case, however, may be seen by the following quotation from Mr. Webster's argument: "Much has heretofore been said on the necessity of admitting such a power in the legislature as has been assumed in this case. Many cases of possible evil have been imagined, which might otherwise be without remedy. Abuses, it is contended, might arise in the management of such institutions, which the ordinary courts of law would be unable to correct. But this is only another instance of that habit of supposing extreme cases, and then of reasoning from them, which is the constant refuge of those who are obliged to defend a cause which, upon its merits, is indefensible. It would be sufficient to say in answer, that it is not pretended that there was here any such case of necessity. But a still more satisfactory answer is, that the apprehension of danger is groundless, and therefore the whole argument fails. . . . Dartmouth College was established under a charter granted by the Provincial government; but a better constitution for a college, or one more adapted to the condition of things under the present government, in all material respects, could not now be framed."1 There was another most essential fact lost sight of both by counsel and court, and that is, that this was a question, not only of power, and not of the proper exercise of power, but of the power of the State, and not of the power of the legislature. The question was, whether the people of New Hampshire, in their sovereign capacity, could make the alterations in the charter which the legislature attempted to make. This most vital distinction we shall hereafter more fully consider. To maintain the arguments advanced by the counsel for the college and sustained by the court, it is necessary to establish the following propositions: (1) That there is a grand division of corporations into two classes, -public and private; (2) That a charter of the latter kind is a grant irrevocable by the Crown or any one else; (3) That for Parliament to have made the changes in a "private" eleemosynary corporation, which the legislature of New Hampshire attempted to make in the charter of Dartmouth College, would have been regarded in England as a breach of the public faith, and could not have been defended on any principle known to English constitutional jurisprudence; and (4) That, therefore, the charter was a contract within the meaning of the Constitution. We take issue upon every one of these propositions. 1 4 Wheat. 596, 597; 5 Webster's Works, 498, 199. We shall endeavor to show that the division of corporations into two classes, public and private, in the sense in which this is done in the Dartmouth College case, is a division entirely unknown to English jurisprudence; that all chartered rights are political privileges, and that Parliament has always claimed, and often exercised, plenary power over them; that it must be assumed that the charter of Dartmouth College was granted on this implied condition, just as fully as if the power of amendment or revocation had been reserved in the charter itself; that, therefore, the act of amendment was no more an impairing of the contract than if a power of amendment had been expressly reserved in the charter; and, lastly, that this power of amendment is not only well recognized, but is eminently useful, proper, and nec essary. None of the great authorities on English law make any division of corporations into public and private. Lord Hale, the very highest authority, divides them, first, into ecclesiastical, and temporal or lay; and then subdivides lay corporations into special, as, for example, churchwardens, who are a special “corporation to take goods or personal things to the use of the parish,” and general, which, he says, " in respect of their quality or condition, are either sole, as the chamberlain of London, or aggregate, as the mayor and commonalty, master and confrères of a hospital." 1 Kyd divides them into corporations sole and corporations aggregate, and into ecclesiastical and lay; and lay corporations again, into eleemosynary and civil. "Civil corporations," says he, "are established for a variety of temporal purposes. Thus a capacity is given to the King. . . . Other civil corporations are established for the purpose of local government, such as the corporations of cities and towns, under the names of mayor and commonalty, bailiffs and burgesses, and other similar denominations; and to this class seem properly to belong the general corporate bodies of the two universities. . . . Other corporations are established for the maintenance and regulation of some particular object of public policy; such as the Corporation of the Trinity House for regulating navigation, the Bank, and the different insurance companies in London; others for the regulation of trade, manufactures, and commerce, such as the East India Company, and the companies of trades in London and other towns; others for the advance 1 Analysis of the Law, 37, 39. ment of science in general, or some particular branches of it, such as the College of Physicians," &c.1 Blackstone makes the division into aggregate and sole, ecclesiastical and lay, civil and eleemosynary. Professor Wooddeson (who, like Kyd, is much relied on by Mr. Webster) does the same.3 Chitty adopts Kyd's classification. Sergeant Stephen makes a similar one. In the case of Sutton's Hospital, Lord Coke, in discussing the subject of corporations, says, they "either stand upon one sole person, as the King, bishop, parson, &c., or aggregate of many, as mayor, commonalty, dean and chapter, &c., and these are in the civil law called Universitas sive collegium." He then proceeds to discuss the essence of corporations, and the powers of the founder of an eleemosynary corporation; but makes no reference to the distinction between public and private corporations. The only English authority we have found in the investigations that we have been able to make, who mentions such a division as has been universally assumed to exist ever since the Dartmouth College case in this country, is Mr. Grant, in his recent work on Corporations, who, after giving the old divisions, says, "Corporations may also be characterized as private or public corporations," but proceeds to say that even a private corporation, “if incorporated by a public act of Parliament, must be regarded as a public corporation;" and then among public corporations classes banks, railways, water and other companies, the Hudson's Bay Company, the universities, and public schools.7 The whole foundation that all the learning and research of the distinguished judges and counsel in the Dartmouth College case could find for this division into public and private corporations, is a rather loosely worded dictum in Lord Holt's famous judgment in Philips v. Bury, arising under the law of visitation of charities, and the meaning of which, we think, has been misunderstood. Chief Justice Marshall did not apparently rely upon any such technical distinction. He argues that the funds enjoyed by Dartmouth College were the endowment of private individuals; that 11 Kyd on Corp. 22, 25, 27. 21 Bl. Com. 469, 470. Chitty on the Prerog. 122, 123. 8 1 Wooddes. Lect. 471 et seq. 5 3 Steph. Com. 120-128. 7 Grant on Corp. 9. 1 Ld. Raym. 5; but best reported in 2 T. R. 352. it was not a political corporation, created to be employed in the administration of government, or in which the State of New Hampshire was alone interested, but "a private eleemosynary institution, endowed with a capacity to take property unconnected with government, whose funds were bestowed by individuals in the faith of the charter." He says, "It is, then, an eleemosynary, and, as far as respects its funds, a private corporation.... It is no more a State instrument than a natural person exercising the same powers would be. If, then, a natural person employed by individuals in the education of youth, or for the government of a seminary in which youth is educated, would not become a public officer, or be considered as a member of the civil government, how is it that this artificial being, created by law for the purpose of being employed by the same individuals for the same purposes, should become a part of the civil government of the country?" 1 This argument, put with all the subtle force for which this eminent judge is celebrated, is the strongest that was advanced in support of the rights of the college; but to our mind it is not sound, as we shall endeavor to show hereafter. Mr. Justice Washington cites Philips v. Bury to the paint, that "there are two kinds of corporations aggregate; namely, such as are for public government, and such as are for private charity; and this is the foundation of his whole argument. Mr. Justice Story classifies corporations as follows: "Another division of corporations is into public and private. Public corporations are generally esteemed such as exist for public political purposes only, such as towns, cities, parishes, and counties; and in many respects they are so, although they involve some private interests; but, strictly speaking, public corporations are such only as are founded by the government for public purposes, where the whole interests belong also to the government. If, therefore, the foundation be private, though under the charter of the government, the corporation is private, however extensive the uses may be to which it is devoted, either by the bounty of the founder, or the nature and objects of the institution. For instance, a bank created by the government for its own uses, whose stock is exclusively owned by the government, is, in the strictest sense, a public corporation. So a hospital created and endowed by the government for general charity. But a bank whose stock is owned by private persons is a private corporation, although it is erected by the government, and its objects and operations 1 4 Wheat. 630, 633, 634, 636, 687. partake of a public nature. The same doctrine may be affirmed of insurance, canal, bridge, and turnpike companies." "A hospital founded by a private benefactor is, in point of law, a private corporation, although dedicated by its charter to general charity. So a college, founded and endowed in the same manner, although, being for the promotion of learning and piety, it may extend its charity to scholars from every class in the community, and thus acquire the character of a public institution. This is the unequivocal doctrine of the authorities; and cannot be shaken but by undermining the most solid foundations of the common law." 1 Considering the vast erudition of Judge Story, and how fond he was of citing authorities, we might well expect here a large collection of them from the Year Books, the Reports, the Institutes, and the later commentators, in support of this "unequivocal doctrine," which "cannot be shaken without undermining the most solid foundations of the common law." The only authority cited, however, is Philips v. Bury. He says again, 66 When, then, the argument assumes that, because the charity is public, the corporation is public, it manifestly confounds the popular with the strictly legal sense of the terms. And if it stopped here, it would not be very material to correct the error. But it is on this foundation that a superstructure is erected, which is to compel a surrender of the cause. When the corporation is said at the bar to be public, it is not merely meant that the whole community may be the proper objects of the bounty, but that the government have the sole right, as trustees of the public interests, to regulate, control, and direct the corporation, and its funds, and its franchises, at its own good will and pleasure. Now, such an authority does not exist in the government, except where the corporation is, in the strictest sense, public; that is, where its whole interests and franchises are the exclusive property and domain of the government itself. If it had been otherwise, courts of law would have been spared many laborious adjudications in respect to eleemosynary corporations, and the visitatorial powers over them, from the time of Lord Holt down to the present day." 2 For all this the learned judge has again no other authority than Philips v. Bury. What, then, is this case of Philips v. Bury that is the foundation of this doctrine? It was a case in which Lord Holt was discussing the subject of visitatorial authority over public charities; and the fact that he has been so misunderstood, shows how |