by the same reasoning every act and every law must be considered in the nature of a contract, until the legislature would find themselves in such a labyrinth of contracts, with the United States constitution over their heads, that not a subject would be left within their jurisdiction."

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"The plaintiffs, however, say, an express contract exists here; that they, and they alone, shall be trustees of this institution. * * By a reference to the charter it will appear that the corporation was created independent of the trustees; and that they were afterwards appointed in a different clause of the charter. * * *

"The provision in the charter with regard to the number, was intended as a regulation to limit the board in their appointments, and not with a view to control the legislature. * * * Who are the parties to all these contracts? Can there be any other, either express or implied, than the founder, the power creating the corporation and those for whose benefit it is established? As a public institution, we believe the crown has been shown to be the founder. Or even as an eleemosynary corporation, that the rights of foundation rest in the crown, from the public endowments. The crown also was the power that created it. The state, since the Revolution, succeeds to the rights of the crown. Terrett v. Taylor, 9 Cranch, 50."

The counsel all agreed that if proceedings could be successfully instituted in the name of the state for a forfeiture, the college funds would go back to the donors or their heirs, and that no court of chancery existed to correct abuses, unless the legislature had such powers, which the counsel for the plaintiffs denied.

More than three hundred references were made by the various counsel to decided cases, statutes and standard works of authority.

Webster was not always equally great and impressive. Sometimes he was comparatively dry, heavy and uninteresting. A great subject and a great occasion would always bring out his cold, unimpassioned logic. But when hard pressed or weighted down with responsibilities, as he was in this case, he apparently became charged with volcanic fire.

His argument at Exeter was never reported, but tradition, public prints and old letters, point to but one conclusion. If not the greatest, it was one of the most brilliant efforts of his life, and produced a most extraordinary effect. He closed with the "Cæsar in the senate house" peroration, which was so much admired by Professor Goodrich and others, when he recited it at Washington (1 Life of Webster, 170), and the court adjourned in tears.

The counsel for the state were overmatched, but they were able men, and, in comparison with what in other hands afterwards befel their cause in Washington, handled it with consummate skill. The counsel for the trustees differed in their views, as will hereafter appear, upon a single point, which was understood by the opposing counsel and the court to have been waived or abandoned. Upon the other points, they were a unit in argument, whatever their private convictions might have been. Their strategic plan was to carry the state court with them if possible, and, failing in that, to break the force of an adverse decision by dividing the court. To accomplish this, they put forth all their powers, but failed. The judges continued the cause for advisement till the November term, at Plymouth, 1817. On November 6, 1817, the chief justice read the unanimous opinion of the court, adverse to the trustees, which occupies nearly 30 pages in Farrar's report. Its pith is stated in the head-notes in 1 N. H. III, which were undoubtedly prepared by the chief justice:

1. "The corporation of Dartmouth College is a public corporation."

2. "An act of the legislature adding new members to such a corporation, without the consent of the old corporation, is not repugnant to the constitution of this state."

3. "The charter of the king, creating the corporation of Dartmouth College is not a contract within the meaning of that clause in the constitution of the United States, which prohibits states from passing laws impairing the obligation of contracts."

The court say, "This cause has been argued on both sides with uncommon learning and ability, and we have witnessed

with pleasure and with pride a display of talents and eloquence upon this occasion in the highest degree honorable to the profession of the law in this state. If the counsel of the plaintiffs have failed to convince us that the action can be maintained, it has not been owing to any want of diligence in research, or ingenuity in reasoning, but to a want of solid and substantial grounds on which to rest their arguments."

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The court define at length the characteristics of private and public corporations. They do not assume, as has so often erroneously been said, but decide that this was a public corporation, and give the reasons therefor. They say: Public corporations are those which are created for public purposes,. and whose property is devoted to the objects for which they are created. The corporators have no private beneficial interest, either in their franchises or their property. The only private right which individuals can have in them, is the right of being and acting as members."

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"A corporation, all of whose franchises are exercised for

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public purposes, is a public corporation. Because in both cases all the property and franchises of the corporations would in fact be public property. A gift to a corporation created for public purposes is in reality a gift to the public. * Whether an incorporated college, founded and endowed by an individual, who had reserved to himself a control over its affairs as a private visitor, must be viewed as a public or as a private corporation, it is not necessary now to decide, because it does not appear that Dartmouth College was subject to any private visitation whatever."

After quoting at length from the charter, the court say: "Such are the objects and such the nature of this corporation, appearing upon the face of the charter. It was created for the purpose of holding and managing property for the use of the college, and the college was founded for the purpose of spreading the knowledge of the Great Redeemer among the savages and of furnishing the best means of education to the province of New Hampshire. These great purposes are surely, if anything can be, matters of public concern. Who

has any private interest either in the objects or property of this institution! The trustees themselves have no greater interest in the spreading of christian knowledge among the Indians, and in providing the best means of education, than any other individuals in the community. Nor have they any private interest in the property of this institution, nothing that can be sold or transferred, that can descend to their heirs, or can be assets in the hands of their administrators. If all the property of the institution were destroyed, the loss would be exclusively public, and no private loss to them. So entirely free are they from any private interest in this respect, that they are competent witnesses in causes where the corporation is a party, and the property of the corporation in They, [the trustees,] have no private right in the institution, except the right of office, the right of being trustees, and of acting as such. It therefore seems to us that if such a corporation is not to be considered as a public corporation, it would be difficult to find one that could be so considered. * * All private

contest.

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rights in this institution must belong either to those who founded, or whose bounty has endowed it; to the officers and students of the college, or to the trustees. As to those who founded or who have endowed it, no person of this description who claims any private right has been pointed out or is known to us."

"It is not understood that any person claims to be visitor to this college. An absolute donation of land or money to an institution of this kind creates no private rights in it. Besides, if the private rights of founders or donors have been infringed by these acts, it is their business to vindicate their own rights. It is no concern of these plaintiffs. When founders and donors complain, it will be our duty to hear and decide; but we cannot adjudicate upon their rights till they come judicially before us."

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"But it is said that the charter of 1769 is a contract, the validity of which is impaired by these acts in violation of that clause in the tenth section of the first article of the constitution of the United States, which declares that 'no state shall

ent.

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pass any law impairing the obligation of contracts.' It has probably never yet been decided that a charter of this kind is a contract, within the meaning of the constitution of the United States. None of the cases cited were like the presThis clause in the constitution of the United States was obviously intended to protect private rights of property, and embracing all contracts relating to private property, whether executed or executory, and whether between individuals, between states, or between states and individuals. The word contracts must, however, be taken in its common and ordinary acceptation as an actual agreement between parties, by which something is granted or stipulated, immediately for the benefit of the actual parties. But this clause was not intended to limit the power of the states, in relation to their own public officers and servants, or to their own civil institutions, and must not be construed to embrace contracts, which are, in their nature, mere matters of civil institution; nor grants of power and authority, by a state to individuals, to be exercised for purposes merely public. Thus marriage is a contract; but being a mere matter of civil institution, is not within the meaning of this clause. A law, therefore, authorizing divorces, though it impairs the validity of marriage contracts, is not a violation of the constitution of the United States." *

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"The distinction we have here endeavored to lay down, between the contracts which are, and which are not intended by that instrument, seems to us to be clear and obvious. If the charter of a public institution, like that of Dartmouth College, is to be construed as a contract, within the intent of the constitution of the United States, it will, in our opinion, be difficult to say what powers, in relation to their public institutions, if any, are left to the states. It is a construction, in our view, repugnant to the very principles of all government, because it places all the public institutions of all the states beyond legislative control. For it is clear that Congress possesses no powers on the subject. We are, therefore, clearly of opinion that the charter of Dartmouth College is not a contract within the meaning of this clause in the constitution of the United States."