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down certain commissioners to turn him out; which was done accordingly; and Parker, a creature suited to the times, put in his place. And 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, [Hist. of his own times, Vol. 3. p. 119.] “looked on all these proceedings with just indignation. It was thought an open piece of robbery and burglary, when men authorised 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 religion.”
This measure king James lived to repent, after repentance was too late. When the charter of London was restored and other measures of violence retracted, to avert the impending revolution, the expelled president and fellows of Magdalen College were per mitted 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 authorised 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, prirate 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.*
If it could be made to appear, that the trustees and the president and professors held their offices and franchises during the pleasure of tho 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 forever.
* Vide a full account of this case in state trials, 4 Edn. 4 Vol. page 262.
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 plaintiff's 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 anything and everything, 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 their 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 plaintiff's contend, in the second place, that the acts in question are repugnant to the 10th section of the 1st 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 contracts."
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."*
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 Fletcher vs. Peckt 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 state"
* 444 No. of the Fed. by Mr. Madison. + 6 Cranch 87.
It has also been decided, that a grant by a state before the revolution, is as much to be protected as a grant since.* But the case of Terrett vs. 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. vate 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, &c. 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 coporate 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 vs. vice chancellor of Cambridge,f 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 * New Jersey vs. Wilson. 7 Cranch 164.
+ 3 Burr. 1656.
acceptance of the university that gives the force to the charter of the crown.” In the King vs. Passmore,* 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.”+
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 vs. Dr. Askew,f it is said; “ The crown cannot oblige a man to be a coporator, 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 vs. Marshallę 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 vs. Passmore, 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 vs. Miller,]| 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."
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
*3 Term Rep. 240. Vide also 1 Kyd on Cor. 65. $4 Burr, 2200. $2 Mass. Rep. 269. 11 6 Term Rep. 277. 4 Vide also 2 Brown, Ch. Rep. 662. Ex parte, Bolton school.