American Institutions and Their InfluenceTocqueville, Alexis de
History
American Institutions and Their Influence
Tocqueville, Alexis de
Democracy; United States -- Politics and government
[149] It is perfectly clear, says Mr. Story (Commentaries, p. 503, or in
the large edition, § 1379), that any law which enlarges, abridges, or
in any manner changes the intention of the parties, resulting from the
stipulations in the contract, necessarily impairs it. He gives in the
same place a very long and careful definition of what is understood by
a contract in federal jurisprudence. A grant made by the state to a
private individual, and accepted by him, is a contract, and cannot be
revoked by any future law. A charter granted by the state to a company
is a contract, and equally binding to the state as to the grantee. The
clause of the constitution here referred to ensures, therefore, the
existence of a great part of acquired rights, but not of all. Property
may legally be held, though it may not have passed into the possessor's
hands by means of a contract; and its possession is an acquired right,
not guaranteed by the federal constitution.
[150] A remarkable instance of this is given by Mr. Story (p. 508, or in
the large edition, § 1388). "Dartmouth college in New Hampshire had been
founded by a charter granted to certain individuals before the American
revolution, and its trustees formed a corporation under this charter.
The legislature of New Hampshire had, without the consent of this
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 arguments, it was deliberately held by the
supreme court that the provincial charter was a contract within the
meaning of the constitution (art. i, sect. 10), 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."
[151] See chapter vi., on judicial power in America.
[152] See Kent's Commentaries, vol. i., p. 387.
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