1819. Dartmouth College V. Woodward. special verdict; and not having been such in truth, it cannot be added under the agreement to amend the special verdict. The jury find the charter, and that does not recite that the college was a private foundation by Doctor Wheelock. On the contrary, the real state of the case is, that he was the projector; that he had a school on his own plantation, for the education of Indians; and through the assistance of others had been employed for several years in cloathing, maintaining, and educating them. He solicited contributions, and appointed others to solicit. At the foundation of the college, the institution was removed from his estate. The honours paid to him by the charter were the reward of past services, and of the boldness, as well as piety, of the project. The State has been a contributor of funds, and this fact is found. It is, therefore, not a private charity, but a public institution; subject to be modified, altered, and regulated, by the supreme power of the State. This charter is not a contract within the true intent of the constitution. The acts of New-Hampshire, varying in some degree the forms of the charter, do not impair the obligation of a contract. In a case which is really a case of contract, there is no difficulty in ascertaining who are the contracting parties. But here they cannot be fixed. Doctor Wheelock can only be said to be a party, on the ground of his contributing funds, and thus being the founder and visitor. That ground being removed, he ceases to be a party to the contract. Are the other contributors alluded to in the charter, and enume rated by Belknap in his history of New-Hampshire, are they contracting parties? They are not, before the Court; and even if they were, with whom did they contract? With the King of Great Britain? He, too, is not before the Court; and has declared, by his Chancellor, in the case of the Attorney General v. The City of London," that he has no longer any connexion with these corporations in America. Has the State of New-Hampshire taken his place? Neither is that State before the Court, nor can it be as a party, originally defendant. But suppose this to be a contract between the trustees, and the people of New-Hampshire. A contract is always for the benefit and advantage of some person. This contract cannot be for the benefit of the trustees. It is for the use of the people. The cestui que use is always the contracting party; the trustee has nothing to do with stipulating the terms. The people then grant powers for their own use. It is a contract with themselves! But if the trustees are parties on one side, what do they give, and what do they receive? They give their time and labour. Every society has a right to the services of its members in places of public trust and duty. A town appoints, under the authority of the State, an overseer of the poor, or of the highways. He gives, reluctantly, his labour and services; he receives nothing in return but the privilege of giving his labour and services. Such appointments to offices of public trust have never been considered a The Attorney General v. The City of London, 3 Bro. Ch Cas. 171. 1 Ves. jun. 243. 1819. Dartmouth V. Woodward. 1819. Dartmouth V. as contracts which the sovereign authority was not competent to rescind or modify. There can be no College contract in which the party does not receive some Woodward. personal, private, individual benefit. To make this charter a contract, and a private contract, there must be a private beneficial interest vested in the party who pays the consideration. What is the private beneficial interest vested in the party in the present case? The right of appointing the president and professors of the college, and of establishing ordinances for its government, &c. But to make these rights an interest which will constitute the end and object of a contract, the exercise of these rights must be for the private individual advantage of the trustees. Here, however, so far from that being the fact, it is solely for the advantage of the public; for the interests of piety and learning. It was upon these principles that Lord Kenyon determined, in the case of Weller v. Foundling Hospital," that the governor and members of the corporation were competent witnesses, because they were trustees of a public charity, and had no private personal interest. It is not meant to deny that mere right—a franchise—an incorporeal hereditament, may be the subject of a contract; but it must always be a direct, individual, beneficial interest to the party who takes that right. The rights of municipal corporators are of this nature. The right of suffrage there belongs beneficially to the individual elector, and is to be exercised for his own exclusive advantage. It is in relation to these town a Peake's N, P. Cas. 154. them." 1819. Dartmouth V. corporations that Lord Kenyon speaks, when he says, that the king cannot force a new charter upon This principle is established for the benefit of all the College corporators. It is accompanied by another principle, Woodward. without which it would never have been adopted: the power of proposing amendments at the desire of those for whose benefit the charter was granted. These two principles work together for the good of the whole. By the one, these municipal corporations are saved from the tyranny of the crown; and by the other, they are preserved from the infinite perpetuity of inveterate errors. But in the present case there is no similar qualification of the immutability of the charter, which is contended for in the argument on the other side. But in truth, neither the original principle, nor its qualification, apply to this case; for there is here no such beneficial interest and individual property as are enjoyed by town corporators. 3. But even admitting it to be a case of contract, its obligation is not impaired by these legislative acts. What vested right has been devested? None! The former trustees are continued. It is true, that new trustees are added, but this affords no reasonable ground of complaint. The privileges of the House of Lords in England are not impaired by the introduction of new members. The old corporation is not abolished, for the foundation as now regulated is substantially the same. It is identical in all its essential constituent parts, and all its former rights are a Rex v. Passmore, 3 T. R. 244. 1819. Dartmouth preserved and confirmed." The change of name does not change its original rights and franchises. By College the revolution which separated this country from the Woodward. British empire, all the powers of the British govern V. tees. ment devolved on the States. The legislature of New-Hampshire then became cloathed with all the powers, both of the king and parliament, over these public institutions. On whom, then, did the title to the property of this college fall? If before the revolution it was beneficially vested in any private individuals, or corporate body, I do not contend that the revolution devested it, and gave it to the State. But it was not before vested beneficially in the trus The use unquestionably belonged to the people of New-Hampshire, who were the cestuy que trusts. The legal estate was indeed vested in the trustees before the revolution by virtue of the royal charter of 1769. But that charter was destroyed by the revolution, and the legal estate, of course, fell upon those who held the equitable estate-upon the people. If those who were trustees, carried on the duties of the trust after the revolution, it must have been subject to the power of the people. If it be said, that the State gave its implied assent to the terms of the old charter, then it must be subject to all the terms on which it was granted; and among these, to the oath of allegiance to the king. But if to avoid a See the Mayor of Colchester v. Seaber, 3 Burr. 1866. b 1 Sand. 344. n. 1. Luttrel's Case, 4 Co. Rep. 87. c Attorney General v. City of London, 3 Bro. Ch. Cas. 171. S. C. 1 Ves. jun. 143.' |