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grant, and taking its benefits. This, it must be confessed, is rather a summary mode of settling a question of constitutional right. Not only are new trustees forced into the corporation, but new trusts and uses are created. The college is turned into a university. Power is given to create new colleges, and, to authorise any diversion of the funds, which may be agreeable to the new boards, sufficient latitude is given by the undefined power of establishing an Institute. To these new colleges, and this Institute, the funds contributed by the founder, Dr. Wheelock, and by the original donors, the Earl of Dartmouth and others, are to be applied, in plain and manifest disregard of the uses to which they were given.
The president, one of the old trustees, had a right to his office, salary, and emoluments, subject to the twelve trustees alone. His title to these is now changed, and he is made accountable to new masters. So also all the professors and tutors. If the legislature can at pleasure make these alterations and changes, in the rights and privileges of the plaintiffs, it may, with equal propriety, abolish these rights and privileges altogether. The same power which can do any part of this work, can accomplish the whole. And indeed, the argument on which these acts have been hitherto defended, goes altogether on the ground, that this is such a corporation as the legislature may abolish at pleasure; and that its members have no rights, liberties, franchises, property or privileges, which the legislature may not revoke, annul, alienate or transfer to others whenever it sees fit.
It will be contended by the plaintiffs that these acts are not valid and binding on them, without their assent. 1. Because they are against common right, and the constitution of New Hampshire. 2. Because they are repugnant to the constitution of the United States.
I am aware of the limits which bound the jurisdiction of the court in this case, and that on this record nothing can be decided, but the single question, whether these acts are repugnant to the constitution of the United States. Yet it may assist in forming an opinion of their true nature and character, to compare them with these fundamental principles, introduced into the state governments for the purpose of limiting the exercise of the legislative power, and which the constitution of New Hampshire expresses with great fulness and accuracy.
It is not too much to assert, that the legislature of New Hampshire would not have been competent to pass the acts in question, and to make them binding on the plaintiffs without their assent, even if there had been, in the constitution of New Hampshire, or of the United States, no special restriction on their power; because these acts are not the exercise of a power properly legislative.* Their object and effect is to take away, from one, rights, property, and franchises, and to grant them to another. This is not the exercise of a legislative power. To justify the taking away of vested rights, there must be a forfeiture; to adjudge upon and declare which, is the proper province of the judiciary. Attainder and confiscation are acts of sovereign power; not acts of legislation. The British parliament, among other unlimited powers, claims that of altering and vacating charters; not as an act of ordinary legislation, but of un
* Calder et ux. v. Bull 3d Dallas 386.
controlled authority. It is theoretically omnipotent. Yet, in modern times, it has attempted the exercise of this power very rarely. In a celebrated instance, those who asserted this power in parliament, vindicated its exercise only in a case, in which it could be shown, 1st, That the charter in question was a charter of political power; 2. That there was a great and overruling state necessity, justifying the violation of the charter. 3. That the charter had been abused, and justly forfeited.* The bill affecting this charter did. not pass. Its history is well known. The act which afterwards did pass, passed with the assent of the corporation. Even in the worst times this power of parliament to repeal and rescind charters, has not often been exercised. The illegal proceedings in the reign of Charles II. were under color of law. Judgments of forfeiture were obtained in the courts. Such was the case of the quo warranto against the city of London, and the proceedings by which the charter of Massachusetts was vacated.
The legislature of New Hampshire has no more power over the rights of the plaintiffs than existed, somewhere, in some department of government, before the revolution. The British parliament could not have annulled or revoked this grant as an act of ordinary legislation. If it had done it at all, it could only have been in virtue of that sovereign power, called omnipotent, which does not belong to any legislature in the United States. The legislature of New Hampshire has the same power over this charter, which belonged to the king, who granted it; and no more. By the law of England the power to create corporations is a part of the royal prerogative.† By the revolution, this power may be considered as having devolved on the legislature of the state, and it has accordingly been exercised by the legislature. But the king cannot abolish a corporation, or new model it, or alter its powers without its assent. This is the acknowledged and well known doctrine of the common law. "Whatever might have been the notion in former times," says lord Mansfield, "it is most certain now, that the corporations of the universities are lay corporations; and that the crown cannot take away from them any rights that have been formerly subsisting in them under old charters or prescriptive usage." After forfeiture duly found, the king may regrant the franchises; but a grant of franchises already granted, and of which no forfeiture has been found, is void.
Corporate franchises can only be forfeited by trial and judgment.§ In case of a new charter or grant to an existing corporation, it may accept or reject it as it pleases. It may accept such part of the grant as it chooses, and reject the rest.** In the very nature of things, a charter cannot be forced upon any body. No one can be compelled to accept a grant; and without acceptance, the grant is necessarily void. It cannot be pretended that the legislature, as successor to the king in this part of his prerogative, has any power to revoke, vacate or alter this charter. If, therefore, the
Annual Regr. 1784, p. 160.-Parlia. Regr. 1783.-Mr. Burke's Speech on Mr. Fox's E. I. Bill. Burke's Works-2 Vol. p. 414. 417. 467. 468. 486.
+1 Black. 472, 473. +3 Burr. 1656. §3 T. R. 244. King vs. Pasmore.
King vs. Vice Chancellor of Cambridge, 3. Burr. 1656. 3 T. R. 240.-Lord Kenyon. ** Idem 1661, and King vs. Pasmore, ubi supra.
++ Ellis vs. Marshall, 2 Mass. Rep. 277. 1 Kyd. on corporations 65.-6.
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 Wooddeson 474, 1 Black. 467. +1 Black. 471.
-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. 66 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.
2 Term Rep. 350-1.
**1 Black. 480.
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;