The motives suggested at the bar grow out of the original appointment of the Trustees, which is supposed to have been in a spirit hostile to the genius of our government, and the presumption that, if allowed to continue themselves, they now are, and must remain forever, what they originally were.
Are contracts of this description of a character to excite so little interest that we must exclude them from the provisions of the Constitution as being unworthy of the attention of those who framed the instrument? They determined to establish the school on Connecticut River in the western part of New Hampshire, that situation being supposed favorable for carrying on the original design among the Indians and also for promoting learning among the English, and the proprietors in the neighborhood having made large offers of land on condition that the College should there be placed. The first President was one of the original Trustees, and the charter provides that. Nor is it necessary that the consideration should be a benefit to the grantor.
A man has just as good a right to his wife as to the property acquired under a marriage. In order to get rid of the legal difficulty of these franchises being considered as valuable hereditaments or property, the counsel for the defendant are driven to contend that the corporators or Trustees are mere agents of the corporation, in whom no beneficial interest subsists, and so nothing but a naked power is touched by removing them from the trust, and then to hold the corporation itself a mere ideal being, capable indeed of holding property or franchises, but having no interest in them which can be the subject of contract. Had parliament, immediately after the emanation of this charter and the execution of those conveyances which followed it, annulled the instrument, so that the living donors would have witnessed the disappointment of their hopes, the perfidy of the transaction would have been universally acknowledged. The only effect of the charter was to give permanency to the design by enlarging the sphere of its action and granting a perpetuity of corporate powers and franchises, the better to secure the administration of the benevolent donations. 243, states. And a grant of franchises is not, in point of principle, distinguishable from a grant of any other property. Is this, however, a just and legal view of the. 246, says that the grant of incorporation is a compact between the Crown and a number of persons, the latter of whom undertake, in consideration.
Philips v. Bury, 1 Lord Raym. 371; Attorney General v. Middleton, 2 Ves. The mere possibility of the contrary would not justify a construction of the Constitution which should exclude these contracts from the protection of a provision whose terms comprehend them.
They accepted the charter for the public benefit alone, and there would seem to be no reason why the government, under proper limitations, should not alter or modify such a grant at pleasure. The first are those for the government of a town, city or the like, and, being for public advantage, are.
For this purpose, it matters not how trifling the consideration may be -- a pepper-corn is as good as a thousand dollars. Rex v. St. Catherine's Hall, 4 T.R. Nobody doubts that an advowson is a valuable hereditament, and yet, in fact, it is but a mere trust, or right of nomination to a benefice, which cannot be legally sold to the intended incumbent. Some were probably added by the Crown, with the approbation of Dr. Wheelock. From the fact, then, that a charter of incorporation has been granted, nothing can be inferred which changes the character of the institution or transfers to the government any new power over it.
It is a contract on the faith of which real and personal estate has been conveyed to the corporation. We all know that a power of attorney, forming a part of a security upon the assignment of a chose in action, is not revocable by the grantor. Reasoning a priori, we should believe that learned and intelligent men, selected by its patrons for the government of a literary institution, would select learned and intelligent men for their successors, men as well fitted for the government of a College as those who might be chosen by other means.
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