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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,‡ 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. Marshall 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."T
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. 6 Term Rep. 277. ¶ Vide also 2 Brown, Ch. Rep. 662. Ex parte, Bolton school.
New Hampshire, and to enlarge it, beyond its original design, among other things, for the benefit of that province: and thereupon a charter is given to him, and his associates designated by himself, promising and assuring to them under the plighted faith of the state, the right of governing the college, and administering its concerns in the manner provided in the charter. There is a complete and perfect grant to them of all the power of superintendence, visitation, and government. Is not this a contract? If lands or money had been granted to him and his associates, for the same purposes, such grant could not be rescinded. And is there any difference in legal contemplation, between a grant of corporate franchises, and a grant of tangible property? No such difference is recognised in any decided case, nor does it exist in the common apprehension of mankind.
It is therefore contended, that this case falls within the true meaning of this provision of the constitution, as expounded in the decisions of this court; that the charter of 1769, is a contract, a stipulation or agreement; mutual in its considerations, express and formal in its terms, and of a most binding and solemn nature. That the acts in question impair this contract, has already been sufficiently shown. They repeal and abrogate its most essential parts.
A single observation may not be improper on the opinion of the court of New Hampshire, which has been published. The learned judges, who delivered that opinion, have viewed this question in a very different light, from that in which the plaintiffs have endeavoured to exhibit it. After some general remarks, they assume that this college is a public corporation; and on this basis their judgment rests. Whether all colleges are not regarded as private, and eleemosynary corporations, by all law writers, and all judicial decisions; whether this college was not founded by Dr. Wheelock; whether the charter was not granted at his request, the better to execute a trust, which he had already created; whether he and his associates did not become visitors, by the charter; and whether Dartmouth College be not, therefore, in the strictest sense, a private charity, are questions which the learned judges do not appear to have discussed.
It is admitted in that opinion, that if it be a private corporation, its rights stand on the same ground as those of an individual. The great question, therefore, to be decided, is, to which class of corporations do colleges thus founded belong? And the plaintiffs have endeavoured to satisfy the court, that according to the well settled principles, and uniform decisions of law, they are private eleemosynary corporations.
Much has heretofore been said on the necessity of admitting such a power in the legislature as has been assumed in this case. Many cases of possible evil have been imagined, which might otherwise be without remedy. Abuses, it is contended, might arise in the management of such institutions, which the ordinary courts of law would be unable to correct. But this is only another instance of that habit of supposing extreme cases, and then of reasoning from them, which is the constant refuge of those who are obliged to defend a cause, which, upon its merits, is indefensible. It would be sufficient to say, in answer, that it is not pretended, that there was here any such case of necessity. But a still more satisfactory answer, is,
that the apprehension of danger is groundless, and therefore the whole argument fails. Experience has not taught us that there is danger of great evils or of great inconvenience from this source. Hitherto, neither in our own country nor elsewhere, have such cases of necessity occurred. The judicial establishments of the state are presumed to be competent to prevent abuses and violations of trust, in cases of this kind, as well as in all others. If they be not, they are imperfect, and their amendment would be a most proper subject for legislative wisdom. Under the government and protection of the general laws of the land, these institutions have always been found safe, as well as useful. They go on, with the progress of society, accommodating themselves easily, without sudden change or violence, to the alterations which take place in its condition; and in the knowledge, the habits, and pursuits of men. The English colleges were founded in Catholic ages. Their religion was reformed with the general reformation of the nation; and they are suited perfectly well to the purpose of educating the protestant youth of modern times. Dartmouth college was established under a charter granted by the provincial government; but a better constitution for a college, or one more adapted to the condition of things under the present government, in all material respects, could not now be framed. Nothing in it was found to need alteration at the revolution. The wise men of that day saw in it one of the best hopes of future times, and commended it, as it was, with parental care, to the protection and guardianship of the government of the state. A charter of more liberal sentiments, of wiser provisions, drawn with more care, or in a better spirit, could not be expected at any time or from any source. The college needed no change in its organization or government. That which it did need was the kindness, the patronage, the bounty of the legislature; not a mock elevation to the character of a university, without the solid benefit of a shilling's donation to sustain the character; not the swelling and empty authority of establishing institutes and other colleges. This unsubstantial pageantry would seem to have been in derision of the scanty endowment and limited means of an unobtrusive but useful and growing seminary. Least of all was there a necessity, or pretence of necessity, to infringe its legal rights, violate its franchises and privileges, and pour upon it these overwhelming streams of litigation.
But this argument from necessity, would equally apply in all other cases. If it be well founded, it would prove, that whenever any inconvenience or evil should be experienced from the restrictions imposed on the legislature by the constitution, these restrictions ought to be disregarded. It is enough to say, that the people have thought otherwise. They have, most wisely, chosen to take the risk, of occasional inconvenience from the want of power, in order that there might be a settled limit to its exercise, and a permanent security against its abuse. They have imposed prohibitions and restraints; and they have not rendered these altogether vain and nugatory by conferring the power of dispensation. If inconvenience should arise, which the legislature cannot remedy under the power conferred upon it, it is not answerable for such inconvenience. That which it cannot do, within the limits prescribed to it, it cannot do at all. No
legislature in this country is able, and may the time never come when it shall be able, to apply to itself the memorable expression of a Roman pontiff; "Licet hoc DE JURE non possumus, volumus tamen
DE PLENITUDINE POTESTATIS.
The case before the court is not of ordinary importance, nor of every day occurrence. It affects not this college only, but every college, and all the literary institutions of the country. They have flourished, hitherto, and have become in a high degree respectable and useful to the community. They have all a common principle of existence, the inviolability of their charters. It will be a dangerous, a most dangerous experiment, to hold these institutions subject to the rise and fall of popular parties, and the fluctuations of political opinions. If the franchise may be at any time taken away, or impaired, the property also may be taken away, or its use perverted. Benefactors will have no certainty of effecting the object of their bounty; and learned men will be deterred from devoting themselves to the service of such institutions, from the precarious title of their offices. Colleges and halls will be deserted by all better spirits, and become a theatre for the contention of politics. Party and faction will be cherished in the places consecrated to piety and learning. These consequences are neither remote nor possible only. They are certain and immediate.
When the court in North Carolina declared the law of the state, which repealed a grant to its university, unconstitutional and void, the legislature had the candor and the wisdom to repeal the law. This example, so honorable to the state which exhibited it, is most fit to be followed on this occasion. And there is good reason to hope, that a state, which has hitherto been so much distinguished for temperate councils, cautious legislation, and regard to law, will not fail to adopt a course, which will accord with her highest and best interest, and in no small degree elevate her reputation.
It was for many and obvious reasons most anxiously desired, that the question of the power of the legislature over this charter should have been finally decided in the state court. An earnest hope was entertained that the judges of that court might have viewed the case in the light favorable to the rights of the trustees. That hope has failed. It is here, that those rights are now to be maintained, or they are prostrated forever. Omnia alia perfugia bonorum, subsidia, consilia, auxilia, jura ceciderunt. Quem enim alium appellem? quem obtester? quem implorem? Nisi hoc loco, nisi apud vos, nisi per vos, judices, salutem nostram, quae spe exigua extremaque pendet, tenuerimus 5 nihil est præterea quo confugere possimus.
IN THE IMPEACHMENT OF JAMES PRESCOTT, BEFORE THE SENATE OF MASSACHUSETTS.-1821.
A Petition having been presented to the House of Representatives of the Commonwealth of Massachusetts, praying an inquiry into the official conduct of James Prescott, Esquire, Judge of Probate of Wills, &c. for the County of Middlesex, and charging him with misconduct and maladministration in office; and having been referred to a committee, who reported a statement of facts, together with resolutions, setting forth that the said Prescott ought to be impeached therefor, at the bar of the Senate of the Commonwealth on the 2d day of February, 1821, an order was passed accordingly, and the Senate demanded to take measures for his impeachment and appearance to answer thereto. A committee was thereupon appointed to prepare and report articles of impeachment. And John Glen King, Levi Lincoln, William Baylies, Warren Dutton, Samuel P. P. Fay, Lemuel Shaw and Sherman Leland, Esquires, were appointed Managers. Fifteen Articles of Impeachment were exhibited and read.
The Articles substantially charged him with holding Probate Courts for transacting business at other times than those authorised by law, demanding and taking illegal fees, and acting as counsel and receiving fees as such in cases pending, in his own Court, before him, as Judge.
After receiving the Respondent's answer to the Articles of Impeachment, and hearing the evidence in support of and against the same; Messrs. Leland, Shaw and Dutton argued the case in behalf of the Managers. Mr. Hoar then opened the argument, on the part of the Respondent, Mr. Blake followed, and was succeeded by Mr. Webster, who spoke as follows:
MR. PRESIDENT,-I agree with the Hon. Managers, in the importance which they have attributed to this proceeding. They have, I think, not at all overrated that importance, nor ascribed to the occasion, a solemnity which does not belong to it. Perhaps, however, I differ from them, in regard to the causes which give interest and importance to this trial, and to the parties likely to be most lastingly and deeply affected by its progress and result. The Respondent has as deep a stake, no doubt, in this trial, as he can well have in anything which does not affect life. Regard for reputation, love of honorable character, affection for those who must suffer with him, if he suffers, and who will feel your sentence of conviction, if you should pronounce one, fall on their own heads, as it falls on his, cannot but excite, in his breast, an anxiety, which nothing could well increase, and nothing but a consciousness of upright intention could enable him to endure. Yet, sir, a few years will carry him far beyond the reach of the consequences of this trial. Those same years will bear away, also, in their rapid flight, those who prosecute and those