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 The Dartmouth College 
 Case Decision 
 
 By JOHN Z. WHITE 
 
 With an Introductiuu i»> Wm. Marion Reedy, Editor of 
 the Sr. Louis Mirror • 
 
 Originally published in the St. Louis 
 Mirror, and by permission reprinted 
 in THE PUBLIC of Chic^igo. 
 
 PRICE :" 
 
 The Public Pubiisiiing Company 
 
 First National Bank Building 
 
 CHICAGO 
 
 1906 
 
PRICE OF THIS PAMPHLET; 
 
 Single copy, 5 cents, postpaid. 
 
 One dozen copies, 40 cents, postpaid. 
 
 100 copies $2.00, postpaid. 
 
 Special price for 1.000 or over. 
 
ffs7 
 
 I HE DARTMOUTH COLLEGE CASE L : 
 CISION. 
 
 a Z. White in the St. Louis Mirror of Oct. 4, 190' 
 
 With an Introduction by Wm. Marion Reedy, 
 
 Editor of The Mirror. 
 
 vir. Bryan's proposal of government ownership ' 
 railways; Mr. Folk's proposal of taxing corpora tio 
 upon the actual value of their property, includi 
 franchises, or upon the earning capacity as an es 
 mate of valuation; every proposal to do anythi:'' 
 to a corporation that the corporation doesn't wa 
 done, is met with the proclamation by corporati- 
 lawyers: "You can't do it. Marshall's decision 
 the Dartmouth College case forbids. That decisiL_ 
 holds a charter, or a franchise, is a contract, that 
 no State can impair the obligation of contracts. If 
 the corporations aren't willing to submit to those 
 things you can't do them without impairing the ob- 
 ligation of contracts." This Marshall decision is the 
 backbone, the vitality of all corporate power. It '=' 
 the secret of corporate tyranny over the people, 
 is the buttress of every corporation iniquity whic 
 reformers try to remedy. It is the fetich of all t] 
 courts. It is the gospel of all lawyers. It is sacr 
 because it was formulated by Webster, and e 
 bodied in the law by Marshall and Story. It I 
 been so for eighty-seven years. But now the law 
 laid down by these giants is questioned. Their lo -;■ 
 is attacked. The conclusions of t>e rupr uift Coari 
 that have been held sacred and bii'll^g on all courts 
 forever are denied. They are shc^vn to be absurc. 
 With government ownership and corporation regula- 
 tion the intensely vital issues they fave become, wo 
 shall hear much of the Dartmoutl ^r-r; --«-,. i, n\a,. , 
 
 ivil50925 
 
■bfe'inif'RS un?Gsa'labl*^ &8 Divine Writ. The war of 
 the new democracy, the true leiniblicanlem of this 
 ay and the future, must be aguinst thjs J.' sion, 
 vvhich supports all the corporation iniquities and in- 
 famies. This article by John Z. White sounds the 
 first note of the battle cry to which all American rad- 
 ii als must rally, for the law of the Dartmouth College 
 djcision is the issue upon which both the great par- 
 ties are to split in such way that all those in both 
 .jirties who believe in liberty, in the rule of reason. 
 h. freedom from the tyranny of "artificial persons" 
 will eventually be in one party, and all the benefl- 
 caries of the tyranny and corruption of artificial per- 
 o )n8 will be in another party. Marshall's decision 
 has made for the enslavement of men to corpora- 
 tions. It must be reversed and its logic denounced 
 ;f this government is to fulfil the purposes of its found- 
 ers or realize the hope and faith of mankind that 
 .ound expression in the Declaration and in the Con- 
 stitution. 
 
 EDITOR OF THE MIRROR. 
 
 The people of the United States are much dis 
 turbed by private monopolies. 
 
 Very many, possibly the majority, appear to view 
 the situation as hopeless. 
 
 All manner of remedial measures are proposed. 
 
 Kansas attempted a public oil refinery; various 
 municipal enterprises are under consideration; it is 
 even suggested that the amount of business that one 
 corporation may do shall be limited to a given frac- 
 tion of the total business of the country in any par- 
 ticular line; while a message from the President to 
 Congress informs us that state regulation of railroads 
 ha<5 thiifi far achieved but little. 
 
 ■iiov. tv do it," is still the distinctive charac- 
 . ;ristic o( / rican public life. 
 
Is the President not aware of the tact that early in 
 our history the Supreme Court adopted a policy and 
 established a precedent that deprived the people of 
 their natural remedy for corporate aggression? 
 
 The doctrine affirmed by the decision in the Dart- 
 mouth College case is the source of most of our 
 present industrial abuses. 
 
 Instead of seeking the overthrow of that doctrine, 
 our so-called statesmen seem bent on devising 
 schemes that admit its truth, but attempt to dodge 
 its consequences. 
 
 Daniel Webster conducted the case for the college. 
 John Marshall and Joseph Story delivered the prin- 
 cipal opinions. 
 
 Those opinions were essentially repetitions of 
 Webster's argument. 
 
 On fundamental law Blackstone was favorably 
 quoted. 
 
 The case Is Interesting. Story said so, and in this 
 respect his opinion Is sound. 
 
 As told by Wheaton, the story is as follows: 
 
 In 1754 Dr. Wheelock began teaching the Christian 
 religion to Indian children. He included some white 
 children, and added educational to t^'''^^'^'-'° iTia+rnr-- 
 tion. 
 
 The school was charitable, and coh i\^<tAo.w- ■> v>ci- 
 sought. Finally the favorable attenti<>r; of T^ord Dart- 
 mouth and others in England was secured. 
 
 Originally, Dr. Wheelock intended to bequeath tbt 
 school and its funds to twelve men wHh power to f.l! 
 vacancies, that the trust so formed j3 perpetual. 
 
 The English contributors believed an incorpora:efl 
 organization more desirable, and in 1769 there was 
 secured from the English crown a charter. 
 
 The "Tru8tee€ of Dartmouth Cjbllega ' Is formed 
 
In harmony with the plan of Dr. Wheelock, being 
 composed of twelve men who, with other privileges, 
 have power to fill vacancies, and thus is self perpf ni- 
 ating. 
 
 The charter declares its provisions unalte^ 
 by the crown, and that the twelve trustees may Di 
 rules and regulations for the government of the " 
 lege not repugnant to the laws of Great Britai ^ 
 New Hampshire. 
 
 After the Revolution the State of New Hampshire 
 increased the number of trustees to twenty-one, Kn:\ 
 appointed a board of twenty-five overseers. 
 
 The college corporation resisted this action, and 
 was defeated before the Supreme Court of that Scae. 
 
 The constitution of New Hampshire (art. "; 
 reads: "No person shall be deprived of his propv..^..,, 
 or immunities, or privileges, put out of the protection 
 of the law, or deprived of his life, liberty or estate, 
 but by judgment of his peers, or the law of the land." 
 
 The New Hampshire court said: "That the right 
 to manage the affairs of this college is a privilege 
 within the meaning of the bill of rights, is not to be 
 doubted. But 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 is not very easily understood." 
 
 Upon appeal to the Supreme Court of the United 
 States it was held that the charter from the crown is 
 a contract, and therefore that said laws are null and 
 void, because in violation of the Constitution of the 
 United States, which reads (art. 1, sec. 10): "No 
 State shall pass any law impairing the obligation oT 
 contracts." ^ 
 
 In his contribution to this interesting case Judge 
 Story said: "It is a principle of the common law 
 * • ♦ that the division of an empire works no for- 
 ^oitTi--- o' M 'iously vested rights of property." 
 
 •se the division of empire does not de- 
 
stroy sovereign power — that power passes, it does not 
 disappear. 
 
 The people of England, through their agent. Parlia- 
 ment, as an act of sovereignty, can, could and did re- 
 voke grants made by the crown. All grants issued by 
 the crown were and are subject to this condition. 
 
 Webster admitted this power of Parliament, but 
 urged that "in modern times it has exercised this 
 power very rarely"; that "even in the worst times 
 this power of Parliament to repeal and rescind char- 
 ters has not been exercised"; that "Parliament could 
 not annul charters as a matter of ordinary legislation, 
 but only as an act of omnipotent sovereignty"; that 
 "no legislature in the United States has such power." 
 
 The people of New Hampshire, by their sovereign 
 agency (legislative, executive and judicial), declared 
 these laws in full force and effect. 
 
 When these agree has not sovereignty spoken? 
 What further appeal is possible — save to the mob? 
 
 Therefore, unless the Constitution of the United 
 States delegated to the Federal Government power to 
 annul charters, or prohibited it to the States, it has 
 continued to reside in each State as an inherent sov- 
 ereign right. 
 
 The tenth amendment to the Constitution reads: 
 "The powers not delegated to the United States by 
 the Constitution, nor prohibited by It to the States, 
 are reserved to the States respectively, or to the 
 people." 
 
 There was no pretense that power to annul char- 
 ters was delegated to the United S'ates, but it was 
 held the clause declaring that "No State shall pass 
 any law impairing the obligation of cor -'r'*^ •■ ' ''^ 
 such prohibition to the States. 
 
 In our early history some of the States i.v . ^ .. , 
 altered the basis of debt liquidation. For i.'iis reason 
 this Constitutional prohibition was inserted, and yet 
 this decision pretends that in it is concetti I d\e de- 
 struction of a great sovereign prerogative 
 
And even a hasty perusal of the proceedings of th- 
 Constitutional convention show the subject unde 
 consideration to have been private contracts. 
 
 Even if a grant be absurd or unjust, or secure 
 through corruption, still are the sovereign peopl 
 helpless. According to this decision there is d 
 power in the United States that can annul charters- 
 because of a Constitution ordained "to promote tra 
 quillity," and to secure other "blessings." 
 
 The vital question before the Supreme Court, thei ; 
 fore, was — Is the charter from the crown a contrac 
 
 Chief Justice Marshall disposed of the matter 
 saying: "It can require no argument to prove thai 
 the circumstances of this case constitute a contract." 
 
 On the contrary, very energetic argument is re- 
 quired; much more forceful than any advanced by 
 either counsel or court. 
 
 As a point from which to view the matter in hand, 
 let us first perceive the conditions of equitable social 
 adjustment. 
 
 Blackstone says truly that: "The laws of nature 
 are coeval with mankind and are binding everywhere 
 and at all times," and that "all human enactments 
 derive whatever force and vitality they may have 
 from their conformity to those great originals," and 
 that "any human laws made in contradiction of the 
 laws of nature must eventually fail and become null 
 and void." 
 
 As a condition of nature, then, men live on the 
 earth, and must produce things from its materials in 
 order to continue life. 
 
 Some, if al* e, will rob, or wantonly or carelessly 
 injure others and to prevent such trespass all the 
 r.copl.' (:";. '^y, the majority) within a given terrl- 
 tc <jre ■ • - the police power. 
 
To utilize the earth efficiently it is necessary thai 
 parcels be exclusively occupied by individuals. To 
 this end the whole people ordain a method of holding 
 land. 
 
 In other words, each man has the right to peace- 
 fully occupy and use the earth, and the only known 
 way to maintain this right (security of person and 
 property) is by the exercise of the supreme force. 
 
 This supreme force is sovereignty. Sovereignty is 
 dominion; government its organized agency. 
 
 States are not corporate agencies to be compelled. 
 They are sovereign agencies that command. They 
 bow not to the past; they rule not the future; but 
 they control the present. 
 
 To yield this power in any degree is, in that de- 
 gree, to yield the only power in nature whereby civ- 
 ilized society is possible. 
 
 To argue that sovereignty can, in part, surrender 
 itself, is to argue that a thing can divest itself of its 
 essential characteristics. 
 
 If we argue that sovereignty can partly surrender 
 itself, must we not logically agree that it can do so 
 wholly? 
 
 Sovereignty is the arbitrary will of the majority, 
 and finds justification for its exercise in the fact that 
 nature (i. e. the constitution of man. together with 
 that of his environment) compels the assertion of 
 that will. 
 
 The supreme force is often used to the disadvan- 
 tage of some, but such act is in violation of natural 
 equity and "must eventually become null and void." 
 
 This is nature's social law. "Conformity to this 
 great original" Is the State's duty. 
 
 It will be observed that sovereignty does not origi- 
 nate in the divine right of the King, nor in the legis- 
 lature, nor in the so-called social compact, a or ic the 
 conscious contract that James Wilson tried to de- 
 
diice from the assertion that governments de) 
 "their just powers from the consent of the govern* 
 
 Like the right of each man to peacefully use 
 earth, sovereignty exists of itself. The State is l 
 the agency of sovereignty, organized to conserve v. 
 right to peacefully occupy. 
 
 Plainly, while a State may contract with a citi 
 to build a school house, it cannot contract with ) 
 regarding matters of sovereignty. 
 
 Such act would be an attempt to "agree" that 
 greatest force is not the greatest force — an attei 
 in degree to surrender sovereign agency. 
 
 A charter gives power to the possessors as agai' 
 other citizens, but not as against the State. 
 
 A State therefore may create a corporation ly 
 permitting a group of persons to exercise sovereiri" 
 powers, but such act is to delegate, not to surrender 
 power. It is a license, a permit — not a contract. 
 
 In short, a State may delegate portions of its 
 power, but it can abdicate no part of its sovereign 
 agency. 
 
 Any agent may malie contracts as to matters in 
 the conduct of business proper to his agency, but who 
 will urge that he may contract away any part of the 
 title to tlie enterprise itself? Are we to understand 
 that an agent may absolve himself of his agency, in 
 any degree? 
 
 A corporation holds power only because it is sus- 
 tained by sovereignty. It is not only created by law, 
 but also is sustained by law, and has no being save 
 for law. 
 
 To admit the power to grant charters and deny the 
 power to annul them, is like admitting the existence 
 of one side of an object while disputing the existence 
 of the other side; or like asserting the positive and 
 denying the negative pole of electricity; or like dis- 
 puting the similar conversion of a syllogism. 
 
 '3 Supreme Court was right, when, in the 
 10 
 
•Slaughter House" and other cases, It held that no 
 part of the police power may be "contracted" away. 
 Each citizen must submit to this phase of sovereign 
 authority. 
 
 But is land-holding less a result of sovereignty than 
 police regulations? One may refuse a particular par- 
 cel of land, but cannot refuse all land and live. Either 
 as owner or tenant he must conform to the methods 
 ordained. He may, however, refuse to erect any 
 building. 
 
 Men and land include all things social, and if sov- 
 ereignty be asserted as to these it is complete. 
 
 Webster dimly perceived that to contract, all par- 
 ties must be free to withhold consent, and he said: 
 "What proves all charters of this sort to be contracts 
 is that they must be accepted, to give them force and 
 effect." 
 
 Can we not with equal justice say the relation be- 
 tween master and slave is contractual? 
 
 The master grants permission to attend a picnic. 
 The slave "accepts" — and we have a contract. 
 
 Or, the master commands a like act, and the slave 
 refuses, even preferring death — and no contract re- 
 sults. 
 
 Is not the permission or the command without 
 "force and effect" unless the slave "accepts"? 
 
 "Accept," says the master, "and live a slave, or 
 fail to 'accept' and die a man." 
 
 Corporations live. Men die. Therefore, says the 
 State, according to this decision, accept this charter 
 and live an artificial, immortal person, or fail to ac- 
 cept and die as the God of nature designed i 
 "great originals." 
 
 If we are agreed as to the nature of soverc i ; 
 and its agency, we perceive the validity of the 
 ish rule that the Parliament can annul cha 
 
 11 
 
Also we will be able to note the virtue of the posl 
 tions taken by the court. 
 
 Two principal assumptions were made: 
 
 First, that land grants are irrevocable. 
 
 Second, that corporations are persons. 
 
 Some positions were evaded, but, on the importar . 
 matter of "privileges" there is agreement, as fo 
 lows: 
 
 Blackstone said: "Franchise and liberty are used 
 as synonymous terms, and their definition is, a royal 
 privilege, or branch of the King's prerogative, sub- 
 sisting in the hands of the subject." 
 
 Webster quoted Prof. Sullivan as saying that, "The 
 term liberty signifies the privileges that some of the 
 subjects, whether single persons, or bodies corporate, 
 have above others, by the lawful grant of the King." 
 
 Webster then said: "The plaintiffs have such an 
 interest in this corporation." 
 
 Privileges, then, are partialities, favoritisms, 
 "grants of the King's prerogative," "advantages that 
 some have above others." 
 
 Per contra: They are handicaps, burdens, op- 
 pressions, tyrannies upon those same "others." 
 
 "What is one man's privilege is another man's 
 right," is a wise saying attributed to Andrew Car-* 
 i;egie. 
 
 Of corporations Justice Story said: "An aggre- 
 gate corporation at common law is a collection of in- 
 dividuals united into one collective body, under a 
 special name, and possessing certain immunities, 
 privileges and capacities in its collective character 
 which do not belong to the natural persons com- 
 posing it. * * * It is in short an artificial per- 
 son, existing in contemplation of law, and endowed 
 with certain powers, and franchises, which, though 
 they must be exercised through the medium of its 
 cn^rr i" r^ mbers, are yet considered as subsisting in 
 i..^ •< ation itself, as distinctly as if it were a 
 
 o i I-- lage." 
 
 12 
 
Marshall said of this corporation: "An artificial 
 immortal being was created by tlie crown, capable 
 of receiving and distributing forever, according to 
 the will of the donors, the donations which should 
 be received by it." 
 
 And said Webster: "A grant of corporate powers 
 and privileges is as much a contract as a grant of 
 land." 
 
 "Was it ever imagined," asked Story, "that land 
 voluntarily granted to any person by a State was 
 liable to be resumed at its own good pleasure?" 
 
 The nature of privileges is agreed to; also that 
 corporations hold privileges; also that "a grant of 
 franchises is not in principle distinguishable from a 
 grant of any other property," as asserted by Story. 
 
 But cannot the State take the physical thing, land, 
 under power of eminent domain; and did not John 
 Marshall say, in Providence Bank v. Billings (4 
 Peters, 562), referring to a land grant, that: "This 
 grant is a contract, the object of which is, that the 
 profits issuing from it shall inure to the benefit of 
 the grantee? Yet the power of taxation may be 
 carried so far as to absorb these profits. Does this 
 impair the obligation of contracts? The idea is re- 
 jected by all," etc. 
 
 If the State can take the land under condemna- 
 tion, and its value (profits) by taxation, what becomes 
 of the contention of Webster and Story that land 
 granted may not be resumed? And we are all agreed 
 that land grants and franchises stand or fall together. 
 
 Thus one principal assumption is destroyed. It 
 has no validity in reason, and from a different point 
 of view, as shown in the case cited, even Marshall 
 was able to perceive the truth. 
 
 The second principal assumption wlo . to 
 
 the conclusion, because if the corporation \%ii'. not a 
 "person," there was no party with whom the crown 
 might contract. 
 
 13 
 
It is agreed that a contract is "an agreement be- 
 tween two or more persons to do or not to do a par- 
 ticular afct." 
 
 As a corporation does not exist until tlie charter 
 issues, it would seem that, if the charter is a con- 
 tract, the corporation must be a party to its own 
 creation. 
 
 Perhaps the State creates a corporation, or artifi- 
 cial person, and then contracts with that artificial 
 person to do what it has already done, viz., create a 
 corporation. 
 
 Story dealt with this point in the following manner: 
 
 "From the nature of things, the artificial person 
 called a corporation must be created before it can be 
 capable of taking anything. When, therefore, a char- 
 ter is granted, and it brings the corporation into ex- 
 istence without any act of the natural persons who 
 compose it, and gives such corporation any privileges, 
 franchises, or property, the law deems the corpora- 
 tion to be first brought into existence, and then clothes 
 it with the granted liberties and property. * ♦ * 
 There may be, in intendment of law, a priority of 
 time, even in an instant, for this purpose." 
 
 The corporation must exist before it is "capable of 
 taking anything." 
 
 Certainly; and it must "be" before it can contract 
 to "be." To "be" is one of its liberties, and all of its 
 liberties are in the "contract." 
 
 As Marshall said: "A corporation is an artificial 
 being, invisible, intangible, and, existing only in con- 
 templation of law, it possesses only those properties 
 which the charter expressly confers upon it." 
 
 One of which properties is to "be." "The law 
 deems the corporation to be first brought into ex- 
 istence and then clothes it," etc. Never mind about 
 clothing it. Get the thing born first — as a contract. 
 
 Story said those who oppose his view should "con- 
 sider whether not they do not at the same time 
 ?stab!isr. "^a e grant itself is a nullity for pre- 
 reason." 
 
 14 
 
As a contract, we do establish "precisely" that. 
 + 
 
 Story had yet another line of approach. He said: 
 "An executory contract is one in which a party binds 
 himself to do or not to do a particular thing. An 
 executed contract is one in which the object of the 
 contract is performed." 
 
 The non-professional mind can readily perceive 
 how one may contract to make a pair of boots, or 
 to sell or to deliver a pair, but how can one con- 
 tract to make a pair that is already made? 
 
 Seemingly, in the court's view, a charter is an ex- 
 ecuted contract. That is, "the object of the con- 
 tract is per'formed." But this does not relieve the 
 situation. For, even though the making and the 
 performance of the contract be simultaneous, there 
 can be no contract without parties, and the corpora- 
 tion or artificial person does not exist until the char- 
 ter issues. 
 
 Not only is the "person" artificial but the whole 
 concept is artificial and woodeny and bears no 
 semblance to those "great originals" to which Black- 
 stone rightly declared all permanent law must con- 
 form. 
 
 One feels impelled to warn the profane reader that 
 this is not a discussion of farce-comedy. 
 
 The facts in the case appear simple enough, be- 
 fore Webster indulged in intellectual gymnastics, or 
 the court applied its alchemy. 
 
 It seems that a group of persons applied for, i 
 received, "an advantage above others." a "branch 
 the King's prerogative," or a privilege sustained 
 soverf';^n power, --that is, a charter. 
 
 Tlie grant being secnred, the group thereby '"-; 
 eomes an organization of persons upon -whom ..• - 
 
If the corporatloD is an artificial person "in cc. 
 templatlon of law," it can very bluntly be assert 
 that the law assumes as true what is not true, but 
 absurd. 
 
 When told that in the eye of the law his wife 
 supposed to act under his direction, Mr. Bumble • 
 plied: "If the law supposes that, the law is a ass- ■ 
 idiot. If that's the eye of the law, the law's a ba. l 
 elor; aud the worst I wish the law is, that his eye n 
 be opened by experience — by experience." 
 
 We are getting experience, and it is to be hop.vi 
 our eyes will open. Mr. Bumble's estimate o't t:i. 
 law was, in some respects, extremely accurate. 
 
 The second assumption seems untenable, and witn 
 its dismissal the case vanishes. 
 
 A corporation is an organization — not an organlFm, 
 and certainly not a person. 
 
 Its charter is but the expression of the grant oi 
 authority conferred. If the State has power to con- 
 fer, it also has power to withhold or withdraw — that 
 is, to annul. Unless, of course, there is some power 
 in government greater than sovereign agency. 
 
 Story suggested that power to annul charters 
 might be reserved by the legislature, either in each 
 charter or u^ general law. 
 
 Such reservation surely cannot give to a legisla- 
 ture a power not already possessed. Otherwise an 
 act may not only tend, as Webster feared, but easily 
 secure, "the union of all powers in the legislature." 
 beiut.. ^ji(3 jf the legislature cannot so add to its own 
 tem^ powers, but can by act secure the reservation, does 
 ^'' it not follow that the reservation exists regardless 
 of the act? 
 Do - ?. 'rgislature possess power through contract 
 aiviciual citizens, or is its power (Iri?''''nJ-<^r ! ^ 
 .be sovereign people? 
 
 16 
 
After agreeing to the nature of privilege, and 
 listening to the definition of corporations, and ob- 
 serving Justice Story's assurance that these grants 
 imply on the part of the grantor "a contract not to 
 reassert the right" (although it is agreed that Par- 
 liament can annul), and being told that "the only 
 affect of the charter was to give permanency to the 
 design;" in fact, being duly impressed with the 
 solemnity of the whole proceeding (and why should 
 aot artificial, immortal beings be viewed with awe?), 
 we are suddenly startled by Marshall's assertion that 
 'From the fact that a charter of incorporation has 
 3een issued nothing can be inferred which changes 
 :he character of the institution or transfers to the 
 government any new power over it." 
 
 If this assertion is true, why do men seek char- 
 ;ers? 
 
 If the character of the institution was not changed, 
 what contract was made? 
 
 And what did Story mean in saying that a cor- 
 poration possesses "certain immunities, privileges 
 and capacities in its collective character which do 
 not belong to the natural persons composing it"? 
 
 We must infer a change in the character of the 
 institution, and that change Is the possession of 
 political powers not before held. 
 
 It is these political powers that Story said "do not 
 belong to the natural persons composing" the cor- 
 poration. 
 
 These "branches of the King's prerogative" are 
 political because the whole ol the Kir^*.-: preroga- 
 tives are political. The State is political. It has 
 political power only to give. 
 
 It was to this sort of power that 
 when, after describing privilege, he ioclared that iu* 
 clients "have such an Interest in this case: '* 
 
 The character of the Institution was changed by 
 the exchange of a private for a public administrator. 
 All corporations are public for the reason that all 
 
 17 
 
their powers are derived from the State. Corporate 
 powers are part of the State — (sovereign powers 
 subsisting in the hands of the citizen, — to use our 
 terms in place of the British for'^i). 
 
 On the same point Mr. Hopkinson, of counsel for 
 the college, asked: "If the property of this corpora- 
 tion be public property, when did it become so? It 
 was once private property; when was it surren- 
 dered to the public?" 
 
 The property was not surrendered to the public, 
 but its administration was given to the public by 
 the voluntary act of its owners. 
 
 The owners preferred to entrust it to a publicly 
 established agency (viz., the corporation), rather 
 than to leave it by bequest to private parties, in ac- 
 cord with the original intention of Dr. Wheelock. 
 
 Distinguishing between public and private cor- 
 porations and indicating that the physical property 
 with which a college corporation is endowed is called 
 its "foundation," Story said: "If the foundation be 
 private, though under the charter oT 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." 
 
 And in this class of private corporations he places 
 hospitals, banks, canals, insurance, turnpike and 
 bHdge companies. 
 
 This conclusion gives to a corporation the char- 
 acter of its physical property, while common sense 
 asserts Its character to be that of the source of Its 
 
 It. Is a corporation because the State created It 
 
 *t- not TTcc in harmony with right reason to say, 
 
 "* be from the public, the corporation is 
 
 vr slight be the uses to which its pollt- 
 
 <3 devoted"? 
 
 18 
 
J e privileges of a corporation spring trom its 
 on, or froT^'ne State? 
 
 wer "to be" is of the State; its permanence, 
 lortality," is of the same source. 
 How can we say that the privileges of a corpora- 
 tion fi^ sovereign powers in the hands of a citizen. 
 ■ ' le same time say the corporation is private? 
 
 ssify corporations as civil and eleemosynary, 
 blic and private, is to divide them according 
 uses, and is entirely proper as an aid to 
 Qt identification; but to make this classiflca- 
 basis of philosophical distinction is merest 
 
 . Dration is a group of persons holding "priv- 
 ileges," and the nature of privileges is agreed to. 
 Whether the corporation is used to conduct a Sun- 
 day school, a great city, a railroad, or a manufac- 
 turing plant is immaterial. 
 
 A gun, whether a toy pistol or the most improved 
 rifle, is still a gun; and whether in the hands of an 
 honest man defending his home, or in the hands of 
 a highwayman attacking his victim, it is still a gun. 
 
 A corporation holds political power. Its power 
 to "be" is political. And all the fancy balancing in- 
 dulged by counsel and court operates to conceal, 
 not to destroy, this truth. 
 
 The New Hampshire court, as before "tated, said 
 it is diflScult to understand "how a p; ivileg: car 
 be protected from the law of the land b> a clause in 
 the Constitution declaring that it shall not be taken 
 away but by the law of the land." 
 
 In reply Webster quoted Blackstone , s Toilows; 
 "And first it (i. e., the law), is a rule; not r. transient 
 or sudden order from a superior, to or c learning a 
 particular person; but something permar'e.nr or uni- 
 versal. Therefore a particular act of the legislature 
 to confiscate the goods of Titus or to attaint him O'" 
 
 19 
 
high treason does not enter into the idea of a munici- 
 pal law; for the operation of this act is spent on 
 Titus, and has no relation to the community in gen- 
 eral; it is rather a sentence than a law." 
 
 Webster added, "Everything that may pass under 
 the form of an enactment is not therefore to be con- 
 sidered the law of the land. Such construction 
 would render constitutional provisions of highest im- 
 portance inoperative and void." 
 
 All of which is true, but the case in hand is an in- 
 stance of the "universal and permanent" rule that 
 sovereignty can annul charters. 
 
 Webster seems to have dodged the issue, or 
 begged the question; which reminds us that of one 
 of counsel's arguments Story said, "The fallacy of 
 the argument consists in assuming the very ground 
 in controversy." 
 
 This is precisely the method of the court through- 
 out most of this case. 
 
 Many eminent authorities, voicing sound doctrines 
 as to the proper relation between sovereignty and the 
 person, were quoted — and then the doctrines were 
 applied to corporations. 
 
 Herein lies the plaintiff's need for asserting cor- 
 porations to be persons — and herein is the lameness 
 of this absurd decision. 
 
 in conclusion, sovereignty is not a subject of con- 
 tract. 
 
 Nature forces the majority to be sovereign. Sov- 
 ereignty of necessity relates to persons and to land. 
 
 These two exist of themselves. All else in the 
 social state is subsidiary. 
 
 Tht v/holG "String of sophistries indulged by the 
 court w^rc a? the end that these simple truths be 
 :-'ubmerge(!. 
 
 ir ^ these simple truths are clearly ap- 
 
 20 
 
preh^nded that soc il freedom is possible. Marsliall 
 WAS a Tory. His .^hole career proves it. A Tory 
 '■- not n friend ot freedom. 
 
 liie trulii is tiiat power to regulate corporations 
 or annul their charters inheres in each State — save 
 for this precedent. 
 
 Deprived of this power by this invasive rule, the 
 people flounder on, rapidly losing faith in the great 
 American experiment. 
 
 Does anyone doubt that our Western States would 
 long since have regulated railroads and other cor- 
 porations in the interest of common honesty if the 
 group of attorneys called the Supreme Court did not 
 bar the way? 
 
 The people think they live under the Constitution, 
 m fact, they live under Marshall's decisions. 
 
 If it were not for the slavish submission of the 
 present court to the name of Marshall, would we 
 need to be outraged by the spectacle of sovereign 
 States like Idaho, Montana and Colorado in the West, 
 and Pennsylvania and New Jersey in the East, lying 
 bound at the feet of a lot of soulless corporate 
 pirates, as reckless of human rights as any horde 
 that ever sailed the Spanish Main? 
 
 Let the court confine itself to its own affairs, and 
 leave the States to attend to theirs. 
 
 The decision was in degree destructive of the 
 rights oT the States (which in itself is of no mo- 
 ment), and thereby of the people's rights (which is 
 of great moment). 
 
 It was not adjudication. It ■^''? nsiirnation. Thus 
 far it has been endured. 
 
 One judge dissented. Let u : r/eve his name — 
 it was Duvall. 
 
 21 
 
A PRESENT FOR ilKU 
 
 Whether You've Got Her, or 
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