control,--using each faculty and feeling as the
occasion may demand, but never allowing himself to be used _by_ it,--and
always therefore conveying the impression of power in reserve, while he
may, in fact, be exercising all the power he has to the utmost. In
laboriously erecting his edifice of reasoning he also studiously regards
the intellects and the passions of ordinary men; strives to bring his
mind into cordial relations with theirs; employs every faculty he
possesses to give reality, to give even visibility, to his thoughts; and
though he never made a speech which rivals that of Burke on the Nabob of
Arcot's Debts, in respect to grasp of understanding, astounding wealth
of imagination and depth of moral passion, he always so contrived to
organize his materials into a complete whole, that the result stood out
clearly to the sight of the mind, as a structure resting on strong
foundations, and reared to due height by the mingled skill of the
artisan and the artist. When he does little more than weld his materials
together, he is still an artificer of the old school of giant workmen,
the school that dates its pedigree from Tubal Cain.

After all this wearisome detail and dilution of the idea attempted to be
expressed, it may be that I have failed to convey an adequate impression
of what constitutes Webster's distinction among orators, as far as
orators have left speeches which are considered an invaluable addition
to the literature of the language in which they were originally
delivered. Everybody understands why any one of the great sermons of
Jeremy Taylor, or the sermon of Dr. South on "Man created in the Image
of God," or the sermon of Dr. Barrow on "Heavenly Rest," differs from
the millions on millions of doubtless edifying sermons that have been
preached and printed during the last two centuries and a half; but
everybody does not understand the distinction between one brilliant
oration and another, when both made a great sensation at the time, while
only one survived in literature. Probably Charles James Fox was a more
effective speaker in the House of Commons than Edmund Burke, probably
Henry Clay was a more effective speaker in Congress than Daniel Webster;
but when the occasions on which their speeches were made are found
gradually to fade from the memory of men, why is it that the speeches of
Fox and Clay have no recognized position in literature, while those of
Burke and Webster are ranked with literary productions of the first
class? The reason is as really obvious as that which explains the
exceptional value of some of the efforts of the great orators of the
pulpit. Jeremy Taylor, Dr. South, and Dr. Barrow, different as they were
in temper and disposition, succeeded in "organizing" some masterpieces
in their special department of intellectual and moral activity; and the
same is true of Burke and Webster in the departments of legislation and
political science. The "occasion" was merely an opportunity for the
consolidation into a speech of the rare powers and attainments, the
large personality and affluent thought, which were the spiritual
possessions of the man who made it,--a speech which represented the
whole intellectual manhood of the speaker,--a manhood in which
knowledge, reason, imagination, and sensibility were all consolidated
under the directing power of will.

A pertinent example of the difference we have attempted to indicate may
be easily found in contrasting Fox's closing speech on the East India
Bill with Burke's on the same subject. For immediate effect on the House
of Commons, it ranks with the most masterly of Fox's Parliamentary
efforts. The hits on his opponents were all "telling." The _argumentum
ad hominem_, embodied in short, sharp statements, or startling
interrogatories, was never employed with more brilliant success. The
reasoning was rapid, compact, encumbered by no long enumeration of
facts, and, though somewhat unscrupulous here and there, was driven home
upon his adversaries with a skill that equalled its audacity. It may be
said that there is not a sentence in the whole speech which was not
calculated to sting a sleepy audience into attention, or to give
delight to a fatigued audience which still managed to keep its eyes and
minds wide open. Even in respect to the principles of liberty and
justice, which were the animating life of the bill, Fox's terse
sentences contrast strangely with the somewhat more lumbering and
elaborate paragraphs of Burke. "What," he exclaims, putting his argument
in his favorite interrogative form,--"what is the most odious species of
tyranny? Precisely that which this bill is meant to annihilate. That a
handful of men, free themselves, should exercise the most base and
abominable despotism over millions of their fellow-creatures; that
innocence should be the victim of oppression; that industry should toil
for rapine; that the harmless laborer should sweat, not for his own
benefit, but for the luxury and rapacity of tyrannic depredation;--in a
word, that thirty millions of men, gifted by Providence with the
ordinary endowments of humanity, should groan under a system of
despotism unmatched in all the histories of the world? What is the end
of all government? Certainly, the happiness of the governed. Others may
hold different opinions; but this is mine, and I proclaim it. What,
then, are we to think of a government whose good fortune is supposed to
spring from the calamities of its subjects, whose aggrandizement grows
out of the miseries of mankind? This is the kind of government exercised
under the East Indian Company upon the natives of Hindostan; and the
subversion of that infamous government is the main object of the bill in
question." And afterwards he says, with admirable point and pungency of
statement: "Every line in both the bills which I have had the honor to
introduce, presumes the possibility of bad administration; for every
word breathes suspicion. This bill supposes that men are but men. It
confides in no integrity; it trusts no character; it inculcates the
wisdom of a jealousy of power, and annexes responsibility, not only to
every _action_, but even to the _inaction_ of those who are to dispense
it. The necessity of these provisions must be evident, when it is known
that the different misfortunes of the company have resulted not more
from what their servants _did_, than from what the _masters did not_."

There is a directness in such sentences as these which we do not find in
Burke's speech on the East India Bill; but Burke's remains as a part of
English literature, and in form and substance, especially in substance,
is so immensely superior to that of Fox, that, in quoting sentences from
the latter, one may almost be supposed to rescue them from that neglect
which attends all speeches which do not reach beyond the occasion which
calls them forth. In Bacon's phrase, the speech of Fox shows "small
matter, and infinite agitation of wit"; in Burke's, we discern large
matter with an abundance of "wit" proper to the discussion of the
matter, but nothing which suggests the idea of mere "agitation." Fox, in
his speeches, subordinated every thing to the immediate impression he
might make on the House of Commons. He deliberately gave it as his
opinion, that a speech that read well must be a bad speech; and, in a
literary sense, the House of Commons, which he entered before he was
twenty, may be called both the cradle and the grave of his fame. It has
been said that he was a debater whose speeches should be studied by
every man who wishes "to learn the science of logical defence"; that he
alone, among English orators, resembles Demosthenes, inasmuch as his
reasoning is "penetrated and made red-hot by passion"; and that nothing
could excel the effect of his delivery when "he was in the full paroxysm
of inspiration, foaming, screaming, choked by the rushing multitude of
his words." But not one of his speeches, not even that on the East India
Bill, or on the Westminster Scrutiny, or on the Russian Armament, or on
Parliamentary Reform, or on Mr. Pitt's Rejection of Bonaparte's
Overtures for Peace, has obtained an abiding place in the literature of
Great Britain. It would be no disparagement to an educated man, if it
were said that he had never read these speeches; but it would be a
serious bar to his claim to be considered an English scholar, if he
confessed to be ignorant of the great speeches of Burke; for such a
confession would be like admitting that he had never read the first book
of Hooker's Ecclesiastical Polity, Bacon's Essays and Advancement of
Learning, Milton's Areopagitica, Butler's Analogy, and Adam Smith's
Wealth of Nations.

When we reflect on the enormous number of American speeches which, when
they were first delivered, were confidently predicted, by appreciating
friends, to insure to the orators a fame which would be immortal, one
wonders a little at the quiet persistence of the speeches of Webster in
refusing to die with the abrupt suddenness of other orations, which, at
the time of their delivery, seemed to have an equal chance of renown.
The lifeless remains of such unfortunate failures are now entombed in
that dreariest of all mausoleums, the dingy quarto volumes, hateful to
all human eyes, which are lettered on the back with the title of
"Congressional Debates,"--a collection of printed matter which members
of Congress are wont to send to a favored few among their constituents,
and which are immediately consigned to the dust-barrel or sold to
pedlers in waste paper, according as the rage of the recipients takes a
scornful or an economical direction. It would seem that the speeches of
Webster are saved from this fate, by the fact that, in them, the mental
and moral life of a great man, and of a great master of the English
language, are organized in a palpable intellectual form. The reader
feels that they have some of the substantial qualities which he
recognizes in looking at the gigantic constructions of the master
workmen among the crowd of the world's engineers and architects, in
looking at the organic products of Nature herself, and in surveying,
through the eye of his imagination, those novel reproductions of Nature
which great poets have embodied in works which are indelibly stamped
with the character of deathlessness.

But Webster is even more obviously a poet--subordinating "the shows of
things to the desires of the mind"--in his magnificent idealization, or
idolization, of the Constitution and the Union. By the magic of his
imagination and sensibility he contrived to impress on the minds of a
majority of the people of the free States a vague, grand idea that the
Constitution was a sacred instrument of government,--a holy shrine of
fundamental law, which no unhallowed hands could touch without
profanation,--a digested system of rights and duties, resembling those
institutes which were, in early times, devised by the immortal gods for
the guidance of infirm mortal man; and the mysterious creatures, half
divine and half human, who framed this remarkable document, were always
reverently referred to as "the Fathers,"--as persons who excelled all
succeeding generations in sagacity and wisdom; as inspired prophets, who
were specially selected by Divine Providence to frame the political
scriptures on which our political faith was to be based, and by which
our political reason was to be limited. The splendor of the glamour thus
cast over the imaginations and sentiments of the people was all the more
effective because it was an effluence from the mind of a statesman who,
of all other statesmen of the country, was deemed the most practical,
and the least deluded by any misguiding lights of fancy and abstract

There can be little doubt that Webster's impressive idealization of the
Constitution gave a certain narrowness to American thinking on
constitutional government and the science of politics and legislation.
Foreigners, of the most liberal views, could not sometimes restrain an
expression of wonder, when they found that our most intelligent men,
even our jurists and publicists, hardly condescended to notice the
eminent European thinkers on the philosophy of government, so absorbed
were they in the contemplation of the perfection of their own. When the
great civil war broke out, hundreds of thousands of American citizens
marched to the battle-field with the grand passages of Webster glowing
in their hearts. They met death cheerfully in the cause of the
"Constitution and Union," as by him expounded and idealized; and if they
were so unfortunate as not to be killed, but to be taken captive, they
still rotted to death in Southern prisons, sustained by sentences of
Webster's speeches which they had declaimed as boys in their country
schools. Of all the triumphs of Webster as a leader of public opinion,
the most remarkable was his infusing into the minds of the people of the
free States the belief that the Constitution as it existed in his time
was an organic fact, springing from the intelligence, hearts, and wills
of the people of the United States, and not, as it really was, an
ingenious mechanical contrivance of wise men, to which the people, at
the time, gave their assent.

The constitutions of the separate States of the Union were doubtless
rooted in the habits, sentiments, and ideas of their inhabitants. But
the Constitution of the United States could not possess this advantage,
however felicitously it may have been framed for the purpose of keeping,
for a considerable period, peace between the different sections of the
country. As long, therefore, as the institution of negro slavery lasted,
it could not be called a Constitution of States organically "United";
for it lacked the principle of _growth_, which characterizes all
constitutions of government which are really adapted to the progressive
needs of a people, if the people have in them any impulse which
stimulates them to advance. The unwritten constitution of Great Britain
has this advantage, that a decree of Parliament can alter the whole
representative system, annihilating by a vote of the two houses all laws
which the Parliament had enacted in former years. In Great Britain,
therefore, a measure which any Imperial Parliament passes becomes at
once the supreme law of the land, though it may nullify a great number
of laws which previous Parliaments had passed under different conditions
of the sentiment of the nation. Our Constitution, on the other hand,
provides for the contingencies of growth in the public sentiment only by
amendments to the Constitution. These amendments require more than a
majority of all the political forces represented in Congress; and Mr.
Calhoun, foreseeing that a collision must eventually occur between the
two sections, carried with him, not only the South, but a considerable
minority of the North, in resisting any attempt to limit the _extension_
of slavery. On this point the passions and principles of the people of
the slave-holding and the majority of the people of the
non-slave-holding States came into violent opposition; and there was no
possibility that any amendment to the Constitution could be ratified,
which would represent either the growth of the Southern people in their
ever-increasing belief that negro slavery was not only a good in itself,
but a good which ought to be extended, or the growth of the Northern
people in their ever-increasing hostility both to slavery and its
extension. Thus two principles, each organic in its nature, and
demanding indefinite development, came into deadly conflict under the
mechanical forms of a Constitution which was not organic.

A considerable portion of the speeches in this volume is devoted to
denunciations of violations of the Constitution perpetrated by Webster's
political opponents. These violations, again, would seem to prove that
written constitutions follow practically the same law of development
which marks the progress of the unwritten. By a strained system of
Congressional interpretation, the Constitution has been repeatedly
compelled to yield to the necessities of the party dominant, for the
time, in the government; and has, if we may believe Webster, been
repeatedly changed without being constitutionally "amended." The causes
which led to the most terrible civil war recorded in history were
silently working beneath the forms of the Constitution,--both parties,
by the way, appealing to its provisions,--while Webster was idealizing
it as the utmost which humanity could come to in the way of civil
government. In 1848, when nearly all Europe was in insurrection against
its rulers, he proudly said that our Constitution promised to be the
_oldest_, as well as the best, in civilized states. Meanwhile the
institution of negro slavery was undermining the whole fabric of the
Union. The moral division between the South and North was widening into
a division between the religion of the two sections. The Southern
statesmen, economists, jurists, publicists, and ethical writers had
adapted their opinions to the demands which the defenders of the
institution of slavery imposed on the action of the human intellect and
conscience; but it was rather startling to discover that the Christian
religion, as taught in the Southern States, was a religion which had no
vital connection with the Christianity taught in the Northern States.
There is nothing more astounding, to a patient explorer of the causes
which led to the final explosion, than this opposition of religions. The
mere form of the dogmas common to the religion of both sections might be
verbally identical; but a volume of sermons by a Southern doctor of
divinity, as far as he touched on the matter of slavery, was as
different from one published by his Northern brother, in the essential
moral and humane elements of Christianity, as though they were divided
from each other by a gulf as wide as that which yawns between a Druid
priest and a Christian clergyman.

The politicians of the South, whether they were the mouthpieces of the
ideas and passions of their constituents, or were, as Webster probably
thought, more or less responsible for their foolishness and bitterness,
were ever eager to precipitate a conflict, which Webster was as eager to
prevent, or at least to postpone. It was fortunate for the North, that
the inevitable conflict did not come in 1850, when the free States were
unprepared for it. Ten years of discussion and preparation were allowed;
when the war broke out, it found the North in a position to meet and
eventually to overcome the enemies of the Union; and the Constitution,
not as it _was_, but as it _is_, now represents a form of government
which promises to be permanent; for after passing through its baptism of
fire and blood, the Constitution contains nothing which is not in
harmony with any State government founded on the principle of equal
rights which it guarantees, and is proof against all attacks but those
which may proceed from the extremes of human folly and wickedness. But
that, before the civil war, it was preserved so long under conditions
which constantly threatened it with destruction, is due in a
considerable degree to the circumstance that it found in Daniel Webster
its poet as well as its "expounder."

In conclusion it may be said that the style of Webster is pre-eminently
distinguished by manliness. Nothing little, weak, whining, or
sentimental can be detected in any page of the six volumes of his works.
A certain strength and grandeur of personality is prominent in all his
speeches. When he says "I," or "my," he never appears to indulge in the
bravado of self-assertion, because the words are felt to express a
positive, stalwart, almost colossal manhood, which had already been
implied in the close-knit sentences in which he embodied his statements
and arguments. He is an eminent instance of the power which character
communicates to style. Though evidently proud, self-respecting, and
high-spirited, he is ever above mere vanity and egotism. Whenever he
gives emphasis to the personal pronoun the reader feels that he had as
much earned the right to make his opinion an authority, as he had earned
the right to use the words he employs to express his ideas and
sentiments. Thus, in the celebrated _Smith Will_ trial, his antagonist,
Mr. Choate, quoted a decision of Lord Chancellor Camden. In his reply,
Webster argued against its validity as though it were merely a
proposition laid down by Mr. Choate. "But it is not mine, it is Lord
Camden's" was the instant retort. Webster paused for half a minute, and
then, with his eye fixed on the presiding judge, he replied: "Lord
Camden was a great judge; he is respected by every American, for he was
on our side in the Revolution; but, may it please your honor, _I_ differ
from my Lord Camden." There was hardly a lawyer in the United States who
could have made such a statement without exposing himself to ridicule;
but it did not seem at all ridiculous, when the "I" stood for Daniel
Webster. In his early career as a lawyer, his mode of reasoning was such
as to make him practically a thirteenth juror in the panel; when his
fame was fully established, he contrived, in some mysterious way, to
seat himself by the side of the judges on the bench, and appear to be
consulting with them as a jurist, rather than addressing them as an
advocate. The personality of the man was always suppressed until there
seemed to be need of asserting it; and then it was proudly pushed into
prominence, though rarely passing beyond the limits which his
acknowledged eminence as a statesman and lawyer did not justify him in
asserting it. Among the selections in the present volume where his
individuality becomes somewhat aggressive, and breaks loose from the
restraints ordinarily self-imposed on it, may be mentioned his speech on
his Reception at Boston (1842), his Marshfield Speech (1848), and his
speech at his Reception at Buffalo (1851). Whatever may be thought of
the course of argument pursued in these, they are at least thoroughly
penetrated with a manly spirit,--a manliness somewhat haughty and
defiant, but still consciously strong in its power to return blow for
blow, from whatever quarter the assault may come.

But the real intellectual and moral manliness of Webster underlies all
his great orations and speeches, even those where the animating life
which gives them the power to persuade, convince, and uplift the
reader's mind, seems to be altogether impersonal; and this plain force
of manhood, this sturdy grapple with every question that comes before
his understanding for settlement, leads him contemptuously to reject all
the meretricious aids and ornaments of mere rhetoric, and is prominent,
among the many exceptional qualities of his large nature, which have
given him a high position among the prose-writers of his country as a
consummate master of English style.






[The action, The Trustees of Dartmouth College v. William H. Woodward,
was commenced in the Court of Common Pleas, Grafton County, State of New
Hampshire, February term, 1817. The declaration was trover for the books
of record, original charter, common seal, and other corporate property
of the College. The conversion was alleged to have been made on the 7th
day of October, 1816. The proper pleas were filed, and by consent the
cause was carried directly to the Superior Court of New Hampshire, by
appeal, and entered at the May term, 1817. The general issue was pleaded
by the defendant, and joined by the plaintiffs. The facts in the case
were then agreed upon by the parties, and drawn up in the form of a
special verdict, reciting the charter of the College and the acts of the
legislature of the State, passed June and December, 1816, by which the
said corporation of Dartmouth College was _enlarged_ and _improved_, and
the said charter _amended_.

The question made in the case was, whether those acts of the legislature
were valid and binding upon the corporation, without their acceptance or
assent, and not repugnant to the Constitution of the United States. If
so, the verdict found for the defendants; otherwise, it found for the

The cause was continued to the September term of the court in Rockingham
County, where it was argued; and at the November term of the same year,
in Grafton County, the opinion of the court was delivered by Chief
Justice Richardson, in favor of the validity and constitutionality of
the acts of the legislature; and judgment was accordingly entered for
the defendant on the special verdict.

Thereupon a writ of error was sued out by the original plaintiffs, to
remove the cause to the Supreme Court of the United States; where it was
entered at the term of the court holden at Washington on the first
Monday of February, 1818.

The cause came on for argument on the 10th day of March, 1818, before
all the judges. It was argued by Mr. Webster and Mr. Hopkinson for the
plaintiffs in error, and by Mr. Holmes and the Attorney-General (Wirt)
for the defendant in error.

At the term of the court holden in February, 1819, the opinion of the
judges was delivered by Chief Justice Marshall, declaring the acts of
the legislature unconstitutional and invalid, and reversing the judgment
of the State Court. The court, with the exception of Mr. Justice Duvall,
were unanimous.

The following was the argument of Mr. Webster for the plaintiffs in

The general question is, whether the acts of the legislature of New
Hampshire of the 27th of June, and of the 18th and 26th of December,
1816, are valid and binding on the plaintiffs, _without their acceptance
or assent_.

The charter of 1769 created and established a corporation, to consist of
twelve persons, and no more; to be called the "Trustees of Dartmouth
College." The preamble to the charter recites, that it is granted on the
application and request of the Rev. Eleazer Wheelock: That Dr. Wheelock,
about the year 1754, established a charity school, at his own expense,
and on his own estate and plantation: That for several years, through
the assistance of well-disposed persons in America, granted at his
solicitation, he had clothed, maintained, and educated a number of
native Indians, and employed them afterwards as missionaries and
schoolmasters among the savage tribes: That, his design promising to be
useful, he had constituted the Rev. Mr. Whitaker to be his attorney,
with power to solicit contributions, in England, for the further
extension and carrying on of his undertaking; and that he had requested
the Earl of Dartmouth, Baron Smith, Mr. Thornton, and other gentlemen,
to receive such sums as might be contributed, in England, towards
supporting his school, and to be trustees thereof, for his charity;
which these persons had agreed to do: That thereupon Dr. Wheelock had
executed to them a deed of trust, in pursuance of such agreement between
him and them, and, for divers good reasons, had referred it to these
persons to determine the place in which the school should be finally
established: And, to enable them to form a proper decision on this
subject, had laid before them the several offers which had been made to
him by the several governments in America, in order to induce him to
settle and establish his school within the limits of such governments
for their own emolument, and the increase of learning in their
respective places, as well as for the furtherance of his general
original design: And inasmuch as a number of the proprietors of lands in
New Hampshire, animated by the example of the Governor himself and
others, and in consideration that, without any impediment to its
original design, the school might be enlarged and improved, to promote
learning among the English, and to supply ministers to the people of
that Province, had promised large tracts of land, provided the school
should be established in that Province, the persons before mentioned,
having weighed the reasons in favor of the several places proposed, had
given the preference to this Province, and these offers: That Dr.
Wheelock therefore represented the necessity of a legal incorporation,
and proposed that certain gentlemen in America, whom he had already
named and appointed in his will to be trustees of his charity after his
decease, should compose the corporation. Upon this recital, and in
consideration of the laudable original design of Dr. Wheelock, and
willing that the best means of education be established in New
Hampshire, for the benefit of the Province, the king granted the
charter, by the advice of his Provincial Council.

The substance of the facts thus recited 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, namely, 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
schoolmasters as they may see fit to employ among 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. 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.

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 any 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 in
a single board. In the other, it is divided between two boards. Although
the act professes to 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 trustees 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 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 is
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 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

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 for the purpose of limiting the
exercise of the legislative power, and which the Constitution of New
Hampshire expresses with great fulness 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.[1] Their effect and object are
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 very rarely attempted the
exercise of this power. 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 violation of the charter; 3d. That the charter
had been abused and justly forfeited.[2] 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
the Second 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.[3] By the Revolution, this power may be considered as
having devolved on the legislature of 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."[4] After forfeiture duly found, the
king may re-grant 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.[5] In
case of a new charter or grant to an existing corporation, it may accept
or reject it as it pleases.[6] It may accept such part of the grant as
it chooses, and reject the rest.[7] 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.[8]
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
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 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 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 to their honors
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 others.[9] Some
corporations are for government and political arrangement; such, for
example, as cities, counties, and 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 are all hospitals for
the maintenance of the poor, sick, and impotent; and all colleges both
in our universities and out of them."[10] 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 a 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."[11]

The legal signification of _a charity_ is derived chiefly from the
statute 43 Eliz. ch. 4. "Those purposes," says Sir William Grant, "are
considered _charitable_ which that statute enumerates."[12] Colleges are
enumerated as charities in that statute. The government, in these cases,
lends its aid to perpetuate the beneficent 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.[13] 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 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 may
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.[14] 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, as far as
permitted so to do by the charter.[15] 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

The leading case on this subject is _Phillips v. Bury_.[17] 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. Lord Holt's
judgment, copied from his own manuscript, is found in 2 Term Reports.
346. The following is an extract:--

"That we may the better apprehend the nature of a visitor, we are
to consider that there are in law two sorts of corporations
aggregate; such as are for public government, and such as are for
private charity. Those that are for the public government of a
town, city, mystery, or the like, being for public advantage, are
to be governed according to the laws of the land. If they make any
particular private laws and constitutions, the validity and justice
of them is examinable in the king's courts. Of these there are no
particular private founders, and consequently no particular
visitor; there are no patrons of these; therefore, if no provision
be in the charter how the succession shall continue, the law
supplieth the defect of that constitution, and saith it shall be by
election; as mayor, aldermen, common council, and the like. But
_private_ and particular corporations for charity, founded and
endowed by private persons, are subject to the private government
of those who erect them; and therefore, if there be no visitor
appointed by the founder, the law appoints the founder and his
heirs to be visitors, who are to act and proceed according to the
particular laws and constitutions assigned them by the founder. It
is now admitted on all hands that the founder is patron, and, as
founder, is visitor, if no particular visitor be assigned; so that
patronage and visitation are necessary consequents one upon
another. For this visitatorial power was not introduced by any
canons or constitutions ecclesiastical (as was said by a learned
gentleman whom I have in my eye, in his argument of this case); it
is an appointment of law. It ariseth from the property which the
founder had in the lands assigned to support the charity; and as he
is the author of the charity, the law gives him and his heirs a
visitatorial power, that is, an authority to inspect the actions
and regulate the behavior of the members that partake of the
charity. For it is fit the members that are endowed, and that have
the charity bestowed upon them, should not be left to themselves,
but pursue the intent and design of him that bestowed it upon them.
_Now, indeed, where the poor, or those that receive the charity,
are not incorporated, but there are certain trustees who dispose of
the charity, there is no visitor, because the interest of the
revenue is not vested in the poor that have the benefit of the
charity, but they are subject to the orders and directions of the
trustees._ But where they who are to enjoy the benefit of the
charity are incorporated, there to prevent all perverting of the
charity, or to compose differences that may happen among them,
there is by law a visitatorial power; and it being a creature of
the founder's own, it is reason that he and his heirs should have
that power, unless by the founder it is vested in some other. Now
there is no manner of difference between a college and a hospital,
except only in degree. A hospital is for those that are poor, and
mean, and low, and sickly; a college is for another sort of
indigent persons; but it hath another intent, to study in and breed
up persons in the world that have no otherwise to live; but still
it is as much within the reasons as hospitals. And if in a hospital
the master and poor are incorporated, it is a college having a
common seal to act by, although it hath not the name of a college
(which always supposeth a corporation), because it is of an
inferior degree; and in the one case and in the other there must be
a visitor, either the founder and his heirs or one appointed by
him; and both are eleemosynary."

Lord Holt concludes his whole argument by again repeating, that that
college was a _private corporation_, and that the founder had a right to
appoint a visitor, and to give him such power as he saw fit.[18]

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 similar corporations. It is to the
following effect: "That this absolute and conclusive power of visitors
is no more than the law hath appointed in other cases, upon commissions
of charitable uses: that the common law, and not any ecclesiastical
canons, do place the power of visitation in the founder and his heirs,
_unless he settle it upon others_: that although corporations for public
government be subject to the courts of Westminster Hall, which have no
particular or special visitors, yet corporations for charity, founded
and endowed by private persons, are subject to the rule and government
of those that erect them; but where the persons to whom the charity is
given are not incorporated, there is no such visitatorial power, because
the interest of the revenue is not invested in them; but where they are,
the right of visitation ariseth from the foundation, and the founder may
convey _it to whom and in what manner he pleases; and the visitor acts
as founder, and by the same authority which he had, and consequently is
no more accountable than he had been_: that the king by his charter can
make a society to be incorporated so as to have the rights belonging to
persons, as to legal capacities: that colleges, although founded by
private persons, are yet incorporated by the king's charter; but
although the kings by their charter made the colleges to be such in law,
that is, to be legal corporations, yet they left to the particular
founders authority to appoint what statutes they thought fit for the
regulation of them. And not only the statutes, but the appointment of
visitors, was left to them, and the manner of government, and the
several conditions on which any persons were to be made or continue
partakers of their bounty."[19]

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 in trustees, or governors, they are visitors; and there is
no control in any body 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. "If there be a charter with proper powers, the
charity must be regulated in the manner prescribed by the charter. There
is no ground for the controlling interposition of the courts of
chancery. The interposition of the courts, therefore, in those instances
in which the charities were founded on charters or by act of Parliament,
and a visitor or governor and trustees appointed, must be referred to
the general jurisdiction of the courts in all cases in which a trust
conferred appears to have been abused, and not to an original right to
direct the management of the charity, or the conduct of the governors or
trustees."[20] "The original of all _visitatorial_ power is the property
of the donor, and the power every one has to dispose, direct, and
regulate his own property; like the case of patronage; _cujus est dare_,
&c. Therefore, if either the crown or the subject creates an
eleemosynary foundation, and vests the charity in the persons who are to
receive the benefit of it, since a contest might arise about the
government of it, the law allows the founder or his heirs, or the person
specially appointed by him to be visitor, to determine concerning his
own creature. If the charity is not vested in the persons who are to
partake, but in trustees for their benefit, no visitor can arise by
implication, but the trustees have that power."[21]

"There is nothing better established," says Lord Commissioner Eyre,
"than that this court does not entertain a general jurisdiction, or
regulate and control charities _established by charter_. There the
establishment is fixed and determined; and the court has no power to
vary it. If the governors established for the regulation of it are not
those who have the management of the revenue, this court has no
jurisdiction, and if it is ever so much abused, as far as it respects
the jurisdiction of this court it is without remedy; but if those
established as governors have also the management of the revenues, this
court does assume a jurisdiction of necessity, so far as they are to be
considered as trustees of the revenue."[22]

"The foundations of colleges," says Lord Mansfield, "are to be
considered in two views; namely, 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."[23] And
even if the king be founder, if he grant a charter, incorporating
trustees and governors, _they are visitors_, and the king cannot
visit.[24] A subsequent donation, or ingrafted fellowship, falls under
the same general visitatorial power, if not otherwise specially

In New England, and perhaps throughout the United States, eleemosynary
corporations have been generally established in the latter 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 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
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. Catherine's Hall,[26]
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.[27] 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 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 recognized and established in all the other
cases, be correct, 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 wrong-doers. 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 perpetual succession and do other
corporate acts; and each individual member of such a corporation is also
said to have a franchise or freedom."[28]

_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 privileges of corporations_."[29]

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, 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.[30]

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 ownership, in any thing 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.[31]
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 presenti_, or _in futuro_." It would not enrich the
plaintiff _in presenti_, 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 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, it is not law, but violence, to rescind this contract, and seize on
the property. 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 establishing 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 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."[32]

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 a 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 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

In _University v. Foy_,[33] 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_,[34] 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 difference. A grant to a parish or
church, for the purposes which have been mentioned, cannot be
distinguished, in respect to the title it confers, from a grant to a
college for the promotion of piety and learning. To the same purpose may
be cited the case of _Pawlett v. Clark_. The State of Vermont, by
statute, in 1794, granted to the respective towns in that State certain
glebe lands lying within those towns for the sole use and support of
religious worship. In 1799, an act was passed to repeal the act of 1794;
but this court declared, that the act of 1794, "so far as it granted the
glebes to the towns, could not afterwards be repealed by the
legislature, so as to divest the rights of the towns under the

It will be for the other side to show that the nature of the use decides
the question whether the legislature has power to resume its grants. It
will be for those who maintain such a doctrine to show the principles
and cases upon which it rests. It will be for them also to fix the
limits and boundaries of their doctrine, and to show what are and what
are not such uses as to give the legislature this power of resumption
and revocation. And to furnish an answer to the cases cited, it will be
for them further to show that a grant for the use and support of
religious worship stands on other ground than a grant for the promotion
of piety and learning.

I hope enough has been said to show that the trustees possessed vested
liberties, privileges, and immunities, under this charter; and that such
liberties, privileges, and immunities, being once lawfully obtained and
vested, are as inviolable as any vested rights of property whatever.
Rights to do certain acts, such, for instance, as the visitation and
superintendence of a college and the appointment of its officers, may
surely be vested rights, to all legal intents, as completely as the
right to possess property. A late learned judge of this court has said,
"When I say that a _right_ is vested in a citizen, I mean that he has
the power to do _certain actions_, or to possess _certain things_,
according to the law of the land."[36]

If such be the true nature of the plaintiffs' interests under this
charter, what are the articles in the New Hampshire Bill of Rights which
these acts infringe?

They infringe the second article; which says, that the citizens of the
State have a right to hold and possess property. The plaintiffs had a
legal property in this charter; and they had acquired property under it.
The acts deprive them of both. They impair and take away the charter;
and they appropriate the property to new uses, against their consent.
The plaintiffs cannot now hold the property acquired by themselves, and
which this article says they have a right to hold.

They infringe the twentieth article. By that article it is declared
that, in questions of property, there is a right to trial. The
plaintiffs are divested, without trial or judgment.

They infringe the twenty-third article. It is therein declared that no
retrospective laws shall be passed. This article bears directly on the
case. These acts must be deemed to be retrospective, within the settled
construction of that term. What a retrospective law is, has been
decided, on the construction of this very article, in the Circuit Court
for the First Circuit. The learned judge of that circuit says: "Every
statute which takes away or impairs vested rights, acquired under
existing laws, must be deemed retrospective."[37] That all such laws are
retrospective was decided also in the case of _Dash v. Van Kleek_,[38]
where a most learned judge quotes this article from the constitution of
New Hampshire, with manifest approbation, as a plain and clear
expression of those fundamental and unalterable principles of justice,
which must lie at the foundation of every free and just system of laws.
Can any man deny that the plaintiffs had rights, under the charter,
which were legally vested, and that by these acts those rights are

"It is a principle in the English law," says Chief Justice Kent, in the
case last cited, "as ancient as the law itself, that a statute, even of
its omnipotent Parliament, is not to have a retrospective effect. 'Nova
constitutio futuris formam imponere debet, et non praeteritis.'[39] The
maxim in Bracton was taken from the civil law, for we find in that
system the same principle, expressed substantially in the same words,
that the lawgiver cannot alter his mind to the prejudice of a vested
right. 'Nemo potest mutare concilium suum in alterius injuriam.'[40]
This maxim of Papinian is general in its terms, but Dr. Taylor[41]
applies it directly as a restriction upon the lawgiver, and a
declaration in the Code leaves no doubt as to the sense of the civil
law. 'Leges et constitutiones futuris certum est dare formam negotiis,
non ad facta praeterita revocari, nisi nominatim, et de praeterito
tempore, et adhuc pendentibus negotiis cautum sit.'[42] This passage,
according to the best interpretation of the civilians, relates not
merely to future suits, but to future, as contradistinguished from past,
contracts and vested rights.[43] It is indeed admitted that the prince
may enact a retrospective law, provided it be done _expressly_; for the
will of the prince under the despotism of the Roman emperors was
paramount to every obligation. Great latitude was anciently allowed to
legislative expositions of statutes; for the separation of the judicial
from the legislative power was not then distinctly known or prescribed.
The prince was in the habit of interpreting his own laws for particular
occasions. This was called the 'Interlocutio Principis'; and this,
according to Huber's definition, was, 'quando principes inter partes
loquuntur et jus dicunt.'[44] No correct civilian, and especially no
proud admirer of the ancient republic (if any such then existed), could
have reflected on this interference with private rights and pending
suits without disgust and indignation; and we are rather surprised to
find that, under the violent and arbitrary genius of the Roman
government, the principle before us should have been acknowledged and
obeyed to the extent in which we find it. The fact shows that it must be
founded in the clearest justice. Our case is happily very different from
that of the subjects of Justinian. With us the power of the lawgiver is
limited and defined; the judicial is regarded as a distinct, independent
power; private rights are better understood and more exalted in public
estimation, as well as secured by provisions dictated by the spirit of
freedom, and unknown to the civil law. Our constitutions do not admit
the power assumed by the Roman prince, and the principle we are
considering is now to be regarded as sacred."

These acts infringe also the thirty-seventh article of the constitution
of New Hampshire; which says, that the powers of government shall be
kept separate. By these acts, the legislature assumes to exercise a
judicial power. It declares a forfeiture, and resumes franchises, once
granted, without trial or hearing.

If the constitution be not altogether waste-paper, it has restrained the
power of the legislature in these particulars. If it has any meaning, it
is that the legislature shall pass no act directly and manifestly
impairing private property and private privileges. It shall not judge by
act. It shall not decide by act. It shall not deprive by act. But it
shall leave all these things to be tried and adjudged by the law of the

The fifteenth article has been referred to before. It declares that no
one shall be "deprived of his property, immunities, or privileges, but
by the judgment of his peers or the law of the land." Notwithstanding
the light in which the learned judges in New Hampshire viewed the rights
of the plaintiffs under the charter, and which has been before adverted
to, it is found to be admitted in their opinion, that those rights are
privileges within the meaning of this fifteenth article of the Bill of
Rights. Having quoted that article, they say: "That the right to manage
the affairs of this college is a privilege, within the meaning of this
clause of the Bill of Rights, is not to be doubted." In my humble
opinion, this surrenders the point. To resist the effect of this
admission, however, the learned judges add: "But how a privilege can be
protected from the operation of the law of the land by a clause in the
constitution, declaring that it shall not be taken away but by the law
of the land, is not very easily understood." This answer goes on the
ground, that the acts in question are laws of the land, within the
meaning of the constitution. If they be so, the argument drawn from this
article is fully answered. If they be not so, it being admitted that the
plaintiffs' rights are "privileges," within the meaning of the article,
the argument is not answered, and the article is infringed by the acts.

Are, then, these acts of the legislature, which affect only particular
persons and their particular privileges, laws of the land? Let this
question be answered by the text of Blackstone. "And first it (i.e. law)
is a _rule_: not a transient, sudden order from a superior to or
concerning a particular person; but something permanent, uniform, and
universal. Therefore a particular act of the legislature to confiscate
the goods of Titius, or to attaint him of high treason, does not enter
into the idea of a municipal law; for the operation of this act is spent
upon Titius only, and has no relation to the community in general; it is
rather a sentence than a law."[45] Lord Coke is equally decisive and
emphatic. Citing and commenting on the celebrated twenty-ninth chapter
of Magna Charta, he says: "No man shall be disseized, &c., unless it be
by the lawful judgment, that is, verdict of equals, or by the law of
the land, that is (to speak it once for all), by the due course and
process of law."[46] Have the plaintiffs lost their franchises by "due
course and process of law"? On the contrary, are not these acts
"particular acts of the legislature, which have no relation to the
community in general, and which are rather sentences than laws"?

By the law of the land is most clearly intended the general law; a law
which hears before it condemns; which proceeds upon inquiry, and renders
judgment only after trial. The meaning is, that every citizen shall hold
his life, liberty, property, and immunities under the protection of the
general rules which govern society. Every thing which may pass under the
form of an enactment is not therefore to be considered the law of the
land. If this were so, acts of attainder, bills of pains and penalties,
acts of confiscation, acts reversing judgments, and acts directly
transferring one man's estate to another, legislative judgments,
decrees, and forfeitures in all possible forms, would be the law of the

Such a strange construction would render constitutional provisions of
the highest importance completely inoperative and void. It would tend
directly to establish the union of all powers in the legislature. There
would be no general, permanent law for courts to administer or men to
live under. The administration of justice would be an empty form, an
idle ceremony. Judges would sit to execute legislative judgments and
decrees; not to declare the law or to administer the justice of the
country. "Is that the law of the land," said Mr. Burke, "upon which, if
a man go to Westminster Hall, and ask counsel by what title or tenure he
holds his privilege or estate _according to the law of the land_, he
should be told, that the law of the land is not yet known; that no
decision or decree has been made in his case; that when a decree shall
be passed, he will then know _what the law of the land is_? Will this be
said to be the law of the land, by any lawyer who has a rag of a gown
left upon his back, or a wig with one tie upon his head?"

That the power of electing and appointing the officers of this college
is not only a right of the trustees as a corporation, generally, and in
the aggregate, but that each individual trustee has also his own
individual franchise in such right of election and appointment, is
according to the language of all the authorities. Lord Holt says: "It is
agreeable to reason and the rules of law, that a franchise should be
vested in the corporation aggregate, and yet the benefit of it to
redound to the particular members, and to be enjoyed by them in their
private capacity. Where the privilege of election is used by particular
persons, _it is a particular right, vested in every particular

It is also to be considered, that the president and professors of this
college have rights to be affected by these acts. Their interest is
similar to that of fellows in the English colleges; because they derive
their living, wholly or in part, from the founders' bounty. The
president is one of the trustees or corporators. The professors are not
necessarily members of the corporation; but they are appointed by the
trustees, are removable only by them, and have fixed salaries payable
out of the general funds of the college. Both president and professors
have freeholds in their offices; subject only to be removed by the
trustees, as their legal visitors, for good cause. All the authorities
speak of fellowships in colleges as freeholds, notwithstanding the
fellows may be liable to be suspended or removed, for misbehavior, by
their constituted visitors.

Nothing could have been less expected, in this age, than that there
should have been an attempt, by acts of the legislature, to take away
these college livings, the inadequate but the only support of literary
men who have devoted their lives to the instruction of youth. The
president and professors were appointed by the twelve trustees. They
were accountable to nobody else, and could be removed by nobody else.
They accepted their offices on this tenure. Yet the legislature has
appointed other persons, with power to remove these officers and to
deprive them of their livings; and those other persons have exercised
that power. No description of private property has been regarded as more
sacred than college livings. They are the estates and freeholds of a
most deserving class of men; of scholars who have consented to forego
the advantages of professional and public employments, and to devote
themselves to science and literature and the instruction of youth in the
quiet retreats of academic life. Whether to dispossess and oust them; to
deprive them of their office, and to turn them out of their livings; to
do this, not by the power of their legal visitors or governors, but by
acts of the legislature, and to do it without forfeiture and without
fault; whether all this be not in the highest degree an indefensible and
arbitrary proceeding, is a question of which there would seem to be but
one side fit for a lawyer or a scholar to espouse.

Of all the attempts of James the Second to overturn the law, and the
rights of his subjects, none was esteemed more arbitrary or tyrannical
than his attack on Magdalen College, Oxford; and yet that attempt was
nothing but to put out one president and put in another. The president
of that college, according to the charter and statutes, is to be chosen
by the fellows, who are the corporators. There being a vacancy, the king
chose to take the appointment out of the hands of the fellows, the legal
electors of a president, into his own hands. He therefore sent down his
mandate, commanding the fellows to admit for president a person of his
nomination; and, inasmuch as this was directly against the charter and
constitution of the college, he was pleased to add a _non obstante_
clause of sufficiently comprehensive import. The fellows were commanded
to admit the person mentioned in the mandate, "any statute, custom, or
constitution to the contrary notwithstanding, wherewith we are
graciously pleased to dispense, in this behalf." The fellows refused
obedience to this mandate, and Dr. Hough, a man of independence and
character, was chosen president by the fellows, according to the charter
and statutes. The king then assumed the power, in virtue of his
prerogative, to send down certain commissioners to turn him out; which
was done accordingly; and Parker, a creature suited to the times, put in
his place. Because the president, who was rightfully and legally
elected, _would not deliver the keys, the doors were broken open_. "The
nation as well as the university," says Bishop Burnet,[48] "looked on
all these proceedings with just indignation. It was thought an open
piece of robbery and burglary when men, authorized by no legal
commission, came and forcibly turned men out of their possession and
freehold." Mr. Hume, although a man of different temper, and of other
sentiments, in some respects, than Dr. Burnet, speaks of this arbitrary
attempt of prerogative in terms not less decisive. "The president, and
all the fellows," says he, "except two, who complied, were expelled the
college, and Parker was put in possession of the office. This act of
violence, of all those which were committed during the reign of James,
is perhaps the most illegal and arbitrary. When the dispensing power was
the most strenuously insisted on by court lawyers, it had still been
allowed that the statutes which regard private property could not
legally be infringed by that prerogative. Yet, in this instance, it
appeared that even these were not now secure from invasion. The
privileges of a college are attacked; men are illegally dispossessed of
their property for adhering to their duty, to their oaths, and to their

This measure King James lived to repent, after repentance was too late.
When the charter of London was restored, and other measures of violence
were retracted, to avert the impending revolution, the expelled
president and fellows of Magdalen College were permitted to resume their
rights. It is evident that this was regarded as an arbitrary
interference with private property. Yet private property was no
otherwise attacked than as a person was appointed to administer and
enjoy the revenues of a college in a manner and by persons not
authorized by the constitution of the college. A majority of the members
of the corporation would not comply with the king's wishes. A minority
would. The object was therefore to make this minority a majority. To
this end the king's commissioners were directed to interfere in the
case, and they united with the two complying fellows, and expelled the
rest; and thus effected a change in the government of the college. The
language in which Mr. Hume and all other writers speak of this abortive
attempt of oppression, shows that colleges were esteemed to be, as they
truly are, private corporations, and the property and privileges which
belong to them _private_ property and _private_ privileges. Court
lawyers were found to justify the king in dispensing with the laws; that
is, in assuming and exercising a legislative authority. But no lawyer,
not even a court lawyer, in the reign of King James the Second, as far
as appears, was found to say that, even by this high authority, he could
infringe the franchises of the fellows of a college, and take away their
livings. Mr. Hume gives the reason; it is, that such franchises were
regarded, in a most emphatic sense, as _private property_.[49]

If it could be made to appear that the trustees and the president and
professors held their offices and franchises during the pleasure of the
legislature, and that the property holden belonged to the State, then
indeed the legislature have done no more than they had a right to do.
But this is not so. The charter is a charter of privileges and
immunities; and these are holden by the trustees expressly against the
State for ever.

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

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

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

The plaintiffs contend, in the second place, that the acts in question
are repugnant to the tenth section of the first article of the
Constitution of the United States. The material words of that section
are: "No State shall pass any bill of attainder, _ex post facto_ law, or
law impairing the obligation of contacts."

The object of these most important provisions in the national
constitution has often been discussed, both here and elsewhere. It is
exhibited with great clearness and force by one of the distinguished
persons who framed that instrument. "Bills of attainder, _ex post facto_
laws, and laws impairing the obligation of contracts, are contrary to
the first principles of the social compact, and to every principle of
sound legislation. The two former are expressly prohibited by the
declarations prefixed to some of the State constitutions, and all of
them are prohibited by the spirit and scope of these fundamental
charters. Our own experience has taught us, nevertheless, that
additional fences against these dangers ought not to be omitted. Very
properly, therefore, have the convention added this constitutional
bulwark, in favor of personal security and private rights; and I am much
deceived, if they have not, in so doing, as faithfully consulted the
genuine sentiments as the undoubted interests of their constituents. The
sober people of America are weary of the fluctuating policy which has
directed the public councils. They have seen with regret, and with
indignation, that sudden changes, and legislative interferences in cases
affecting personal rights, become jobs in the hands of enterprising and
influential speculators, and snares to the more industrious and less
informed part of the community. They have seen, too, that one
legislative interference is but the link of a long chain of repetitions;
every subsequent interference being naturally produced by the effects of
the preceding."[50]

It has already been decided in this court, that a _grant_ is a contract,
within the meaning of this provision; and that a grant by a State is
also a contract, as much as the grant of an individual. In the case of
_Fletcher v. Peck_[51] this court says: "A contract is a compact between
two or more parties, and is either executory or executed. An executory
contract is one in which a party binds himself to do, or not to do, a
particular thing; such was the law under which the conveyance was made
by the government. A contract executed is one in which the object of
contract is performed; and this, says Blackstone, differs in nothing
from a grant. The contract between Georgia and the purchasers was
executed by the grant. A contract executed, as well as one which is
executory, contains obligations binding on the parties. A grant, in its
own nature, amounts to an extinguishment of the right of the grantor,
and implies a contract not to reassert that right. If, under a fair
construction of the Constitution, grants are comprehended under the term
contracts, is a grant from the State excluded from the operation of the
provision? Is the clause to be considered as inhibiting the State from
impairing the obligation of contracts between two individuals, but as
excluding from that inhibition contracts made with itself? The words
themselves contain no such distinction. They are general, and are
applicable to contracts of every description. If contracts made with the
State are to be exempted from their operation, the exception must arise
from the character of the contracting party, not from the words which
are employed. Whatever respect might have been felt for the State
sovereignties, it is not to be disguised that the framers of the
Constitution viewed with some apprehension the violent acts which might
grow out of the feelings of the moment; and that the people of the
United States, in adopting that instrument, have manifested a
determination to shield themselves and their property from the effects
of those sudden and strong passions to which men are exposed. The
restrictions on the legislative power of the States are obviously
founded in this sentiment; and the Constitution of the United States
contains what may be deemed a bill of rights for the people of each

It has also been decided, that a grant by a State before the Revolution
is as much to be protected as a grant since.[52] But the case of
_Terrett v. Taylor_, before cited, is of all others most pertinent to
the present argument. Indeed, the judgment of the court in that case
seems to leave little to be argued or decided in this. "A private
corporation," say the court, "created by the legislature, may lose its
franchises by a _misuser_ or a _nonuser_ of them; and they may be
resumed by the government under a judicial judgment upon a _quo
warranto_ to ascertain and enforce the forfeiture. This is the common
law of the land, and is a tacit condition annexed to the creation of
every such corporation. Upon a change of government, too, it may be
admitted, that such exclusive privileges attached to a private
corporation as are inconsistent with the new government may be
abolished. In respect, also, to _public_ corporations which exist only
for public purposes, such as counties, towns, cities, and so forth, the
legislature may, under proper limitations, have a right to change,
modify, enlarge, or restrain them, securing, however, the property for
the uses of those for whom and at whose expense it was originally
purchased. But that the legislature can repeal statutes creating private
corporations, or confirming to them property already acquired under the
faith of previous laws, and by such repeal can vest the property of such
corporations exclusively in the State, or dispose of the same to such
purposes as they please, without the consent or default of the
corporators, we are not prepared to admit; and we think ourselves
standing upon the principles of natural justice, upon the fundamental
laws of every free government, upon the spirit and letter of the
Constitution of the United States, and upon the decisions of most
respectable judicial tribunals, in resisting such a doctrine."

This court, then, does not admit the doctrine, that a legislature can
repeal statutes creating private corporations. If it cannot repeal them
altogether, of course it cannot repeal any part of them, or impair them,
or essentially alter them, without the consent of the corporators. If,
therefore, it has been shown that this college is to be regarded as a
private charity, this case is embraced within the very terms of that
decision. A grant of corporate powers and privileges is as much a
contract as a grant of land. What proves all charters of this sort to be
contracts is, that they must be accepted to give them force and effect.
If they are not accepted, they are void. And in the case of an existing
corporation, if a new charter is given it, it may even accept part and
reject the rest. In _Rex v. Vice-Chancellor of Cambridge_,[53] Lord
Mansfield says: "There is a vast deal of difference between a new
charter granted to a new corporation, (who must take it as it is given,)
and a new charter given to a corporation already in being, and acting
either under a former charter or under prescriptive usage. The latter, a
corporation already existing, are not obliged to accept the new charter
_in toto_, and to receive either all or none of it; they may act partly
under it, and partly under their old charter or prescription. The
validity of these new charters must turn upon the acceptance of them."
In the same case Mr. Justice Wilmot says: "It is the concurrence and
acceptance of the university that gives the force to the charter of the
crown." In the _King v. Pasmore_,[54] Lord Kenyon observes: "Some things
are clear: when a corporation exists capable of discharging its
functions, the crown cannot obtrude another charter upon them; they may
either accept or reject it."[55]

In all cases relative to charters, the acceptance of them is uniformly
alleged in the pleadings. This shows the general understanding of the
law, that they are grants or contracts; and that parties are necessary
to give them force and validity. In _King v. Dr. Askew_,[56] it is said:
"The crown cannot oblige a man to be a corporator, without his consent;
he shall not be subject to the inconveniences of it, without accepting
it and assenting to it." These terms, "acceptance" and "assent," are the
very language of contract. In _Ellis v. Marshall_,[57] it was expressly
adjudged that the naming of the defendant among others, in an act of
incorporation, did not of itself make him a corporator; and that his
assent was necessary to that end. The court speak of the act of
incorporation as a grant, and observe: "That a man may refuse a grant,
whether from the government or an individual, seems to be a principle
too clear to require the support of authorities." But Justice Buller, in
_King v. Pasmore_, furnishes, if possible, a still more direct and
explicit authority. Speaking of a corporation for government, he says:
"I do not know how to reason on this point better than in the manner
urged by one of the relator's counsel; who considered the grant of
incorporation to be a compact between the crown and a certain number of
the subjects, the latter of whom undertake, in consideration of the
privileges which are bestowed, to exert themselves for the good
government of the place." This language applies with peculiar propriety
and force to the case before the court. It was in consequence of the
"privileges bestowed," that Dr. Wheelock and his associates undertook to
exert themselves for the instruction and education of youth in this
college; and it was on the same consideration that the founder endowed
it with his property.

And because charters of incorporation are of the nature of contracts,
they cannot be altered or varied but by consent of the original parties.
If a charter be granted by the king, it may be altered by a new charter
granted by the king, and accepted by the corporators. But if the first
charter be granted by Parliament, the consent of Parliament must be
obtained to any alteration. In _King v. Miller_,[58] Lord Kenyon says:
"Where a corporation takes its rise from the king's charter, the king by
granting, and the corporation by accepting another charter, may alter
it, because it is done with the consent of all the parties who are
competent to consent to the alteration."[59]

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

It is therefore contended, that this case falls within the true meaning
of this provision of the Constitution, as expounded in the decisions of
this court; that the charter of 1769 is a contract, a stipulation or
agreement, mutual in its considerations, express and formal in its
terms, and of a most binding and solemn nature. That the acts in
question impair this contract, has already been sufficiently shown. They
repeal and abrogate its most essential parts.

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

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

Much has heretofore been said on the necessity of admitting such a power
in the legislature as has been assumed in this case. Many cases of
possible evil have been imagined, which might otherwise be without
remedy. Abuses, it is contended, might arise in the management of such
institutions, which the ordinary courts of law would be unable to
correct. But this is only another instance of that habit of supposing
extreme cases, and then of reasoning from them, which is the constant
refuge of those who are obliged to defend a cause, which, upon its
merits, is indefensible. It would be sufficient to say in answer, that
it is not pretended that there was here any such case of necessity. But
a still more satisfactory answer is, that the apprehension of danger is
groundless, and therefore the whole argument fails. Experience has not
taught us that there is danger of great evils or of great inconvenience
from this source. Hitherto, neither in our own country nor elsewhere
have such cases of necessity occurred. The judicial establishments of
the State are presumed to be competent to prevent abuses and violations
of trust, in cases of this kind, as well as in all others. If they be
not, they are imperfect, and their amendment would be a most proper
subject for legislative wisdom. Under the government and protection of
the general laws of the land, these institutions have always been found
safe, as well as useful. They go on, with the progress of society,
accommodating themselves easily, without sudden change or violence, to
the alterations which take place in its condition, and in the knowledge,
the habits, and pursuits of men. The English colleges were founded in
Catholic ages. Their religion was reformed with the general reformation
of the nation; and they are suited perfectly well to the purpose of
educating the Protestant youth of modern times. Dartmouth College was
established under a charter granted by the Provincial government; but a
better constitution for a college, or one more adapted to the condition
of things under the present government, in all material respects, could
not now be framed. Nothing in it was found to need alteration at the
Revolution. The wise men of that day saw in it one of the best hopes of
future times, and commended it as it was, with parental care, to the
protection and guardianship of the government of the State. A charter of
more liberal sentiments, of wiser provisions, drawn with more care, or
in a better spirit, could not be expected at any time or from any
source. The college needed no change in its organization or government.
That which it did need was the kindness, the patronage, the bounty of
the legislature; not a mock elevation to the character of a university,
without the solid benefit of a shilling's donation to sustain the
character; not the swelling and empty authority of establishing
institutes and other colleges. This unsubstantial pageantry would seem
to have been in derision of the scanty endowment and limited means of an
unobtrusive, but useful and growing seminary. Least of all was there a
necessity, or pretence of necessity, to infringe its legal rights,
violate its franchises and privileges, and pour upon it these
overwhelming streams of litigation.

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

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

When the court in North Carolina declared the law of the State, which
repealed a grant to its university, unconstitutional and void, the
legislature had the candor and the wisdom to repeal the law. This
example, so honorable to the State which exhibited it, is most fit to be
followed on this occasion. And there is good reason to hope that a
State, which has hitherto been so much distinguished for temperate
counsels, cautious legislation, and regard to law, will not fail to
adopt a course which will accord with her highest and best interests,
and in no small degree elevate her reputation.

It was for many and obvious reasons most anxiously desired that the
question of the power of the legislature over this charter should have
been finally decided in the State court. An earnest hope was
entertained that the judges of the court might have viewed the case in a
light favorable to the rights of the trustees. That hope has failed. It
is here that those rights are now to be maintained, or they are
prostrated for ever. "Omnia alia perfugia bonorum, subsidia, consilia,
auxilia, jura ceciderunt. Quem enim alium appellem? quem obtester? quem
implorem? Nisi hoc loco, nisi apud vos, nisi per vos, judices, salutem
nostram, quae spe exigua extremaque pendet, tenuerimus; nihil est
praeterea quo confugere possimus."

[Footnote 1: Calder et ux. v. Bull, 3 Dallas, 386.]

[Footnote 2: Annual Register, 1784, p. 160; Parl. Reg. 1783; Mr. Burke's
Speech on Mr. Fox's East India Bill, Burke's Works, Vol. II. pp. 414,
417, 467, 468, 486.]

[Footnote 3: 1 Black. 472, 473.]

[Footnote 4: 3 Burr. 1656.]

[Footnote 5: King v. Pasmore, 3 Term Rep. 244.]

[Footnote 6: King v. Vice-Chancellor of Cambridge, 3 Burr. 1656; 3 Term
Rep. 240,--Lord Kenyon.]


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