1819.

Dartmouth
College

V.

that the judges of that Court might have viewed the case in a light favourable to the rights of the trustees. That hope has failed. It is here that those Woodward. rights are now to be maintained, or they are prostrated forever. Omnia alia perfugia bonorum, subşidia, consilia, auxilia, jura ceciderunt. Quem enim alium appellem? quem obtestor? quem implorem? Nisi hoc loco, nisi apud vos, nisi per vos, judices, salutem nostram, quae spe exigua extremaque pendet, temerimus; nihil est præterea quo confugere possi

IBLIO

mus.

Mr. Holmes, for the defendant in error, argued, that the prohibition in the constitution of the United States, which alone gives the Court jurisdiction in this case, did not extend to grants of political power; to contracts concerning the internal government and police of a sovereign State. Nor does it extend to contracts which relate merely to matters of civil institution, even of a private nature. Thus marriage is a contract, and a private contract; but relating merely to a matter of civil institution, which every society has an inherent right to regulate as its own wisdom may dictate, it cannot be considered as within the spirit of this prohibitory clause. Divorces unquestionably impair the obligation of the nuptial contract; they change the relations of the marriage state, without the consent of both the parties, and thus come clearly within the letter of the prohibition. But surely, no one will contend, that there is locked up in this mystical clause of the constitution a prohibition to the States to grant divorces, a power

1819.

Dartmouth

V.

peculiarly appropriate to domestic legislation, and which has been exercised in every age and nation where civilization has produced that corruption College of manners, which, unfortunately, requires this re- Woodward. medy. Still less can a contract concerning a public office to be exercised, or duty to be performed, be included within this prohibition. The Convention who framed the constitution, did not intend to interfere in the exercise of the political powers reserved to the State governments. That was left to be regulated by their own local laws and constitutions; with this exception only, that the Union should guarantee to each State a republican form of government, and defend it against domestic insurrection and rebellion. Beyond this, the authorities of the Union have no right to interfere in the exercise of the powers reserved to the State. They are sovereign and independent in their own sphere. If, for example, the legislature of a particular State should attempt to deprive the judges of its Courts (who, by the State constitution, held their places during good behaviour) of their offices without a trial by impeachment; or should arbitrarily and capriciously increase the number of the judges so as to give the preponderancy in judicature to the prevailing political faction, would it be pretended that the minority could resist such a law, upon the ground of its impairing the obligation of a contract? Must not the remedy, if any where existing, be found in the interposition of some State authority to enforce the provisions of the State constitution? The education of youth, and the encouragement of the arts and sciences, is one of the most

1819.

important objects of civil government. By our con stitutions, it is left exclusively to the States, with the College exception of copy rights and patents. It was in the Woodward. exercise of this duty of government, that this char

V.

ter was originally granted to Dartmouth College.
Even when first granted under the colonial govern-
ment, it was subject to the notorious authority of the
British parliament over all charters containing grants
of political power. It might have been revoked or
modified by act of parliament." The revolution,
which separated the colony from the parent country,
dissolved all connexion between this corporation and
the crown of Great Britain. But it did not destroy
that
supreme authority which every political society
has over its public institutions. That still remained,
and was transferred to the people of New Hamp-
shire. They have not relinquished it to the govern-
ment of the United States, or to any department of
that government. Neither does the constitution of
New-Hampshire confirm the charter of Dartmouth
College, so as to give it the immutability of the fun-
damental law. On the contrary, the constitution of
the State admonishes the legislature of the duty of
encouraging science and literature, and thus seems
to suppose its power of control over the scientific and
literary institutions of the State. The legislature
had, therefore, a right to modify this trust, the origi-
nal object of which, was the education of the Indian
and English youth of the province. It is not neces-
sary to contend, that it had the right of wholly di-

a Vattel, L. 1. c. 11. s. 112, 113.

b 1 Bl. Com. 485.

1819.

V.

verting the fund from the original object of its pious and benevolent founders. Still it must be insisted, Dartmouth that a regal grant, with a regal and colonial policy, College necessarily became subject to the modification of a Woodward. republican legislature, whose right, and whose duty it was, to adapt the education of the youth of the country to the change in its political institutions. It is a corollary from the right of self-government. The ordinary remedies which are furnished in the Court for a misuser of the corporate franchises, are not adapted to the great exigencies of a revolution in government. They pre-suppose a permanently established order of things, and are intended only to correct occasional deviations, and minor mischiefs. But neither a reformation in religion, nor a revolution in government, can be accomplished or confirmed by a writ of quo warranto or mandamus. We do not say, that the corporation has forfeited its charter for misuser; but that it has become unfit for use by a change of circumstances. Nor does the lapse of time from 1776 to 1816, infer an acquiescence on the part of the legislature, or a renunciation of its right to abolish or reform an institution, which being of a public nature, cannot hold its privileges by prescription. Our argument is, that it is, at all times, liable to be new modelled by the legislative wisdom, instructed by the lights of the age.

The conclusion then is, that this charter is not such a contract as is contemplated by the constitution of the United States; that it is not a contract of a private nature, concerning property or other private interests: but that it is a grant of a public na

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Dartmouth

ture, for public purposes, relative to the internal government and police of a State, and, therefore, liable College to be revoked or modified by the supreme power of Woodworth that State.

V.

Supposing, however, this to be a contract such as was meant to be included in the constitutional prohibition, is its obligation impaired by these acts of the legislature of New-Hampshire?

The title of the acts of the 27th of June, and the 18th of December, 1816, shows that the legislative will and intention was to amend the charter, and enlarge and improve the corporation. If by a technical fiction the grant of the charter can be considered as a contract between the king (or the State) and the corporators, the obligation of that contract is not impaired; but is rather enforced, by these acts, which continue the same corporation, for the same objects, under a new name. It is well settled, that a mere change of the name of a corporation will not affect its identity. An addition to the number of the colleges, the creation of new fellowships, or an increase of the number of the trustees, do not impair the franchises of the corporate body. Nor is the franchise of any individual corporator impaired. In the words of Mr. Justice Ashurst, in the case of the King v. Passmore," "the members of the old body have no injury or injustice to complain of, for they are all included in the new charter of incorporation; and if any of them do not become members of the new incorporation, but refuse to accept, it is their

a 3 T. R. 244.