of Dartmouth College.  The charter was accepted and both real and personal property were thereupon conveyed to this corporate body, in trust for educational purposes.  In 1816 the legislature of New Hampshire reorganized the board of trustees against their will.  If the incorporation amounted to a contract, the Court was clear that this statute impaired it; therefore the only really debatable issue was whether the grant of a charter by the king amounted to a contract by him, with his subjects to whom he granted it.  After prolonged consideration Marshall concluded that it did, and I conceive that, in the eye of history, he was right.  Throughout the Middle Ages corporate privileges of all kinds, but especially municipal corporate privileges, had been subjects of purchase and sale, and indeed the mediaeval social system rested on such contracts.  So much was this the case that the right to return members of Parliament from incorporated boroughs was, as Lord Eldon pointed out in the debates on the Reform Bill, as much private property “as any of your lordships’” titles and peerages.

It was here that Marshall faltered.  He felt that the public would not support him if he held that states could not alter town and county charters, so he arbitrarily split corporations in halves, protecting only those which handled exclusively private funds, and abandoning “instruments of government,” as he called them, to the mercy of legislative assemblies.

Toward 1832 it became convenient for middle class Englishmen to confiscate most of the property which the aristocracy had invested in parliamentary boroughs, and this social revolution was effected without straining the judicial system, because of the supremacy of Parliament.  In America, at about the same time, it became, in like manner, convenient to confiscate numerous equally well-vested rights, because, to have compensated the owners would have entailed a considerable sacrifice which neither the public nor the promoters of new enterprises were willing to make.  The same end was reached in America as in England, in spite of Chief Justice Marshall and the Dartmouth College Case, only in America it was attained by a legal somerset which has disordered the course of justice ever since.

In 1697 King William III incorporated Trinity Church in the City of New York, confirming to the society the possession of a parcel of land, adjoining the church, to be used as a churchyard for the burial of the dead.  In 1823 the government of New York prohibited interments within the city limits, thus closing the churchyard for the purposes for which it had been granted.  As compensation was refused, it appeared to be a clear case of confiscation, and Trinity resisted.  In the teeth of recent precedents the Supreme Court of New York decided that, under the Police Power, the legislature of New York might authorize this sort of appropriation of private property for sanitary purposes, without paying the owners for any loss they might thereby sustain.[20]