in which sense the first gift of the revenues is the foundation, and he who gives them is, in the law, the founder; and it is in this last sense we generally call a man the founder of a college or hospital.” 1 Bl. Comm. 480, 10 Co. 33.

To all eleemosynary corporations a visitatorial power attaches as a necessary incident; for these corporations being composed of individuals subject to human infirmities are liable, as well as private persons, to deviate from the end of their institution. The law, therefore, has provided that there shall somewhere exist a power to visit, inquire into, and correct all irregularities and abuses in such corporations, and to compel the original purposes of the charity to be faithfully fulfilled. 1 Bl. Comm. 480. The nature and extent of this visitatorial power has been expounded with admirable fullness and accuracy by Lord Holt in one of his most celebrated judgments. Philips v. Bury, 1 Ld. Raym. 5; s. c. 2 T. R. 346. Ánd of common right by the donation the founder and his heirs are the legal visitors, unless the founder has appointed and assigned another person to be visitor. For the founder may, if he please, at the time of the endowment, part with his visitatorial power; and the person to whom it is assigned will, in that case, possess it in exclusion of the founder's heirs. I Bl. Com. 482. This visitatorial power is, therefore, an hereditament founded in property, and valuable in intendment of law, and stands upon the maxim that he who gives his property has a right to regulate it in future. It includes also the legal right of patronage, for, as Lord Holt justly observes, "patronage and visitation are necessary consequents one upon another.” No technical terms are necessary to assign or vest the visitatorial power; it is sufficient if, from the nature of the duties to be performed by particular persons under the charter, it can be inferred that the founder meant to part with it in their favor, and he may divide it among various persons, or subject it to any modifications or control by the fundamental statutes of the corporation. where the appointment is given in general terms, the whole power vests in the appointee. Eden v. Foster, 2 P. Wms. 325; AttorneyGeneral v. Middleton, 2 Ves. 327; St. Johns College v. Todington, I W. Bl. 84; s. c. 2 Burr. 200; Attorney-General v. Clare College, 3 Atk. 662; s. c. 1 Ves. 78. In the construction of charters, too, it is a general rule that if the objects of the charity are incorporated, as, for instance, the master and fellows of a college, or the master and poor of a hospital, the visitatorial power, in the absence of any special appointment, silently vests in the founder and his heirs. But where trustees or governors are incorporated to manage the charity, the visitatorial power is deemed to belong to them in their corporate character. Philips v. Bury, 1 Ld. Raym. 5; s. c. 2 T. R. 346; Green v. Rutherford, Ves. 472; Attorney-General v. Middleton, 2 Ves. 327; Case of Sutton Hospital, 10 Co. 23. 31.

But

When a private eleemosynary corporation is thus created by the charter of the crown, it is subject to no other control on the part of the crown than what is expressly or implicitly reserved by the charter itself. Unless a power be reserved for this purpose, the crown' can

not, in virtue of its prerogative, without the consent of the corporation, alter or amend the charter, or divest the corporation of any of its franchises, or add to them, or add to or diminish the number of the trustees, or remove any of the members, or change or control the administration of the charity, or compel the corporation to receive a new charter. This is the uniform language of the authorities, and forms one of the most stubborn and well-settled doctrines of the common law.

But an eleemosynary, like every other corporation, is subject to the general law of the land. It may forfeit its corporate franchises by misuser or non-user of them. It is subject to the controlling authority of its legal visitor, who, unless restrained by the terms of the charter, may amend and repeal its statutes, remove its officers, correct abuses and generally superintend the management of the trusts. Where, indeed, the visitatorial power is vested in the trustees of the charity, in virtue of their incorporation, there can be no amotion of them from their corporate capacity. But they are not, therefore, placed beyond the reach of the law. As managers of the revenues of the corporation they are subject to the general superintending power of the court of chancery, not as itself possessing a visitatorial power, or a right to control the charity, but as possessing a general jurisdiction in all cases of an abuse of trust to redress grievances and suppress frauds. 2 Fonbl. Eq., B. 2, pt. 2, ch. 1, § 1, note a; Coop. Eq. Pl. 292; 2 Kyd on Corp. 195; Green v. Rutherford, 1 Ves. 462; Attorney-General v. Foundling Hospital, 4 Bro. C. C. 165; s. c. 2 Ves. Jr. 42; Eden v. Foster, 2 P. Wms. 325; 1 Wooddes. 476; Attorney-General v. Price, 3 Atk. 108; Attorney-General v. Lock, 3 Atk. 164; Attorney-General v. Dixie, 13 Ves. 519; Ex parte Kirby Ravensworth Hospital, 15 Ves. 304, 314; Attorney-General v. Earl of Clarendon, 17 Ves. 491, 499; Berkhamstead Free School, 2 Ves. & B. 134; Attorney-General v. Corporation of Carmarthen, Cooper 30; Mayor, etc., of Colchester v. Lowten, 1 Ves. & B. 226; Rex v. Watson, 2 T. R. 199; Attorney-General v. Utica Ins. Co., 2 Johns. Ch. 371; Attorney-General v. Middleton, 2 Ves. 327. And where a corporation is a mere trustee of a charity, a court of equity will go yet further, and though it can not appoint or remove a corporator, it will yet, in a case of gross fraud or abuse of trust, take away the trust from the corporation and vest it in other hands. Mayor, etc., of Coventry v. Attorney-General, 7 Bro. P. C. 235; Attorney-General v. Earl of Clarendon, 17 Ves. 491, 499.

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

(Stating facts as to recitals of charter and its terms as above.) [Terms of the charter.] Such are the most material clauses of the charter. It is observable, in the first place, that no endowment whatever is given by the crown, and no power is reserved to the crown or government in any manner to alter, amend or control the charter.

It

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

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

"A con

[Is this charter a contract?] We are now led to the consideration of the first question in the cause, whether this charter is a contract within the clause of the constitution prohibiting the states from passing any law impairing the obligation of contracts. In the case of Fletcher v. Peck, 6 Cranch 87, 136, this court laid down its exposition of the word "contract" in this clause in the following manner: tract is a compact between two or more persons, and is either executory or executed. An executory contract is one in which a party binds himself to do, or not to do, a particular thing. A contract executed is one in which the object of the contract is performed; and this, says Blackstone, differs in nothing from a grant. A contract executed, as well as one that is executory, contains obligations binding on the parties. A grant, in its own nature, amounts to an extinguishment of the right of the grantor, and implies a contract not to reassert that right. A party is always estopped by his own grant." This language is perfectly unambiguous, and was used in reference to a grant of land by the governor of a state, under a legislative act. It determines, in the most unequivocal manner, that the grant of a state is a contract, within the clause of the constitution now in ques

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

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

With these principles in view, let us now examine the terms of this charter. It purports, indeed, on its face, to be granted "of the special grace, certain knowledge and mere motion" of the king, but these words were introduced for a very different purpose from that now

contended for. It is a general rule of the common law (the reverse of that applied in ordinary cases) that a grant of the king, at the suit of the grantee, is to be construed most beneficially for the king and most strictly against the grantee. Wherefore, it is usual to insert in the king's grants a clause that they are made, not at the suit of the grantee, but of the special grace, certain knowledge and mere motion of the king, and then they receive a more liberal construction. This

is the true object of the clause in question, as we are informed by the most accurate authorities. 2 Bl. Comm. 347; Finch's Law 100; 10 Rep. 112; 1 Shep. Abr. 136; Bull. N. P. 136. But the charter also. on its face, purports to be granted in consideration of the premises in the introductory recitals.

(Stating recitals as to founding by Dr. Wheelock, at his own expense, contributions made by others, etc., and the location of the college.)

[Implied contracts with the founder, trustees and benefactors.] Can it be truly said that these recitals contain no legal consideration of benefit to the crown, or of forbearance of benefit on the other side? Is there not an implied contract by Dr. Wheelock, if a charter is granted, that the schools shall be removed from his estate to New Hampshire, and that he will relinquish all his control over the funds collected, and to be collected in England under his auspices and subject to his authority? That he will yield up the management of his charity school to the trustees of the college? That he will relinquish all the offers made by other American governments, and devote his patronage to this institution? It will scarcely be denied that he gave up the right any longer to maintain the charity school already established on his own estate; and that the funds collected for its use and subject to his management were yielded up by him as an endowment of the college. The very language of the charter supposes him to be the legal owner of the funds of the charity school, and in virtue of this endowment, declares him the founder of the college. It matters not whether the funds were great or small; Dr. Wheelock had procured them by his own influence, and they were under his control to be applied to the support of his charity school; and when he relinquished his control he relinquished a right founded in property acquired by his labors. Besides, Dr. Wheelock impliedly agreed to devote his future services to the college, when erected, by becoming president thereof, at a period when sacrifices must necessarily be made to accomplish the great design in view. If, indeed, a peppercorn be, in the eye of the law, of sufficient value to found a contract, as upon a valuable consideration, are these implied agreements, and these relinquishments of right and benefit, to be deemed wholly worthless? It has never been doubted that an agreement not to exercise a trade in a particular place was a sufficient consideration to sustain a contract for the payment of money; a fortiori, the relinquishment of property which a person holds, or controls the use of as a trust, is a sufficient consideration; for it is parting with a legal right. Even a right of patronage (jus patronatus) is of great value in intendment.