brought to view in the historical part of this report; and let
it not be supposed that an intent implied from facts, is nec-
essarily attended with any less degree of certainty than if
expressed in words. Every jurist knows the weight that at-
taches to testimony furnished by facts. It sometimes out-
weights the testimony of living witnesses. Cases involving
the lives and liberty of men are daily decided upon a sound
and discriminating interpretation of the language of facts.

We affirm, then, that the facts which have been brought
to view, conclusively show that the founders of Baylor Univer-
sity, not only intended to establish an institution of learning,
but an institution of learning under the supervision and con-
trol of Baptists, and one which should remain under such
supervision and control so long as it maintained a corporate
existence.

Your committee would call particular attention to the
argument upon this point, more especially for the reason that
the mind of the denomination has been unsettled, upon the
ground that Baylor University is in no proper sense a denomi-
national institution, and, therefore, not worthy of its confi-
dence and support.

A writer in the Texas Baptist of April 22d, 1858, uses
the following language :

"If we send agents to collect donations for Baylor Uni-
versity calling it our College — the Institution of the denomi-
nation — some good brother will give a large donation or



190 The Life a>d AVritixgs of

bequest to the Baylor University. His heirs will presently
claim this donation or bequest, on the ground that the deceased
supposed the University to belong to the denomination; but
that the property of Baylor University belongs to the Trustees
or to the State of Texas, and that the denomination has no
power over it ; that, therefore, the Trustees have raised money
on false pretenses, (?) and consequently the bequest should
be void and thirty thousand dollars should revert to the lawful
heirs.'"

Xotwithstanding the confusion of ideas that is manifest
in this extract, it had, in connection with other production-^
from the same pen, no little influence in unsettling the mind
of the denomination, in regard to the real condition of the In-
stitution and its real relation to the denomination; a fact,
however, not surprising when we reflect that the subject
treated of lay beyond the usual topics of investigation, and
was one upon which most men had bestowed but little reflec-
tion.

What, then, are the facts which authorize us to infer, a
priori, and with a certainty that excludes every reasonable
doubt, that it was the intention of the founders of Baylor
University, to establish an institution of learning that should
be and should forever remain under the supervision and con-
trol of Baptists ?

First — The founders themselves, were Baptists, acting
together in an organization, styled ^'The Texas Baptist Educa-
tion Society," the object of wdiich was declared by the Con-
stitution to be, the education of young men for the Gospel
ministry.

Among these founders, a ruling spirit, the head and right
arm, was Wm. M. Tryon, than wdiom never lived one more
devoted to the vindication of those principles that distinguish
the Baptists as a denomination. These men, thus organized,
and for such an object resolve to establish an institution of
learning. !N^ow, they either intended to establish a Baptist
institution or they did not. If they did not, one of two things
is true. They either intended to establish an institution that
should be under the control of some other denomination than
the Baptists, or they Intended to establish nn iu'^titution wnth-



Dk. Rufus C. Burleson. 191

out any denomination ai or religion?, cliaracter. That Baptists
should attempt to establish an institution of learning to be
controlled by any other denomination than their own, or that
men of piety should wish to establish one from which all re-
ligious influences should be removed, are suppositions too
irrational to be for a moment entertained. There remains,
then, but the conclusion, that their intention was to establish
a Baptist institution. But an intention creates nothing —
action is necessary; if, then, the acts of the founders harmonize
with this supposed intention — if the measure they adopt are
calculated to realize it — the character of their intention is es-
tablished beyond the possibility of a doubt.

The resolution being formed to establish an institution of
learning, the Education Society appointed a committee to
memorialize Congress for a charter. This committee consisted
of J. G. Thomas, R. E. B. Baylor and Wm. M. Tryon. It ia
their right, as founders, to name those who shall take its inter-
ests in charge, hold its property and manage its internal affairs.
They name fifteen persons, a large majority of whom are
Baptists. They do not stop here. Vacancies must, in the
nature of things, occur in this Board of Supervisors. They
request Congress to reserve unto a body, exclusively Baptist,
viz : The Executive Committee of the Education Society, the
sole power of filling all such vacancies.

Here, then, is an institution of learning, brought into ex-
istence by Baptists, placed under the supervision and control
of Baptists, with a provision for the perpetuity of this same
supervision and control unaltered in its character.

This is enough to establish the intentions of the founders
and to fix the denominational character of the Institution. But
this is not oil — Baylor University was established in Texas in
the infancy of society. After the lapse of years and the de-
nomination had increased in numbers and influence, the Bap-
tist State Convention of Texas was formed. The Education
Society again manifests the character of its intentions, the
steadfastness of its purpose and the purity of its motives. She
desires to link her yet tender offspring with a bond of mutual
dependence and support still more closely to the denomination.
She sees in this Convention a fitting depository of an important



192 The Life axd Writings of

trust. It is an organization the most general in its character
that our church polity admits of, and is co-extensive with the
State itself. There is an assurance of her ability to exercise
this trust in perpetuity, and her denominational character is
a sufficient guarantee that she will so administer it as to pre-
serve the denominational character of the Institution. The
Education Society confers with the Convention — their views
and wishes harmonize — the Legislature is memorialized, and
an amendment to the charter is procured, removing the power
of filling vacancies from the Executive Committee of the
Texas Baptist Education Society and vesting it forever in the
Convention. The amendment might have been rejected by
the Board of Trustees. It was their legal right to do so if they
saw proper* but they promptly accepted it, and manifested
their desire, also, to be drawn into as intimate a connection
with the denomination as possible.

Your committee then submit, that Baylor University,
having been founded by Baptists, with the intention of main-
taining it under the control of Baptists, being now under the
control of Baptists, and having the power of- filling all vacan-
cies in the Board of Trustees, vested in the Baptist State Con-
vention of Texas, is strictly and essentially a denominational
institution. Your committee are unable to conceive of any
possible conditions that would render it more so. Baptists
planted it, and Baptists have nurtured it, prayed for it, labored
for it, given to it their influence and their means; and Bap-
tists have reaped and are reaping the fruit of their toils and
self-sacrificing labors, in the education of their sons and
daughters, in its high character as an institution of learning,
and in the bright prospect that seems opening before it.

Much of the discussion that has arisen respecting the
relations of Baylor University to the denomination, has been
founded in an entire misapprehension of what constitutes a
denominational institution. It is not essential to a Baptist
institution that the title to its property be vested in the de-
nomination; this cannot be done without incorporating the de-
nomination — an act without a precedent and utterly im-
practicable, l^or is it necessary that the denomination should
have the power of directing the management of its affairs.



Dk. Eufus C. Burleson. 193

This power resides, in all sucli corporations, in its Board of
Trustees, as an inherent right, and cannot be removed even by
statute.

The denominational character of an institution is not in
any sense determined by the tenure by which its property is
held. In all private eleemosynary corporations the property is
vested in a Board of Trustees, who hold it for the purposes
specified in the charter, and from which purposes they have no
power to divert it — while the denominational character of the
institution is determined by the denominational character of
those who gave it birth, reared it, nurtured it, control it and
reap its benefits. '

Baylor University as a Corporation.

Your committee have thus far considered Baylor Univer-
sity only in a denominational point of view, and they think
they have shown that, in this respect, it is entitled to the con-
fidence and worthy of the continued support of the denomina-
tion.

We now proceed to consider it from a legal point of view,
as a corporation or body politic, in order to ascertain its char-
acter as a depository of trusts, and the grounds there are for
believing that the benefactions of its friends will be applied
to and held in perpetuity for the objects which the Institution
was established to promote.

The nature of corporations, their powers and liabilities,
will of course be examined only so far as is required by the
objects we have in view.

In order not to extend this report to too great a length,
we shall give authorities upon the most important points only;
remarking, however, that the authority for any legal doctrine
or principle we may advance, will be furnished to any one who
feels an interest in verifying it.

"A corporation is a franchise possessed by one or more
individuals, who subsist as a body politic under a special
denomination; and are vested by the policy of law, with the
capacity of perpetual succession, and of acting in several re-
spects, however numerous the association may be, as a single
individual. (II. Kent, p. 267.)



194 The Life axd Wkitixgs of

"An eleemosynary corporation is a priv^ate cliarity con-
stituted for' the perpetual distribution of the bounty of the
founder. In this class are included colleges and academies
established for the promotion of learning, and endowed with
property by public and private donations." (II. Kent, p. 274.)

A corporation being an artificial person possesses no
powers but such as are bestowed by legislative enactment,
excepting those that are necessary to the exercise of such as
are expressed in the charter. (II. Kent, p. 277.)

The charter of a corporation is, in the \aew of the law,
a contract between the government and the persons named
therein; wherein, in consideration of certain services proposed
to be rendered to the public, the government grants to them
certain powers, privileges and immunities; and upon the ac-
ceptance of the charter by the persons proposed to be in-
corporated, it is an executed contract, and the government has
over it no further control. (Angell & Ames on Corp. Sec. 31.)
She cannot revoke or annul, alter or amend without the con-
sent of the corporation, unless she has expressly reserved to
herself this right in the charter, or unless the Constitution of
the State confers it. (The Constitution of Texas does confer
this right but not in reference to corporations created under the
government of the Kepublic. They remain independent of
any arbitrary legislative control.) In case of a failure of con-
sideration, if the corporation does not render to the public the
services proposed, or transcends or misuses her powers, or fails
to use them for the purposes designated, the State has no rem-
edy, until she has entered the courts of law as a party to a suit,
established the facts and procured a judgment. Then and not
till then can she revoke the charter and can the powers granted
revert to the government. (II. Kent, p. 305.)

In the case of eleemosynary corporations, the founders
of the trust are assumed to have the right to direct its dis-
posal. The legal maxim, is, cujus est dare, ejus est disponere.
The trustees are considered as the assignees of this right, and
to stand in all respects in the place of the assignors. They are
therefore bound to execute the intentions of the founders and
are responsible for the failure to discharge the obligations of
their trust. As a necessary consequence they have the sole



Dk. Kufus C. Burlesox.



195




DIFFERENT PORTRAITS OF DR. BURLESON.



196 The Life akd Writings of

right to the management of the funds and revenues of the
trust, subject to the jurisdiction of Courts of Chancery. Story,
in his Equity Jurisprudence (Sec. 1191) says: "Where a
charity is definite in its object and lawful in its creation, and
it is to be executed and regulated by trustees, whether they are
private individuals or a corporation, then the administration
properly belongs to such trustees. In all such cases, however,
if there be any abuse or misuse of the funds by the trustees, the
Court of Chancery will interpose at the instance of the At-
torney General or the parties in interest, to correct such abuse
or misuse of the funds."

Again the same author says: (Sec. 1287) "Courts of
Equity will not only hold Trustees responsible for any misap-
plication of trust property, and any gross negligence or ^villf ul
departure from their duty in the management of it, but they
will go further and in cases requiring such a remedy, they will
remove the old Trustees, and substitute new ones. Indeed the
appointment of new Trustees is an ordinary remedy enforced
by Courts of Equity, in all cases where there is a failure of
suitable Trustees to perform the trust, either from accident,
or from the refusal of the old Trustees to act; or from their
original or supervenient incapacity to act, or from any other
cause."

Kent, vol. II. p. 351, says: "It is well understood that
the Court of Chancery has a jurisdiction over charitable-cor-
porations for breaches of trust.

' In eleemosynary corporations the visatorial power hith-
erto incidentally refeiTcd to, is a power of so much import-
ance as to require special attention.

This power implies the exercise of that supervision and
control over the disposition of the funds and revenues, and
over all the internal affairs of the corporation that the found-
ers themselves would employ, were they in person administer-
ing their own charity.

This power as has been already said, resides in the Board
of Trustees. Kent, vol. II. p. 148, says: "Where Governors
or Trustees are appointed by charter according to the will of
the founder, to manage a charity, as is usually the case in col-
leges, the visitorial power is deemed to belong to the Trustees



De. Kufus C. Burleson. 197

in their corporate character." And again : "Assuming then,
as is almost universally the fact in this country, that the power
of visitation of all our public charitable corporations is invested
by the founders and donors of the charity, and by the acts of
incorporation, in the governors or trustees, who are the assig-
nees of the rights of the foimders, and stand in their places,
it follows that the Trustees of a college may exercise their
\dsitorial powers in sound discretion, and without being liable
to any supervision and control, so far as respects the govern-
ment"^ and discipline of the institution, and so far as they ex-
ercise their powers in good faith, and within the limits of the
charter. They may annul and repeal the by-laws and ordi-
nances of the corporation, remove its officers, correct abuses,
and generally superintend the management of the trust."

We have now examined the nature, powers, liabilities and
immunities of corporations sufficiently for our purpose.

The principles we have brought to view will enable us to
examine the charter of Baylor University with a view to deter-
mine wdi ether the corporation it creates, is a safe depository
of trusts for the support and maintenance of an institution
of learning.

The only articles in the charter that relate to the power
to take, to hold and to use funds in trust, are the fourth and
sixth — w^e give them entire :

Article 4.— "Be it further enacted, that the trustees
aforesaid, be, and they are hereby constituted a body politic
and corporate, in deed and in law, by the name of the President
and Trustees of Baylor University; and by that name they and
their successors shall and may have succession, and be able
and capable in law to have and receive and enjoy to them and
their successors, lands, tenements and hereditaments of any
kinds, in fee or for life, or for years, and personal property of
any kind whatever; and also all sums of money which may be
given, granted or bequeathed to them for the purpose of pro-
moting the interest of the TJniversitij. Provided, the amount
of property owned by said corporation shall not at any one
time exceed One Hundred Thousand dollars, over and above
the buildings, library and apparatus necessary to the institu-
tion."



198 The Life and Writings of

By this article it will be seen that all the estate, real and
personal, ^Yhich the Trustees are empowered to have and re-
ceive and enjoy, is to be had and received and enjoyed, for
the purpose of promoting the interest of the University.

Article 6.— ^'Be it further enacted, that the Trustees of
said University shall and may have a common seal for the busi-
ness of themselves and their successors, with liberty to change
and alter the same from time to time, as they shall think
proper; and that in their aforesaid name, they and their suc-
cessors shall and may be able to sue and be sued, plead and be
impleaded, answer and be answered, defend and be defended
in all courts of law or equity in this republic; and to grant,
bargain and sell or assign any lands, tenements, goods or chat-
tels that may belong to said University; to construct all neces-
sary buildings for the said institution; to establish a prepar-
atory department and a female department, and such other de-
pendent institutions as they shall deem necessary; to have the
management of the finances, the privileges of electing their
ovn o^'-ers. of appointing all necessary committees, and to
act and do all things whatsoever for the henefit of said institu-
tion, in as ample a manner as any person or body politic oi*
corporate can or may do by law."

By this article it appears that when they grant, bargain
and sell or assign any lands, tenements, goods or chattels that
may belong to the University, it must be done for the henefit of
the University.

In connection with these powers, and the limitations and
restrictions with which they are inseparably connected, take
the language of Kent : "It is well understood that the court of
chancery has a jurisdiction over charitable corporations for
breaches of trust," and determine whether the founders, pat-
rons and donors of Baylor University have not the most ample
security for the faithful administration of their benefactions,

Objectioxs Considered and Answered.

"VVe now pass to consider briefly the arguments that have
tended to unsettle the mind of the denomination in regard to
the tenure by which the Trust funds of Baylor University are
held. Upon an ajtplication of the legal principles we have



Dr. Kufus C. Burleson. 199

brought to view, we believe tliey will be found destitute of
weight and not worthy of serious consideration.

It has been urged that "the Legislature may refuse to
renew the charter of the corporation/' and the question has
been gravely asked — "If in that event the heirs of the Trus-
tees should claim the inheritance, who would contest it."

The supposition that the Legislature may refuse to renew
a charter is too irrational to be entertained. Your committee
believe it would be the first case on record, where a Legisla-
ture, without a cause, and where all the conditions of the
original grant had been faithfully complied with, refused to
renew the charter of a charitable corporation. Indeed the
writer himself admits that this, with several other cases he
supposes, are "not at all likely to occur:' In a logical point of
view, it is unnecessary to answer objections which the objector
himself concedes are not founded in reason.

^Nevertheless in order that there may be no objection to
this report on the ground of a want of completeness, your
committee proceed to reply :

A corporation may cease to exist — and from other causes
than the expiration of its charter. Upon the judgment of a
court of law, its charter may be forfeited and annulled. The
constituent members of a corporation may die, and the power
to renew may be lost; but a broad distinction exists between a
corporation and a trust — between an incorporated board of
Trustees, and the trust it administers. A coi-poration may die
— a trust never dies. That "a trust cannot fail for want of a
trustee," is a legal maxim. If the Trustees of Baylor Univer-
sity should demise to-morrow, and this Convention should dis-
solve never to assemble again, or if the charter should be for-
feited and annulled, or expire by limitation, the law, with the
same watchful vigilance with which it now guards the ad-
ministration of this trust, would provide for its security— ap-
point a new trustee or trustees, and compel the continued ad-
ministration of the charity in accordance with the intent and
design of the founders, patrong and donors.

Again it has been argued: "Suppose that the denomi-
nation should wish to abolish the Law Department or establish
a Theological Department, and that the Trustees should re-



200 The Life akd "Writings of

fuse — by what process of law can you compel tlieir consent."

And again : "Suppose the trustees should offer for sale
the lands of the Institution, against the ^vishes and advice of
the Convention — by what process of law could you prevent
the sale."

Both these supposed cases are of those which are declared
by the objector to be "not at all likely to occur." But for the
reason already assigned, your committee reply: The powers
called in question here, of directing the arrangement of the
internal affairs of the Institution and managing its funds, in-
here in the Board of Trustees by virtue of their visatorial
power. They are supposed to stand in the place of the
founders and donors and to be the assignees of all their rights
and privileges. Tliey are responsible for the abuse of their
trust, and not the Convention, and so long as they keep within
the limits prescribed by the charter, and execute in good faith
the wishes and intentions of the founders and donors of the
trust, there is no power that has a right to interpose.

In view of the principle that a founder or donor has the
right to direct the management of his benefaction, and that
the Trustees of the fund are the sole assignees of this right,
your committee are unable to perceive upon what principle of
law or reason this Convention can claim the right to exercise
the privileges of founders and donors in respect to a charity,
founded before she had an existence and to the funds of which
she never, as a Convention, has contributed one dollar.

But we may fairly meet the suppositions to which we are
responding by another. Suppose that in obedience to the com-
mand of this Convention, the Board of Trustees should make
such a disposition of her trust or any part thereof as should call
for the interposition of the Court of Chancery, and, in answer
to the summons, should plead that she had acted in obedience
to the command of this Convention. Would the Court admit
the plea and displace the Convention? This she must do, if
the Convention is the ultimate authority and has the legal right
to control the Board. But no; the answer would be, The law
recognizes you and you alone as responsible for the administra-
tion of this trust. The Trustees would be displaced and others
would be appointed, who knew their duties, and would act in
obedience to the laws of the land.



Dk. Kufus C. Burleson. 201

Again the question is asked : "Suppose you elect a man