But when once granted, the constitution holds them to be sacred, till forfeited for just cause. That all property, of which the use may be beneficial to the public, belongs therefore to the public, is quite a new doctrine. It has no precedent, and is supported by no known principle. Dr. Wheelock might have answered his purposes, in this case, by executing a private deed of trust.-He might have conveyed his property to trustees, for precisely such uses as are described in this charter. Indeed it appears, that he had contemplated the establishing of his school in that manner, and had made his will, and devised the property to the same persons who were afterwards appointed trustees in the charter. Many literary and other charitable institutions are founded in that manner, and the trust is renewed, and conferred on other persons, from time to time, as occasion may require. In such a case, no lawyer would or could say that the legislature might divest the trustees, constituted by deed or will, seize upon the property, and give it to other persons, for other purposes. And does the granting of a charter, which is only done to perpetuate the trust in a more convenient manner make any difference? Does or can this change the nature of the charity, and turn it into a public political corporation?-Happily we are not without authority on this point. It has been considered and adjudged. Lord Hardwicke says, in so many words, "the charter of the crown cannot make a charity more or less public, but only more permanent than it would otherwise be.* The granting of the corporation is but making the trust perpetual, and does not alter the nature of the charity. The very object sought in obtaining such charter, and in giving property to such a corporation, is to make and keep it private property, and to clothe it with all the security and inviolability of private property. The intent is, that there shall be a legal private ownership, and that the legal owners shall maintain and protect the property, for the benefit of those for whose use it was designed. Who ever endowed the public? Who ever appointed a legislature to administer his charity? Or who ever heard, before, that a gift to a college, or hospital, or an asylum, was, in reality, nothing but a gift to the state. The state of Vermont is a principal donor to Dartmouth College. The lands given lie in that state. This appears in the special verdict. Is Vermont to be considered as having intended a gift to the state of New Hampshire in this case; as it has been said is to be the reasonable construction of all donations to the college? The legislature of New Hampshire affects to represent the public, and therefore claims a right to control all property destined to public use. What hinders Vermont from considering herself equally the representative of the public, and from resuming her grants, at her own pleasure? Her right to do so is less doubtful than the power of New Hampshire to pass the laws in question. In University vs. Foy the supreme court of North Carolina pronounced unconstitutional and void, a law repealing a grant to the University of North Carolina; although that university was originally erected and endowed by a statute of the state. That case was a * 2 Atk. 87. Attorney General vs. Pearce. + 2 Haywood's Rep. grant of lands, and the court decided that it could not be resumed. This is the grant of a power and capacity to hold lands. Where is the difference of the cases, upon principle? In Terrett vs. Taylor this court decided, that a legislative grant or confirmation of lands, for the purposes of moral and religious instruction, could no more be rescinded than other grants. The nature of the use was not holden to make any difference. A grant to a parish or church, for the purposes which have been mentioned, cannot be distinguished, in respect to the title it confers, from a grant to a college for the promotion of piety and learning. To the same purpose may be cited the case of Pawlett vs. Clark. The state of Vermont, by statute in 1794, granted to the respective towns in that state, certain glebe lands lying within those towns for the sole use and support of religious worship. In 1799, an act was passed to repeal the act of 1794; but this court declared, that the act of 1794, so far as it granted the glebes to the towns, could not afterwards be repealed by the legislature, so as to divest the rights of the towns under the grant." 66 It will be for the other side to show, that the nature of the use, decides the question, whether the legislature has power to resume its grants. It will be for those, who maintain such a doctrine, to show the principles and cases upon which it rests. It will be for them also to fix the limits and boundaries of their doctrine, and to show, what are and what are not, such uses as to give the legislature this power of resumption and revocation. And to furnish an answer to the cases cited, it will be for them further to show, that a grant for the use and support of religious worship, stands on other ground than a grant for the promotion of piety and learning. I hope enough has been said to show, that the trustees possessed vested liberties, privileges, and immunities, under this charter; and that such liberties, privileges and immunities, being once lawfully obtained and vested, are as inviolable as any vested rights of property whatever.-Rights to do certain acts, such, for instance, as the visitation and superintendence of a college and the appointment of its officers, may surely be vested rights, to all legal intents, as completely as the right to possess property. A late learned judge of this court has said, when I say that a right is vested in a citizen, I mean that he has the power to do certain actions; or to possess certain things; according to the law of the land. If such be the true nature of the plaintiffs' interests under this charter, what are the articles in the New Hampshire bill of rights which these acts infringe? They infringe the second article; which says, that the citizens of the state have a right to hold and possess property. The plaintiff's had a legal property in this charter; and they had acquired property under it. The acts deprive them of both. They impair and take away the charter; and they appropriate the property to new uses, against their consent. The plaintiffs cannot now hold the property acquired by themselves, and which this article says they have a right to hold. *9 Cranch 43. † 9 Cranch 292. 3 Dal. 394 They infringe the twentieth article. By that article it is declared, that in questions of property, there is a right to trial. The plaintiffs are divested, without trial or judgment. They infringe the twenty-third article. It is therein declared, that no retrospective laws shall be passed. This article bears directly on the case. These acts must be deemed to be retrospective, within the settled construction of that term. What a retrospective law is, has been decided on the construction of this very article, in the circuit court for the first circuit. The learned judge of that circuit, says, "every statute which takes away, or impairs, vested rights, acquired under existing laws, must be deemed retrospective." That all such laws are retrospective, was decided also in the case of Dash vs. Van Kleck† where a most learned judge quotes this article from the constitution of New Hampshire, with manifest approbation, as a plain and clear expression of those fundamental and unalterable principles of justice, which must lie at the foundation of every free and just system of laws. Can any man deny that the plaintiffs had rights, under the charter, which were legally vested, and that by these acts, those rights are impaired? "It is a principle in the English law," says chief justice Kent, in the case last cited, as ancient as the law itself, that a statute, even of its omnipotent parliament, is not to have a retrospective effect. Nova constitutio futuris formam imponere debet, et non præteritis. The maxim in Bracton, was probably taken from the civil law, for we find in that system the same principle, that the lawgiver cannot alter his mind to the prejudice of a vested right. Nemo potest mutare concilium suum in alterius injuriam.§ This maxim of Papinian is general in its terms, but Dr. Taylor applies it directly as a restriction upon the lawgiver, and a declaration in the code leaves no doubt as to the sense of the civil law. Leges et constitutiones futu ris certum est dare formam negotiis, non ad facta præterita revocari, nisi nominatim, et de præterito tempore, et adhuc pendentibus negotiis cautum sit. This passage, according to the best interpretation of the civilians, relates not merely to future suits, but to future, as contradistinguished from past contracts and vested rights.** It is, indeed, admitted that the prince may enact a retrospective law, provided it be done expressly; for the will of the prince under the despotism of the Roman Emperors was paramount to every obligation. Great latitude was anciently allowed to legislative expositions of statutes; for the separation of the judicial from the legislative power was not then distinctly known or prescribed. The prince was in the habit of interpreting his own laws for particular occasions. This was called the Interlocutio Principis; and this, according to Huber's definition, was, quando principes inter partes loquuntur et jus dicunt.†† No correct civilian, and especially no proud admirer of the ancient republic, (if any such then existed) could have reflected on this interference with private rights and pending suits without disgust and indignation; and we are rather surprised to find that under the violent * 2 Gal. 103. Society vs. Wheeler. Bracton Lib. 4. fol. 228. 2nd Inst. 292. ** Perezii Prælect. h. t. +7 Johnson's Rep. 477. § Dig. 50. 17. 75. Cod. 1. 14. 7. tt Prælect Juris Civ. vol. 2. 545. and irregular genius of the Roman government, the principle before us should have been acknowledged and obeyed to the extent in which we find it. The fact shows that it must be founded in the clearest justice. Our case is happily very different from that of the subjects of Justinian. With us, the power of the lawgiver is limited and defined; the judicial is regarded as a distinct, independent power: private rights have been better understood and more exalted in public estimation, as well as secured by provisions dictated by the spirit of freedom, and unknown to the civil law. Our constitutions do not admit the power assumed by the Roman prince, and the principle we are considering is now to be regarded as sacred." These acts infringe also the thirty-seventh article of the constitution of New Hampshire; which says, that the powers of government shall be kept separate. By these acts, the legislature assumes to exercise a judicial power. It declares a forfeiture, and resumes franchises, once granted, without trial or hearing. If the constitution be not altogether waste paper, it has restrained the power of the legislature, in these particulars. If it has any meaning, it is, that the legislature shall pass no act directly and manifestly impairing private property and private privileges. It shall not judge, by act. It shall not decide, by act. It shall not deprive, by act. But it shall leave all these things to be tried and adjudged, by the law of the land. The fifteenth article has been referred to before. It declares that no one shall be "deprived of his property, immunities or privileges, but by the judgment of his peers or the law of the land." Notwithstanding the light in which the learned judges in New Hampshire viewed the rights of the plaintiffs under the charter, and which has been before adverted to, it is found to be admitted in their opinion, that those rights are privileges within the meaning of this fifteenth article of the bill of rights. Having quoted that article, they say: "that the right to manage the affairs of this college, is a privilege within the meaning of this clause of the bill of rights, is not to be doubted." In my humble opinion this surrenders the point. To resist the effect of this admission, however, the learned judges add -"But how a privilege can be protected from the operation of the law of the land by a clause in the constitution, declaring that it shall not be taken away, but by the law of the land, is not very easily understood."-This answer goes on the ground, that the acts in question are laws of the land, within the meaning of the constitution. If they be so, the argument drawn from this article is fully answered. If they be not so, it being admitted that the plaintiffs' rights are "privileges," within the meaning of the article, the argument is not answered, and the article is infringed by the acts. Are then these acts of the legislature, which affect only particular persons and their particular privileges, laws of the land? Let this question be answered by the text of Blackstone. "And first it (i. e. law) is a rule: not a transient sudden order from a superior to or concerning a particular person; but something permanent, uniform, and universal. Therefore a particular act of the legislature to confiscate the goods of Titius, or to attaint him of high treason, does not enter into the idea of a municipal law: for the operation of this act is spent upon Titius only, and has no relation to the community in general; it is rather a sentence than a law."* Lord Coke is equally decisive and emphatic. Citing and commenting on the celebrated 29th chap. of Magna Charta, he says, "no man shall be disseized, &c. unless it be by the lawful judgment, that is, verdict of equals, or by the law of the land, that is, (to speak it once for all,) by the due course and process of law. Have the plaintiffs lost their franchises by "due course and process of law?" On the contrary, are not these acts, "particular acts of the legislature, which have no relation to the community in general, and which are rather sentences than laws ?" By the law of the land, is most clearly intended, the general law; a law, which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial. The meaning is, that every citizen shall hold his life, liberty, property, and immunities under the protection of the general rules which govern society. Everything which may pass under the form of an enactment, is not therefore to be considered the law of the land. If this were so, acts of attainder, bills of pains and penalties, acts of confiscation, acts reversing judgments, and acts directly transferring one man's estate to another, legislative judgments, decrees, and forfeitures in all possible forms, would be the law of the land. Such a strange construction would render constitutional provisions of the highest importance completely inoperative and void. It would tend directly to establish the union of all powers in the legislature. There would be no general permanent law for courts to administer, or for men to live under. The administration of justice would be an empty form, an idle ceremony. Judges would sit to execute legislative judgments and decrees; not to declare the law or to administer the justice of the country. "Is that the law of the land," said Mr. Burke, "upon which, if a man go to Westminster Hall, and ask counsel by what title or tenure he holds his privilege or estate according to the law of the land, he should be told, that the law of the land is not yet known; that no decision or decree has been made in his case; that when a decree shall be passed, he will then know what the law of the land is? Will this be said to be the law of the land, by any lawyer who has a rag of a gown left upon his back, or a wig with one tie upon his head?” That the power of electing and appointing the officers of this college, is not only a right of the trustees as a corporation, generally, and in the aggregate, but that each individual trustee has also his own individual franchise in such right of election and appointment, is according to the language of all the authorities. Lord Holt says, "it is agreeable to reason and the rules of law, that a franchise should be vested in the corporation aggregate, and yet the benefit of it to redound to the particular members, and to be enjoyed by them in their private capacity. Where the privilege of election is used by particular persons, it is a particular right, vested in every particular man.”‡ It is also to be considered, that the president and professors of this college have rights to be affected by these acts. Their interest † Coke 2 In. 46. 2 Lord Ray. 952. * 1 Black. Com. 44. |