1819. Dartmouth V. 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 Woodward. 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." 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 cannot, in virtue of its prerogative, without the consent of the corporation, alter or amend the charter, or devest 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 nonuser a Phillips v. Bury, 1 Ld. Ray. 5. S. C. 2 T. R. 346. Green v. Rutherforth, 1 Ves. 472. Attorney General v. Middleton, 2 Ves. 327. Case of Sutton Hospital, 10 Co. 23. 31. b See Rex v. Passmore, 8 T. R. 199. and the cases there cited. 1819. Dartmouth V. of them. It is subject to the controling authority of its legal visitor, who, unless restrained by the terms College of the charter, may amend and repeal its statutes, Woodward. 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 trusts to redress grievances, and suppress frauds." And where a corporation is a mere trustee of a charity, a Court of equity will go yet farther; and though it cannot appoint or remove a corporator, it will yet, in a case of a 2 Fonb. Eq. B. 2. pt. 2. ch. 1. s. 1. note (a.) Coop. Eq. Pl. 292. 2 Kyd Corp. 195. Green v. Rutherforth, 1 Ves. 462. Attorney General v. Foundling Hospital, 4 Bro. Ch. 165. S. C. 2 Ves. jun. 42. Eden v. Foster, 2 P. W. 325. 1 Woodes. 476. Attorney General v. Price, 3 Atk. 108. Attorney General v. Lock, 3 Atk. 164. Attorney General v. Dixie, 13 Ves. 519. Ex parte Kirkby Ravensworth Hospital, 15 Ves. 304. 314. Attorney General v. Earl of Clarendon, 17 Ves. 491. 499. Berkhamstead Free School, 2 Ves. & Beames, 134. Attorney General v. Corporation of Carmarthen, Coop. Rep. 30. Mayor, &c. of Colchester v. Lowten, 1 Ves. & Beames, 226. Rex v. Watson, 2 T. R. 199. Attorney General v. Utica Ins. Co. 2 Johns. Ch. R. 371. Attorney General v. Middleton, 2 Ves. 327, gross fraud, or abuse of trust, take away the trust from the corporation, and vest it in other hands." 1819. Dartmouth V. Thus much it has been thought proper to premise College respecting the nature, rights, and duties of eleemosy- Woodward. nary corporations, growing out of the common law. We may now proceed to an examination of the original charter of Dartmouth College. It begins by a recital, among other things, that the Rev. Eleazer Wheelock, of Lebanon, in Connecticut, about the year 1754, at his own expense, on his own estate, set on foot an Indian charity school; and by the assistance of other persons, educated a number of the children of the Indians, and employed them as missionaries and schoolmasters among the savage tribes; that the design became reputable among the Indians, so that more desired the education of their children at the school, than the contributions in the American colonies would support; that the said Wheelock thought it expedient to endeavour to procure contributions in England, and requested the Rev. Nathaniel Whitaker to go to England as his attorney, to solicit contribution, and also solicited the Earl of Dartmouth, and others, to receive the contributions and become trustees thereof, which they cheerfully agreed to, and he constituted them trustees accordingly by a power of attorney, and they testified their acceptance by a sealed instrument; That the said Wheelock also authorized the trustees to fix and de a Mayor, &c. of Coventry v. Attorney General, 7 Bro. Parl. Cases, 235. Attorney General v. Earl of Clarendon, 17 Ves. 491. 499. 1919. Dartmouth V. termine upon the place for the said school; and, to enable them understandingly to give the preference, College laid before them, the several offers of the governWoodward. ments in America, inviting the settlement of the school among them; that a large number of the proprietors of lands, in the western parts of New-Hampshire, to aid the design; and considering that the same school might be enlarged and improved to promote learning among the English, and to supply the churches there with an orthodox ministry, promised large tracts of land for the uses aforesaid, provided the school should be settled in the western part of said province; that the trustees thereupon gave a preference to the western part of said province, lying on Connecticut river, as a situation most convenient for said school: That the said Wheelock further represented the necessity for a legal incorporation, in order to the safety and well-being of said seminary, and its being capable of the tenure and diposal of lands and bequests for the use of the same; that in the infancy of said institution, certain gentlemen whom he had already nominated in his last will (which he had transmitted to the trustees in England) to be trustees in America, should be the corporation now proposed ; and lastly, that there were already large contributions for said school in the hands of the trustees in England, and further success might be expected; for which reason the said Wheelock desired they might be invested with all that power therein, which could consist with their distance from the same. The charter, after these recitals, declares, that the king, considering the premises, and being willing to 1819. Dartmouth v. Woodward. encourage the charitable design, and that the best means of education might be established in NewHampshire for the benefit thereof, does, of his special College grace, certain knowledge, and mere motion, ordain and grant, that there be a college erected in NewHampshire, by the name of Dartmouth College, for the education and instruction of youth of the Indian tribes, and also of English youth and others; that the trustees of said college shall be a corporation forever, by the name of the trustees of Dartmouth College: that the then governor of New-Hampshire, the said Wheelock, and ten other persons, specially named in the charter, shall be trustees of the said college, and that the whole number of trustees shall forever thereafter consist of twelve, and no more; that the said corporation shall have power to sue and to be sued by their corporate name, and to acquire and hold for the use of the said Dartmouth College, lands, tenements, hereditaments, and franchises; to receive, purchase, and build any houses for the use of said college, in such town in the western part of New Hampshire, as the trustees, or a major part of them, shall by a written instrument agree on; and to receive, accept, and dispose of any lands, goods, chattels, rents, gifts, legaeies, &c. &c. not exceeding the yearly value of 6,000%. It further declares, that the trustees, or a major part of them, regularly convened, (for which purpose seven shall form a quorum,) shall have authority to appoint and remove the professors, tutors, and other officers of the college, and to pay them, and also such missionaries and schoolmasters as shall be employed by the trustees for instructing the Indians, salaries and |