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legislature has not this power by any specific grant contained in the constitution; nor as included in its ordinary legislative powers; nor by reason of its succession to the prerogatives of the crown in this particular; on what ground would the authority to pass these acts rest; even if there were no prohibitory clauses in the constitution and the bill of rights?
But there are prohibitions in the constitution and bill of rights of New Hampshire, introduced for the purpose of limiting the legislative power, and protecting the rights and property of the citizens. One prohibition is "that no person shall be deprived of his property, 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."
In the opinion, however, which was given in the court below, it is denied that the trustees under the charter, had any property, immunity, liberty or privilege, in this corporation within the meaning of this prohibition in the bill of rights. It is said that it is a public corporation, and public property. That the trustees have no greater interest in it, than any other individuals. That it is not private property, which they can sell, or transmit to their heirs; and that therefore they have no interest in it. That their office is a public trust like that of the governor, or a judge; and that they have no more concern in the property of the college, than the governor in the property of the state, or than the judges in the fines which they impose on the culprits at their bar. That it is nothing to them, whether their powers shall be extended or lessened; any more than it is to their honors, whether their jurisdiction shall be enlarged or diminished. It is necessary, therefore, to inquire into the true nature and charac ter of the corporation, which was created by the charter of 1769.
There are divers sorts of corporations; and it may be safely aa mitted that the legislature has more power over some than others.* Some corporations are for government and political arrangement; such for example as cities, counties and towns in New England. These may be changed and modified as public convenience may require, due regard being always had to the rights of property. Of such corporations, all who live within the limits are of course obliged to be members, and to submit to the duties which the law imposes on them as such. Other civil corporations are for the advancement of trade and business, such as banks, insurance companies, and the like. These are created not by general law, but usually by grant. Their constitution is special. It is such as the legislature sees fit to give, and the grantees to accept.
The corporation in question is not a civil, although it is a lay corporation. It is an eleemosynary corporation. It is a private charity, originally founded and endowed by an individual, with a charter obtained for it at his request, for the better administration of his charity. "The eleemosynary sort of corporations, are such as are constituted for the perpetual distributions of the free alms or bounty of the founder of them, to such persons as he has directed. Of this are all hospitals for the maintenance of the poor, sick and im potent; and all colleges both in our universities and out of them."† † 1 Black. 471.
* 1 Wooddeson 474. 1 Black. 467.
-Eleemosynary corporations are for the management of private property according to the will of the donors. They are private corporations. A college is as much a private corporation, as an hospital; especially, a college, founded as this was, by private bounty. A college is a charity." The establishment of learning," says lord Hardwicke, "is a charity, and so considered in the statute of Elizabeth. A devise to a college, for their benefit, is a laudable charity, and deserves encouragement."*
The legal signification of a charity is derived chiefly from the statute 43 Eliz. ch. 4. "Those purposes," says sir William Grant, "are considered charitable which that statute enumerates." Colleges are enumerated, as charities in that statute. The government, in these cases, lends its aid to perpetuate the beneficent intention of the donor, by granting a charter, under which his private charity shall continue to be dispensed, after his death. This is done either by incorporating the objects of the charity, as for instance, the scholars in a college, or the poor in an hospital; or by incorporating those who are to be governors, or trustees of the charity. In cases of the first sort the founder is, by the common law, visitor. In early times it became a maxim, that he who gave the property, might regulate it in future. Cujus est dare, ejus est disponere. This right of visitation descended from the founder to his heir, as a right of property, and precisely as his other property went to his heir; and in default of heirs, it went to the king, as all other property goes to the king for the want of heirs.-The right of visitation arises from the property. It grows out of the endowment. The founder may, if he please, part with it, at the time when he establishes the charity, and may vest it in others. Therefore if he chooses that governors, trustees or overseers should be appointed in the charter, he may cause it to be done, and his power of visitation will be transferred to them, instead of descending to his heirs. The persons thus assigned or appointed by the founder will be visitors, with all the powers of the founder, in exclusion of his heir.§ The right of visitation then accrues to them, as a matter of property, by the gift, transfer or appointment of the founder. This is a private right, which they can assert in all legal modes, and in which they have the same protection of the law as in all other rights. As visitors they may make rules, ordinances and statutes, and alter and repeal them, as far as permitted so to do by the charter. Although the charter proceeds from the crown, or the government, it is considered as the will of the donor. It is obtained at his request. He imposes it as the rule which is to prevail in the dispensation of his bounty in all future times. The king, or government, which grants the charter is not thereby the founder, but he who furnishes the funds. The gift of the revenues is the foundation.** The leading case on this subject is Phillips vs. Bury, [reported in 1 Lord Raymond 5.-Comb, 265. -Holt 715.-1 Show. 360.-4 Mod. 106.-Skinn. 447.] This was an ejectment, brought to recover the rectory house, &c. of Exeter College, in Oxford. The question was whether the plaintiff or defendant was legal rector. Exeter College was founded by an in
* 1 Ves. 537.
†9 Ves. Jun. 405.
+1 Wood. 474.
dividual, and incorporated by a charter granted by Queen Elizabeth. The controversy turned upon the power of the visitor, and in the discussion of the cause, the nature of college charters and corporations was very fully considered. Lord Holt's judgment, copied from his own manuscript, is in 2 Term Rep. 346. The following is an extract: "That we may the better apprehend the nature of a visitor, we are to consider, that there are in law two sorts of corporations aggregate: such as are for public government, and such as are for private charity. Those that are for the public government of a town, city, mystery, or the like, being for public advantage, are to be governed according to the laws of the land; if they make any particular private laws and constitutions, the validity and justice of them is examinable in the king's courts; of these there are no particular private founders, and consequently no particular visitor; there are no patrons of these; therefore if no provision be in the charter how the succession shall continue, the law supplieth the defect of that constitution, and saith it shall be by election; as mayor, aldermen, common council, and the like. But private and particular corporations for charity, founded and endowed by private persons, are subject to the private government of those who erect them; and, therefore, if there be no visitor appointed by the founder, the law appoints the founder and his heirs to be visitors, who are to act and proceed according to the particular laws and constitutions assigned them by the founder. It is now admitted on all hands, that the founder is patron, and, as founder, is visitor, if no particular visitor be assigned. So that patronage and visitation are necessary consequents one upon another; for this visitatorial power was not introduced by any canons or constitutions ecclesiastical (as was said by a learned gentleman whom I have in my eye, in his argument of this case:) it is an appointment of law; it ariseth from the property which the founder had in the lands assigned to support the charity; and as he is the author of the charity, the law gives him and his heirs a visitatorial power, that is, an authority to inspect the actions and regulate the behavior of the members that partake of the charity; for it is fit the members that are endowed, and that have the charity bestowed upon them, should not be left to themselves, but pursue the intent and design of him that bestowed it upon them. Now indeed, where the poor, or those that receive the charity, are not incorporated, but there are certain trustees who dispose of the charity, there is no visitor; because the interest of the revenue is not vested in the poor that have the benefit of the charity, but they are subject to the orders and directions of the trustees. But where they who are to enjoy the benefit of the charity are incorporated, there to prevent all perverting of the charity, or to compose differences that may happen among them, there is by law a visitatorial power; and it being a creature of the founder's own, it is reason that he and his heirs should have that power, unless by the founder it is vested in some other. Now there is no manner of difference between a college and an hospital, except only in degree; an hospital is for those that are poor, and mean, and low, and sickly: a college is for another sort of indigent persons; but it hath another intent, to study in, and breed up persons in the world, that have no otherwise to live;
but still it is as much within the reasons as hospitals. And if in an hospital the master and poor are incorporated, it is a college having a common seal to act by, although it hath not the name of a college, (which always supposeth a corporation) because it is of an inferior degree; and in the one case and in the other there must be a visitor, either the founder and his heirs, or one appointed by him; and both are eleemosynary." Lord Holt concludes his whole argument by again repeating, that that college was a private corporation, and that the founder had a right to appoint a visitor, and to give him such power as he saw fit.*
The learned Bishop Stillingfleet's argument in the same cause as a member of the house of lords, when it was there heard, exhibits very clearly the nature of colleges and similar corporations. It is to the following effect. "That this absolute and conclusive power of visitors, is no more than the law hath appointed in other cases, upon commissions of charitable uses: that the common law, and not any ecclesiastical canons, do place the power of visitation in the founder and his heirs, unless he settle it upon others: that although corporations for public government be subject to the courts of Westminster-Hall, which have no particular, or special visitors; yet corporations for charity, founded and endowed by private persons, are subject to the rule and government of those that erect them; but where the persons to whom the charity is given are not incorporated, there is no such visitatorial power, because the interest of the revenue is not invested in them; but where they are, the right of visitation ariseth from the foundation, and the founder may convey it to whom and in what manner he pleases; and the visitor acts as founder, and by the same authority which he had, and consequently is no more accountable than he had been: that the king by his charter can make a society to be incorporated so as to have the rights belonging to persons, as to legal capacities: that colleges, although founded by private persons, are yet incorporated by the king's charter; but although the kings by their charter made the colleges to be such in law, that is, to be legal corporations, yet they left to the particular founders authority to appoint what statutes they thought fit for the regulation of them. And not only the statutes, but the appointment of visitors was left to them, and the manner of government, and the several conditions, on which any persons were to be made or continue partakers of their bounty. These opinions received the sanction of the house of lords, and they seem to be settled and undoubted law. Where there is a charter, vesting proper powers in trustees, or governors, they are visitors; and there is no control in anybody else; except only that the courts of equity or of law will interfere so far as to preserve the revenues and prevent the perversion of the funds and to keep the visitors within their prescribed bounds. "If there be a charter with proper powers, the charity must be regulated in the manner prescribed by the charter. There is no ground for the controlling interposition of the courts of chancery. The interposition of the courts therefore, in those instances in which the charities were founded on charters or by act of parliament, and a visitor, or governor and trustees appointed, must be referred to the general jurisdiction * 1 Lord Ray. 9. † See Appendix No. 3. 1 Burn's Eccles. Law 443.
of the courts in all cases in which a trust conferred appears to have been abused, and not to an original right to direct the management of the charity, or the conduct of the governors or trustees.”*"The original of all visitatorial power is the property of the donor, and the power every one has to dispose, direct and regulate his own property; like the case of patronage; cujus est dare, &c. Therefore, if either the crown or the subject creates an eleemosynary foundation, and vests the charity in the persons who are to receive the benefit of it, since a contest might arise about the government of it, the law allows the founder or his heirs, or the person specially appointed by him to be visitor, to determine concerning his own creature. If the charity is not vested in the persons, who are to partake, but in trustees for their benefit, no visitor can arise by implication, but the trustees have that power."
"There is nothing better established," says lord commissioner Eyre, "than that this court does not entertain a general jurisdiction, or regulate and control charities established by charter. There the establishment is fixed and determined; and the court has no power to vary it. If the governors established for the regulation of it, are not those who have the management of the revenue, this court has no jurisdiction, and if it is ever so much abused as far as it respects the jurisdiction of this court, it is without remedy; but if those established as governors, have also the management of the revenues, this court does assume a jurisdiction of necessity, so far as they are to be considered as trustees of the revenue."
"The foundations of colleges," says lord Mansfield, (6 are to be considered in two views, viz. as they are corporations and as they are eleemosynary. As eleemosynary, they are the creatures of the founder; he may delegate his power, either generally or specially; he may prescribe particular modes and manners, as to the exercise of part of it. If he makes, a general visitor, (as by the general words visitator sit) the person so constituted has all incidental power; but he may be restrained as to particular instances. The founder may appoint a special visitor for a particular purpose and no further. The founder may make a general visitor; and yet appoint an inferior particular power, to be executed without going to the visitor in the first instance." And even if the king be founder, if he grant a charter, incorporating trustees and governors, they are visitors, and the king cannot visit. A subsequent donation, or engrafted fellowship, falls under the same general visitatorial power, if not otherwise specially provided.**
In New England, and perhaps throughout the United States, eleemosynary corporations have been generally established in the latter mode; that is, by incorporating governors, or trustees, and vesting in them the right of visitation. Small variations may have been in some instances adopted; as in the case of Harvard College, where some power of inspection is given to the overseers, but not strictly speaking, a visitatorial power, which still belongs, it is appre* 2 Fonb. 205-6. †1 Ves. 472. Green vs. Rutherforth, per Lord Hardwicke. Attorney General vs. Foundling Hospital, 2 Ves. Junr. 47. Vide also 2 Kyd on Corporations, 195. Cooper's Equity Pleading, 292.
§ St. John's College, Cambridge vs. Todington, 1 Burr. 200.
|| Attorney General vs. Middleton, 2 Ves. 328.
**Green vs. Rutherforth, ubi supra, St. John's College, vs. Todington, ubi supra.