strictly public, and such as are private. Within the former denomination are included all corporations, created for public purposes only, such as cities, towns, parishes, and other public bodies. Within the latter denomination all corporations are included, which do not strictly belong to the former. There is no doubt, as to public corporations, which exist only for public purposes, that the legislature may change, modify, enlarge, and restrain them; with this limitation, however, that property, held by such corporations, shall still be secured for the use of those, for whom, and at whose expense it has been acquired. The principle may be stated in a more general form. If a charter be a mere grant of political power, if it create a civil institution, to be employed in the administration of the government, or, if the funds be public property alone, and the government alone be interested in the management of them, the legislative power over such charter is not restrained by the constitution, but remains unlimited. The reason is, that it is only a mode of exercising public rights and public powers, for the promotion of the general interest; and, therefore, it must, from its very nature, remain subject to the legislative will, so always that private rights are not infringed, or trenched upon.

§ 709. But an attempt has been made to press this principle much farther, and to exempt from the constitutional prohibition all charters, which, though granted to private persons, are in reality trusts for purposes and objects, which may, in a certain sense, be deemed public and general. The first great case, in which this doctrine became the subject of judicial examination and decision, was the case of Dartmouth College. The legislature of New-Hampshire had, without the

consent of the corporation, passed an act changing the organization of the original provincial charter of the college, and transferring all the rights, privileges, and franchises from the old charter trustees to new trustees, appointed under the act. The constitutionality of the act was contested, and after solemn argument, it was deliberately held by the Supreme Court, that the provincial charter was a contract within the meaning of the constitution, and that the amendatory act was utterly void, as impairing the obligation of that charter. The college was deemed, like other colleges of private foundation, to be a private eleemosynary institution, endowed, by its charter, with a capacity to take property, unconnected with the government. Its funds were bestowed upon the faith of the charter, and those funds consisted entirely of private donations. It is true, that the uses were in some sense public; that is, for the general benefit, and not for the mere benefit of the corporators; but this did not make the corporation a public corporation. It was a private institution for general charity. It was not distinguishable in principle from a private donation, vested in private trustees, for a public charity, or for a particular purpose of beneficence. And the state itself, if it had bestowed funds upon a charity of the same nature, could not resume those funds. In short, the charter was deemed a contract, to which the government, and the donors, and the trustees of the corporation, were all parties. It was for a valuable consideration; for the security and disposition of property, which was entrusted to the corporation upon the faith of its terms; and the trustees acquired rights under it, which could not be taken away; for they came to them clothed with trusts, which they were obliged to perform, and could not constitutionally disregard.

§ 710. It has also been made a question, whether a compact between two states is within the scope of the prohibition. And this also has been decided in the affirmative. The terms, compact and contract, are synonymous; and, when propositions are offered by one state, and agreed to, and accepted by another, they necessarily constitute a contract between them. There is no difference, in reason or in law, to distinguish between contracts made by a state with individuals, and contracts made between states. Each ought to be equally inviolable.

§ 711. Before quitting this subject it may be proper to remark, that as the prohibition, respecting ex post facto laws, applies only to criminal cases; and the other is confined to impairing the obligation of contracts; there are many laws of a retrospective character, which may yet be constitutionally passed by the state legislatures, however unjust, oppressive, or impolitic they may be. Retrospective laws are, indeed, generally unjust; and, as has been forcibly said, neither accord with sound legislation, nor with the fundamental principles of the social compact. Still they are, with the exceptions above stated, left open to the states, according to their own constitutions of government; and become obligatory, if not prohibited by the latter.

§ 712. Whether, indeed, independently of the constitution of the United States, the nature of republican and free governments does not necessarily impose some restraints upon the legislative power, has been much discussed. It seems to be the general opinion, fortified by a strong current of judicial opinion, that since the American revolution no state government can be presumed to possess the trancendental sovereignty to take away vested rights of property;

to take the property of A. and transfer it to B. by a mere legislative act. A government can scarcely be deemed to be free, where the rights of property are left solely dependent upon a legislative body, with out any restraint. The fundamental maxims of a free government seem to require, that the rights of personal liberty, and private property should be held sacred. At least, no court of justice, in this country, would be warranted in assuming, that any state legislature possessed a power to violate and disregard them; or that such a power, so repugnant to the common principles of justice and civil liberty, lurked under any general grant of legislative authority, or ought to be implied from any general expression of the will of the people, in the usual forms of the constitutional delegation of power. The people ought not to be presumed to part with rights, so vital to their security and well-being, without very strong, and positive declarations to that effect.

§ 713. The remaining prohibition in this clause is, that no state shall "grant any title of nobility." The reason of this prohibition is the same, as that, upon which the like prohibition to the government of the nation is founded. Indeed, it would be almost absurd to provide sedulously against such a power in the latter, if the states were still left free to exercise it. It has been emphatically said, that this is the corner-stone of a republican government; for there can be little danger, while a nobility is excluded, that the government will ever cease to be that of the people.

CHAPTER XXXV.

PROHIBITIONS ON THE STATES.

§ 714. THE next clause of the constitution is, "No state shall, without the consent of congress, lay any duty on tonnage; keep troops, or ships of war "in time of peace; enter into any agreement or compact with another state, or with a foreign power; or engage in war, unless actually invaded, or in such "imminent danger, as will not admit of delay."

66

66

§ 715. The first part of this clause, respecting laying a duty on tonnage, has been already considered. The remaining clauses have their origin in the same general policy and reasoning, which forbid any state from entering into any treaty, alliance, or confederation; and from granting letters of marque and reprisal. In regard to treaties, alliances, and confederations, they are wholly prohibited. But a state may, with the consent of congress, enter into an agreement, or compact with another state, or with a foreign power. What precise distinction is here intended to be taken between treaties, and agreements, and compacts is nowhere explained; and has never as yet been the subject of any exact judicial, or other examination.

§ 716. The other prohibitions in the clause, respect the power of making war, which is appropriately confided to the national government. The setting on foot of an army, or navy by a state, in times of peace, might be a cause of jealousy between neighbouring states, and provoke the hostilities of foreign bordering nations. In other cases, as the protection of the whole