later as deliberately reaffirmed his estimate. Mason had two loves, one desire and one passion. He loved his family, resigning his position as United States senator rather than be separated from them; and next to his family, he loved the law devotedly He desired a competence, and his passion was a vitriolic contempt. The gifts and graces of the orator were denied to this great man, but on his feet in the courtroom he was seemingly an inspired Euclid.

Smith had been four terms in Congress, judge of the United States circuit court, chief justice of the superior court for seven years; then governor of the state, and then chief justice of the supreme court for three years. He was of Scotch-Irish stock; possessed of great and accurate learning, and of great natural abilities; but, like Mason, he was no

orator.

Of Webster, the "black giant of the East," it is only necessary to say that he was in full possession of his great powers.

Sullivan was from Irish and Revolutionary stock-a race of soldiers, orators and lawyers. He was attorney-general, (as his father was before him and his son after him) for twenty-one years; a classical scholar, well read in the law; an excellent special pleader; swift to perceive, prompt to act, and full of resources. He relied too little on his preparation, and too much upon his oratory, his power of illustration and argument. But neither the court, the jury nor the people ever grew weary of listening to his silver tones, or his arguments, that fell like music on the ear.

Bartlett was a "little giant," four years younger than Webster, and from the same town. He served three terms in Congress. He was from a family eminent for its physicians, preachers and jurists. He was indefatigable in preparation; eloquent in its highest sense; ready, witty and a popular idol. He was often pitted against Mason and other giants. The clergymen of the "standing order" with a portion of the old trustees and the faculty, swarmed from their general association into the Exeter court-room. The argument, • lasted two days, Mason speaking two, and Smith four hours for the trustees. Sullivan and Bartlett occupied three hours.

the next day in reply. Webster occupied less than two hours in closing the case for the trustees. None of these were taken down in short-hand, but, as afterwards written out from the copious minutes and notes of counsel or otherwise, and in some instances revised, were, except Webster's, reported by Judge Farrar. They occupy about one hundred and eighty pages in Farrar's report, of which forty-three pages were assigned to Mason, who was always comparatively brief; fifty-six pages to Smith, thirty-four pages to Sullivan, and forty-six pages to Bartlett.

Probably in consequence of this revision, arguments on one side were sometimes omitted, while the replies were given. They probably show, fairly enough, the general course of the argument. No summary would do them justice, but an outline of them may be useful. Mason's points, as stated by himself, were "That these acts are not obligatory; 1. because they are not within the general scope of legislative power; 2. Because they violate certain provisions of the constitution of this state restraining the legislative power; 3. Because they violate the constitution of the United States." In Farrar's report Mason devotes twenty-three pages to his first point, eight to the second and six to the third.

1. He urged that, "the only division of corporations material to the present enquiry, is that of civil and eleemosynary;" that the trustees constituted an eleemosynary corporation; that towns "were civil corporations of a peculiar kind;" that the legislature cannot "rightfully take from any such corporation its property, and transfer it to another;" that "somewhat similar to these are incorporated cities." "But where there is a special grant of peculiar privileges, the legislative power to new model or control them, if admitted at all, must be with great limitation. The legislature cannot abolish such corporations, or do anything equivalent to it. As far as the privileges are peculiar, and such as cannot be affected by a general law, it is not easy to see on what principles they can be essentially changed or altered by a special act of the legislature;" that the college "is clearly

an eleemosynary corporation, and of consequence, a private corporation."

He conceded that "the British Parliament can, as it is held, abolish corporations. So it can pass acts of attainder and of pains and penalties. But neither can be done by virtue of the ordinary and legitimate legislative power, which belongs to our legislature. According to the theory of the British government, the Parliament is omnipotent. 'A corporation may be dissolved by act of Parliament, which is boundless in its operations.""

"Will it now be asserted that the British Parliament or king, or both united, were competent to abolish or new model the colonial charters? If it could be done by legislative power alone, they might, for they possessed the whole legislative power over that subject matter." "The Parliament of Great Britain had no rightful power whatever over this corporation. The legislature of this state succeeded to all the power, which the king, who granted the charter, had, and no more.

"In England the creating of corporations appertains to the king, and he has all the legitimate power that exists for dissolving them, except what is vested in the judicial courts.'

"But the king cannot abolish a corporation, or give it a new organization, or alter any of its powers or privileges, without its consent."

"As successors to the king then, the legislature have no power to pass the acts in question, and it may be safely asserted that before the change in the form of government, the plaintiffs could not have been rightfully deprived of their property or privileges, without a trial in due course of law."

"It is of no consequence, as it respects the right, whether the privileges granted to the plaintiffs by their charter, are valuable, in a pecuniary point of view, or otherwise." He then relies upon the opinion in Calder v. Bull, 3 Dall. 383, that "the nature and ends of legislative power will limit the exercise of it."

2. That these acts were prohibited by article 15, the per legem terræ clause, article 23, which prohibits the passage of

"retrospective laws," and article 37, of the Bill of Rights of New Hampshire, which declares that the three essential powers of government "ought to be kept separate."

3. That the grant was "a contract" under the clause in the Federal constitution, "and not a law." That "there can be no doubt that there were competent parties to the contract; the king of one side, and the trustees named in the charter, of the other."

Judge Smith urged that the change of name was a violation of "chartered rights." He enforced the same views as Mason and commented at length upon Phillips v. Bury, and other cases relied upon in the opinion of Judge Story. He said, "It is the endowment which confers the right of visitation," and adds, "Let us now examine the constitution of Dartmouth College. Its original funds arose altogether from the donations of individuals, principally obtained through the agency of Dr. Wheelock. In no sense and in no way can it be said that they originated with the king or the public. Not a cent of money or an acre of land was given by the province or any public body till after the college went into operation." "Though the state have given lands they were not the real founders. They were not the first benefactors, who and who only, are considered as founders."

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"Do the defendants' counsel contend that if a town should acquire by gift, or otherwise, a fund for the support of a school for the inhabitants of such town, that the legislature could constitutionally annex another town, giving to all the inhabitants of the new corporation equal right to participate in this fund?" * * "But still Parliament may pass many acts, which our legislature are prohibited from passing."

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"It is the exercise of the same authority that Parliament can dissolve all corporations."

"Here seems everything requisite to form a compact. The king is one party; the donors in the first instance, and then the trustees, as their acknowledged substitutes or representatives are the other party." * * 66 'It is too late for the king to quarrel with the terms; he never did." "The truth

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is, the trustees, as a body politic, are the legal and equitable owners of the property and of the franchises conferred by the charter."

Sullivan, for the state, urged that this was a public corporation; that the test, as to whether it was public or private, was not whether it was endowed by the bounty of the government, or that of an individual, but, as was said by Lord Hardwicke, "the extensiveness of the objects to be benefitted;" that the charter answered the "questions," For whose benefit was this corporation erected?-for the benefit of the persons composing it, or that of the public?" by setting forth that it was "for the benefit of said province; that "it appears from the charter, that the corporation of Dartmouth College was established for the express, the avowed purpose, of promoting the welfare of a whole province. It was an instrument formed to attain objects in which no individual had a particular interest, but in which the community had a deep one. It was vested with power to hold property, in trust, for the public, but it could hold none for the use of the corporators. It was clothed with various powers, capacities and franchises, all of which were to be exercised for the benefit of the public, but not one of them for the advantage of its own members, or of any individuals whatever. In short it was created-it existed only for public purposes.' * * "If this corporation was a private one, I shall contend that the legislature had a right to alter its charter, so far as the public good required."

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Suppose the lands of a private corporation are wanted for a fortification or an arsenal; may they not be taken? Suppose they are wanted for a highway or for any important public purpose; may they not be taken? * Does the law regard the property of corporations with more vigilance than that of individuals? Are the rights of the former more sacred than those of the latter?"

"It is alleged that these acts violate the constitution of the United States. Where a charter of incorporation is granted, there is always, it is said, an implied contract on the part of the government, that the charter shall