suming the very ground in controversy. It is not admitted that a contract with a trustee is, in its own nature, revocable, whether it be for special or general purposes, for public charity or particular beneficence. A private donation, vested in a trustee, for objects of a general nature, does not thereby become a public trust, which the government may, at its pleasure, take from the trustee, and administer in its own way. The truth is, that the government has no power to revoke a grant, even of its own funds, when given to a private person or a corporation for special uses. It can not recall its own endowments, granted to any hospital or college, or city or town, for the use of such corporations. The only authority remaining to the government is judicial, to ascertain the validity of the grant, to enforce its proper uses, to suppress frauds, and, if the uses are charitable, to secure their regular administration, through the means of equitable tribunals, in cases where there would otherwise be a failure of justice. [Property contracts.] Another objection growing out of and connected with that which we have been considering, is, that no grants are within the constitutional prohibition, except such as respect property in the strict sense of the term; that is to say, beneficial interests in lands, tenements and hereditaments, etc., which may be sold by the grantees for their own benefit; and that grant of franchises, immunities and authorities not valuable to the parties as property are excluded from its purview. No authority has been cited to sustain this distinction, and no reason is perceived to justify its adoption. There are many rights, franchises and authorities which are valuable in contemplation of law, where no beneficial interest can accrue to the possessor. A grant to the next presentation to a church, limited to a grantee alone, has been already mentioned. A power of appointment, reserved in a marriage settlement, either to a party or a stranger, to appoint uses in favor of third persons, without compensation, is another instance. A grant of lands to a trustee to raise portions or pay debts, is, in law, a valuable grant, and conveys a legal estate. Even a power given by will to executors to sell an estate for payment of debts is, by the better opinions and authority, coupled with a trust, and capable of survivorship. Co. Litt., 113a, Harg. & Butler's note 2; Sugden on Powers 140; Jackson v. Jansen, 6 Johns, 73; Franklin v. Osgood, 2 John. Cas. 1; s. c. 14 Johns. 527; Zebach v. Smith, 3 Binn. 69; Lessee of Moody v. Vandyke, 4 Binn. 7, 31; Attorney-General v. Gleg, Atk. 356; 1 Bac. Abr. 586 (Gwyllim's ed.). Many dignities and offices existing at common law are merely honorary and without profit, and sometimes are onerous. Yet a grant of them has never been supposed the less a contract on that account. In respect to franchises, whether corporate or not, which include a pernancy of profits, such as a right of fishery, or to hold a ferry, a market or a fair, or to erect a turnpike, bank or bridge, there is no pretense to say that grants of them are not within the constitution. Yet they may, in point of fact, be of no exchangeable value to the owners. They may be worthless in the market. The truth, however, is, that all incorporeal hereditaments, whether they be immunities, dignities,

offices or franchises, or other rights, are deemed valuable in law. The owners have a legal estate and property in them, and legal remedies to support and recover them, in case of any injury, obstruction or disseizin of them. Whenever they are the subjects of a contract or grant, they are just as much within the reach of the constitution as any other grant. Nor is there any solid reason why a contract for the exercise of a mere authority should not be just as much guarded as a contract for the use and dominion of property. Mere naked powers, which are to be exercised for the exclusive benefit of the grantor, are revocable by him for that very reason. But it is otherwise where a power is to be exercised in aid of a right vested in the grantee. We all know that a power of attorney, forming a part of a security upon the assignment of a chose in action, is not revocable by the grantor. For it then sounds in contract, and is coupled with an interest. Walsh v. Whitcomb, 2 Esp. 565; Bergen v. Bennett, 1 Caines' Cas. 1, 15; Raymond v. Squire, 11 Johns. 47. So, if an estate be conveyed in trust for the grantor, the estate is irrevocable in the grantee, although he can take no beneficial interest for himself. Many of the best settled estates stand upon conveyances of this nature; and there can be no doubt that such grants are contracts within the prohibition in question.

in esse.

[Franchises.] In respect to corporate franchises, they are, properly speaking, legal estates vested in the corporation itself as soon as it is They are not mere naked powers granted to the corporation, but powers coupled with an interest. The property of the corporation rests upon the possession of its franchises, and whatever may be thought as to the corporators, it can not be denied that the corporation itself has a legal interest in them. It may sue and be sued for them. Nay, more, this very right is one of its ordinary franchises. "It is likewise a franchise," says Mr. Justice Blackstone, "for a number of persons to be incorporated and subsist as a body politic, with power to maintain perpetual succession and do other corporate acts; and each individual member of such corporation is also said to have a franchise or freedom." 2 Bl. Comm. 37; 1 Kyd on Corp. 14, 16. In order to get rid of the legal difficulty of these franchises being considered as valuable hereditaments or property, the counsel for the defendant are driven to contend that the corporators or trustees are mere agents of the corporation, in whom no beneficial interest subsists; and so nothing but a naked power is touched by removing them from the trust; and then to hold the corporation itself a mere ideal being, capable indeed of holding property or franchises, but having no interest in them which can be the subject of contract. Neither of these positions is admissible. The former has been already sufficiently considered, and the latter may be disposed of in a few words. The corporators are not mere agents, but have vested rights in their character as corporators. The right to be a freeman of a corporation is a valuable temporal right. It is a right of voting and acting in the corporate concerns, which the law recognizes and enforces, and for a violation of which it provides a remedy. It is founded on the same basis as the right of

voting in public elections; it is as sacred a right, and whatever might have been the prevalence of former doubts since the time of Lord Holt, such a right has always been deemed a valuable franchise or privilege. Ashby v. White, 2 Ld. Raym. 938; 1 Kyd on Corp. 16. This reasoning, which has been thus far urged, applies with full force to the case of Dartmouth College. The franchises granted by the charter were vested in the trustees, in their corporate character. The lands and other property subsequently acquired were held by them in the same manner. They were the private demesnes of the corporation, held by it, not, as the argument supposes, for the use and benefit of the people of New Hampshire, but, as the charter itself declares, "for the use of the Dartmouth College." There were not, and in the nature of things could not be, any other cestui que use, entitled to claim those funds. They were, indeed, to be devoted to the promotion of piety and learning, not at large, but in that college and the establishments connected with it; and the mode in which the charity was to be applied, and the objects of it, were left solely to the trustees, who were the legal governors and administrators of it. No particular person in New Hampshire possessed a vested right in the bounty; nor could he force himself upon the trustees as a proper object. The legisla ture itself could not deprive the trustees of the corporate funds, nor annul their discretion in the application of them, nor distribute them among its own favorites. Could the legislature of New Hampshire have seized the land given by the state of Vermont to the corporation, and appropriated it to uses distinct from those intended by the charity, against the will of the trustees? This question can not be answered in the affirmative, until it is established that the legislature may lawfully take the property of A. and give it to B.; and if it could not take away or restrain the corporate funds, upon what pretense can it take away or restrain the corporate franchises? Without the franchises, the funds could not be used for corporate purposes; but without the funds, the possession of the franchises might still be of inestimable value to the college, and to the cause of religion and learning. [Rights of the trustees.] Thus far the rights of the corporation itself in respect to its property and franchises have been more immediately considered; but there are other rights and privileges belonging to the trustees collectively and severally which are deserving of notice. They are intrusted with the exclusive power to manage the funds, to choose the officers and to regulate the corporate concerns according to their own discretion. The jus patronatus is vested in them. The visitatorial power in its most enlarged extent also belongs to them. When this power devolves upon the founder of a charity it is an hereditament, descendible in perpetuity to his heirs, and in default of heirs it escheats to the government. Rex v. St. Catherine's Hall, 4 T. R. 233. It is a valuable right, founded in property, as much so as the right of patronage in any other case. It is a right which partakes of a judicial nature. May not the founder as justly contract for the possession of this right in return for his endowment, as for any other equivalent? and if, instead of holding it as an hereditament, he as

signs it in perpetuity to the trustees of the corporation, is it less a valuable hereditament in their hands? The right is not merely a collective right in all the trustees; each of them also has a franchise in it. 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 redound to the particular members, and be enjoyed by them in their private capacities. Where the privilege of election is used by particular persons, it is a particular right vested in each particular man." Ashby v. White, 2 Ld. Raym. 938, 952; Attorney-General v. Dixie, 13 Ves. 519. Each of the trustees had a right to vote in all elections. If obstructed in the exercise of it, the law furnished him with an adequate recompense in damages. If ousted unlawfully from his office, the law would, by a mandamus, compel a restoration.

It is attempted, however, to establish that the trustees have no interest in the corporate franchises, because it is said that they may be witnesses in a suit brought against the corporation. The case cited at the bar certainly goes the length of asserting that in a suit brought against a charitable corporation for a recompense for services performed for the corporation, the governors, constituting the corporation (but whether intrusted with its funds or not by the act of incorporation does not appear), are competent witnesses against the plaintiff. Weller v. Governor of the Foundling Hospital, 1 Peake's Cas. 153. But assuming this case to have been rightly decided (as to which, upon the authorities, there may be room to doubt), the corporators being technically parties to the record (Attorney-General v. City of London, 3 Bro. C. C. 171; s. c. 1 Ves. J. 243; Burton v. Hinde, 5 T. R. 174; Nason v. Thatcher, 7 Mass. 398; Phillips on Evid. 42, 52, 57 and notes; 1 Kyd on Corp. 304, etc.; Highmore on Mortm. 514), it does not establish that in a suit for the corporate property vested in the trustees in their corporate capacity, the trustees are competent witnesses. At all events, it does not establish that in a suit for the corporate franchises to be exercised by the trustees or to enforce their visitatorial power the trustees would be competent witnesses. On a mandamus to restore a trustee to his corporate or visitatorial power, it will not be contended that the trustee is himself a competent witness to establish his own rights, or the corporate rights. Yet, why not, if the law deems that a trustee has no interest in the franchise? The test of interest assumed in the argument proves nothing in this case. It is not enough to establish that the trustees are sometimes competent witnesses; it is necessary to show that they are always so in respect to the corporate franchises and their own. It will not be pretended that in a suit for damages for obstruction in the exercise of his official powers a trustee is a disinterested witness. Such an obstruction is not a damnum absque injuria. Each trustee has a vested right and legal interest in his office, and it can not be divested but by due course of law. The illustration, therefore, lends no new force to the argument, for it does not establish that when their own rights are in controversy the trustees have no legal interest in their offices.

The principal objections having been thus answered satisfactorily, at least, to my own mind, it remains only to declare, that my opinion, after the most mature deliberation, is that the charter of Dartmouth College, granted in 1769, is a contract within the purview of the constitutional prohibition.

[Effect of the revolution.] I might now proceed to the discussion of the second question; but it is necessary previously to dispose of a doctrine which has been very seriously urged at the bar, viz., that the charter of Dartmouth College was dissolved at the revolution, and is, therefore, a mere nullity. A case before Lord Thurlow has been cited in support of this doctrine. Attorney-General v. City of London, 3 Bro. C. C. 171; s. c. 1 Ves. Jr. 243. The principal question in that case was, whether the corporation of William and Mary College in Virginia (which had received its charter from King William and Queen Mary), should still be permitted to administer the charity under Mr. Boyle's will, no interest having passed to the college, under the will, but it acting as an agent or trustee, under a decree in chancery, or whether a new scheme for the administration of the charity should be laid before the court. Lord Thurlow directed a new scheme, because the college, belonging to an independent gov ernment, was no longer within the reach of the court. And he very unnecessarily added, that he could not now consider the college as a corporation, or as another report (1 Ves. Jr. 243) states that he could not take notice of it, as a corporation, it not having proved its existence as a corporation at all. If, by this, Lord Thurlow meant to declare, that all charters acquired in America from the crown were destroyed by the revolution, his doctrine is not law; and if it had been true, it would equally apply to all other grants from the crown, which would be monstrous. It is a principle of the common law, which has been recognized as well in this, as in other courts, that the divis ion of an empire works no forfeiture of previously vested rights of property. And this maxim is equally consonant with the common sense of mankind, and the maxims of eternal justice. Terrett v. Taylor, 9 Cranch 43, 50; Kelly v. Harrison, 2 Johns. Cas. 29; Jackson v. Lunn, 3 Johns. Cas. 109; Calvin's Case, 7 Co. 27. This objection, therefore, may be safely dismissed without further comment.

[Impairment of the charter.] The remaining inquiry is, whether the acts of the legislature of New Hampshire now in question, or any of them, impair the obligations of the charter of Dartmouth College. The attempt certainly is to force upon the corporation a new charter against the will of the corporators. Nothing seems better settled at the common law than the doctrine that the crown can not force upon a private corporation a new charter, or compel the old members to give up their own franchises, or to admit new members into the corporation. Rex v. Vice-Chancellor of Cambridge, 3 Burr. 1656; Rex v. Pasmore, 3 T. R. 240; 1 Kyd on Corp. 65; Rex v. Larwood, Comb. 316. Neither can the crown compel a man to become a member of such corporation against his will. Rex v. Dr. Askew, 4 Burr.

2200.

As little has it been supposed that under our limited govern