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it is in all other corporations; and this would as well justify the resumption or violation of the grant in any other case as in this. In the case of an advowson, the use is public, and the right cannot be turned to any private benefit or emolument. It is nevertheless a legal private right, and the property of the owner, as emphatically as his freehold. The rights and privileges of trustees, visitors, or governors of incorporated colleges, stand on the same foundation, They are so considered, both by lord Holt and lord Hardwicke.*
To contend that the rights of the plaintiffs may be taken away, because they derive from them no pecuniary benefit, or private emolument, or because they cannot be transmitted to their heirs, or would not be assets to pay their debts, is taking an extremely narrow view of the subject. According to this notion, the case would be different, if, in the charter, they had stipulated for a commission on the disbursement of the funds; and they have ceased to have any interest in the property, because they have undertaken to administer it gratuitously.
It cannot be necessary to say much in refutation of the idea, that there cannot be a legal interest, or ownership, in anything which does not yield a pecuniary profit; as if the law regarded no rights but the rights of money, and of visible tangible property. Of what nature are all rights of suffrage ? No elector has a particular personal interest; but each has a legal right, to be exercised at his own discretion, and it cannot be taken away from him. The exercise of this right directly and very materially affects the public; much more so than the exercise of the privileges of a trustee of this college. Consequences of the utmost magnitude may sometimes depend on the exercise of the right of suffrage by one or a few electors. Nobody was ever yet heard to contend, however, that on that account the public might take away the right or impair it. This notion appears to be borrowed from no better source than the repudiated doctrine of the three judges in the Aylesbury case.† That was an action against a returning officer for refusing the plaintiff's vote, in the election of a member of parliament.—Three of the judges of the king's bench held, that the action could not be maintained, because among other objections," it was not any matter of profit, either in presenti, or in futuro.” It would not enrich the plaintiff, in presenti, nor would it, in futuro, go to his heirs, or answer to pay his debts. But lord Holt and the house of lords were of another opinion. The judgment of the three judges was reversed, and the doctrine they held, having been exploded for a century, seems now for the first time to be revived.
Individuals have a right to use their own property for purposes of benevolence, either towards the public, or towards other individuals. They have a right to exercise this benevolence in such lawful manner as they may choose; and when the government has induced and excited it, by contracting to give perpetuity to the stipulated manner of erercising it, to rescind this contract, and seize on the property, is pot law, but violence. Whether the state will grant these franchises, and under what conditions it will grant them, it decides for itself.
* Phillips vs. Bury.-Green vs. Rutherforth, ubi supra._Vide also 2 Black. 21. + Ashby vs. White, 2 Lord Ray. 938.
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. Attorker General vs. Pearce. 2 Ilaywood'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."
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. I
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 plaintiffs 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 Kleekt 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. Nora 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 fuduris certum est dare formam negotiis, non ad facta præterita rerocari, nisi nominalim, et de præterito tempore, et adhuc pendentibus negotiis cautum sit. I 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 erpressly; 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
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