ght 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]

The court thus simply dispensed the legislature from obedience to the
law, saying in effect, "although the Constitution forbids impairing
contracts, and although this is a contract which you have impaired, yet,
in our discretion, we suspend the operation of the Constitution, in this
instance, by calling your act an exercise of a po