THE DARTMOUTH COLLEGE CASE

was based upon the grounds that the trustees would be despoiled of their rights without a proper hearing, that the College •was prosperous and no legislative inter ference was needed, that the effect of the act would be to endanger the College funds — by destroying the trust — and that its tendency was to make the College subject to every change of political party. Dr. Wheelock, the deposed President of the College, had maintained, some ten years before, that the charter was not within the power of the legislature to alter or repeal. During the debate in the legislature, Daniel Webster had suggested a move to bring about a compromise, by getting a bill passed to found a new university, but the move did not succeed. The court that first decided the College case found it difficult to understand "how a privilege can be protected from 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. " But, is a special act of legislature, which itself may be a violation of the constitution, for any one of several reasons, to be considered a part of the law of the land recognized by that constitution? Is this the sort of "law of the land" under which the American people suppose themselves to be living? The legis lature that we have supposed to pass the act modifying the tree trust might have tried to justify its proceedings by arguing that the public interest in the object of the trust was greater than that of the trustees, and that the impractical and antiquated methods of the trustees conduced very badly to the end proposed. The case produced a tremendous excite ment in many quarters, for several years, and the opinion of Judge Marshall provoked much criticism, on the score of its tendency to fortify all corporations against control by the states that had created them. Of course, the decision could be authority only for the principles that controlled the decis

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ion, and only to the extent to which the principles were necessarily involved. The fundamental aim of the decision had been to uphold good faith in the dealings of a state with its citizens. There is no doubt of the power of the states to limit the extent of the privileges granted by charter, either through the voluntary action of the legislature making the grant, or by a provision in the funda mental law of the state making such action by the legislature obligatory. Massachusetts has sought to accomplish the object by a middle course, that is, by a general law, making every act of incorporation, after March n, 1831, subject to "amendment, alteration, or repeal, at the pleasure of the general court." Of course, a single legis lature might repeal this very law, but, in the present temper of the community towards corporations, such action is ex tremely unlikely. From what goes before, it should be evident that Marshall's opinion does not deserve the opprobrium cast upon it by the authors quoted, and that it has not been an obstacle in the way of progress. One is tempted, after a perusal of its tem perate language and moderate scope, to conjecture whether the said authors have really read it, or have merely accepted its dangerous character on the faith of others. The opinions may be found in the fourth volume of Wheaton's U. S. Reports, but also in a volume compiled by Timothy Farrar, entitled "Report of the case of the Trustees of Dartmouth College, against William H. Woodward," which includes, also, the arguments and decision in the state court. This volume appeared in 1819, and its four hundred pages are well worth the attention of any American who desires to form a just conception of the spirit of the constitution under which we are living, of which spirit John Marshall is justly regarded as one of the soundest exponents. BOSTON, MASS., APRIL, 1908.