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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 char
acter of the corporation which was created by the charter of

There are divers sorts of corporations ; and it may be safely
admitted 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 coq->orations, 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 individ
ual, with a charter obtained for it at his request, for the better
administration of his charity. " The eleemosynary sort of cor
porations are such as are constituted for the perpetual distribu
tions 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

* 1 Wooddeson, 471 ; 1 Black. 467.


maintenance of the poor, sick, and impotent ; and all colleges
both in our universities and out of them." 4 Eleemosynary
corporations are for the management of private property) ac
cording to the will of the donors. They are private corpora
tions. A college is as much a private corporation as a hos*
pital; especially a college founded, as this was, by private
bounty. A college is a charity. " The establishment of learn
ing," says Lord Hardwicke, " is a charity, and so considered in
the statute of Elizabeth. A devise to a college, for their ben
efit, is a laudable charity, and deserves encouragement." f

The legal signification of a charity is derived chiefly from
the statute 43 Eliz. ch. 4. " Those purposes," says Sir Wil
liam Grant, " are considered charitable which that statute enu
merates." f Colleges are enumerated as charities in that stat
ute. The government, in these cases, lends its aid to perpetu
ate 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 ob
jects of the charity, as, for instance, the scholars in a college or
the poor in a 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 regu
late it in future. Cujus est dare, ejus est disponere. This right
of visitation descended from the founder to his heir as a ri^ht


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. There
fore, 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 may be transferred to them, instead of
descending to his heirs. The persons thus assigned or appoint
ed 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

* 1 Black. 471. f 1 Ves. 537. t 9 Ves. Jun. 405.

1 Wood. 474. || 1 Black. 471.


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.* Al
though 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 found
er, but he who furnishes the funds. The gift of the revenues is
the foundation.!

The leading case on this subject is Phillips v. Bury.J 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 individual, 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
found in 2 Term Reports, 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 conse
quently 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 found-

* 2 Term Rep. 350, 351. f 1 Black. 480.

| 1 Lord Raymond, 5; Comb. 265 ; Holt, 715; 1 Shower, 360; 4 Mod. 106,
Skinn. 447.



or, the law appoints the founder and his heirs to be visitors, who are to
act and proceed according to the particular laws and constitutions as
signed 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 bv
any canons or constitutions ecclesiastical (as was said by a learned gen
tleman 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 au
thor 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 be
stowed it upon them. Now indeed, where the poor, or those that re
ceive 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 beween a college and a
hospital, except only in degree. A 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 a hospital the mas
ter 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 sup-
poseth 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.*

* 1 Lord Raymond, 9.


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 corpora
tions. It is to the following effect. " That this absolute and
conclusive power of visitors is no more than the law hath ap
pointed 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 govern
ment 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 visita
tion 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 condi
tions on which any persons were to be made or continue par
takers 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 any body 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

* 1 Burn s Eccles. Law, 443, Appendix, No. 3,


there be a charter with proper powers, the charity must be regu
lated 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 Parlia
ment, and a visitor or governor and trustees appointed, must
be referred to the general jurisdiction 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. There
fore, if either the crown or the subject creates an eleemosynary
foundation, and vests the charity in the persons who are to re
ceive the benefit of it, since a contest might arise about the gov
ernment 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." f

" There is nothing better established," says Lord Commis
sioner Eyre, " than that this court does not entertain a general
jurisdiction, or regulate and control charities established by char
ter. 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." f

" The foundations of colleges," says Lord Mansfield, " are to
be considered in two views ; namely, as they are corporations and

* 2 Fonb. 205, 206.

f Green v. Rutherforth, 1 Ves. 472, per Lord Hardwicke.
J Attorney-General v. Foundling Hospital, 2 Ves. Jun. 47. See also 2 Kyd
on Corporations, 195 ; Cooper s Equity Pleading, 292.


as they are eleemosynary. As eleemosynary, they are the crea
tures of the founder ; he may delegate his power, either gener
ally or specially ; he may prescribe particular modes and man
ners, as to the exercise of part of it. If he makes a general vis
itor (as by the general words visitator sit), the person so consti
tuted 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, incorporat
ing trustees and governors, they are visitors, and the king can
not visit.f A subsequent donation, or ingrafted fellowship, falls
under the same general visitatorial power, if not otherwise spe
cially provided. f

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 apprehended, to the fellows or members
of the corporation. In general, there are many donors. A
charter is obtained, comprising them all, or some of them, and
such others as they choose to include, with the right of appoint
ing successors. They are thus the visitors of their own charity,
and appoint others, such as they may see fit, to exercise the
same office in time to come. All such corporations are private.
The case before the court is clearly that of an eleemosynary
corporation. It is, in the strictest legal sense, a private charity,
In King v. St. Catherine s Hall, that college is called a pri
vate eleemosynary lay corporation. It was endowed by a pri
vate founder, and incorporated by letters patent. And in the
same manner was Dartmouth College founded and incorporated.
Dr. Wheelock is declared by the charter to be its founder. It

* St. John s College, Cambridge, v. Todington, 1 Burr. 200.

Attorney-General v. Middleton, 2 Yes. 328.

I Greene. Rutherforth, ubi supra; St. John s College v. Todington. ubi supra.

$ 4 Term Rep. 233.


was established by him, on funds contributed and collected by

As such founder, he had a right of visitation, which he as
signed to the trustees, and they received it by his consent and
appointment, and held it under the charter.* He appointed these
trustees visitors, and in that respect to take place of his heir ;
as he might have appointed devisees, to take his estate instead
of his heir. Little, probably, did he think at that time, that
the legislature would ever take away this property and these
privileges, and give them to others. Little did he suppose
that this charter secured to him and his successors no legal
rights. Little did the other donors think so. If they had, the
college would have been, what the university is now, a thing
upon paper, existing only in name.

The numerous academies in New England have been estab
lished substantially in the same manner. They hold their
property by the same tenure, and no other. Nor has Harvard
College any surer title than Dartmouth College. It may to-day
have more friends ; but to-morrow it may have more enemies.
Its legal rights are the same. So also of Yale College ; and,
indeed, of all the others. When the legislature gives to these
institutions, it may and does accompany its grants with such
conditions as it pleases. The grant of lands by the legislature
of New Hampshire to Dartmouth College, in 1789, was accom
panied with various conditions. When donations are made,
by the legislature or others, to a charity already existing, with
out any condition, or the specification of any new use, the
donation follows the nature of the charity. Hence the doctrine,
that all eleemosynary corporations are private bodies. They
are founded by private persons, and on private property. The
public cannot be charitable in these institutions. It is not the
money of the public, but of private persons, which is dispensed.
It may be public, that is general, in its uses and advantages;
and the State may very laudably add contributions of its own
to the funds ; but it is still private in the tenure of the property,
and in the right of administering the funds.

If the doctrine laid down by Lord Holt, and the House of
Lords, in Phillips v. Bury, and recognized and established in

* Black, ubi supra.


all the other cases, be correct, the property of this college was
private property ; it was vested in the trustees by the charter,
and to be administered by them, according to the will of the
founder and donors, as expressed in the charter. They were
also visitors of the charity, in the most ample sense. They had,
therefore, as they contend, privileges, property, and immunities,
within the true meaning of the Bill of Rights. They had rights,
and still have them, which they can assert against the legis
lature, as well as against other wrong-doers. It makes no dif
ference, that the estate is holden for certain trusts. The legal
estate is still theirs. They have a right in the property, and
they have a right of visiting and superintending the trust ; and
this is an object of legal protection, as much as any other right.
The charter declares that the powers conferred on the trustees
are " privileges, advantages, liberties, and immunities " ; and
that they shall be for ever holden by them and their successors.
The New Hampshire Bill of Rights declares that no one shall
be deprived of his " property, privileges, or immunities," but by
judgment of his peers, or the law of the land. The argument
on the other side is, that, although these terms may mean some
thing in the Bill of Rights, they mean nothing in this charter.
But they are terms of legal signification, and very properly used
in the charter. They are equivalent with franchises. Black-
stone says that franchise and liberty are used as synonymous
terms. And after enumerating other liberties and franchises, he
says : " Tt is likewise a franchise for a number of persons to be
incorporated and subsist as a body politic, with a power to
maintain perpetual succession and do other corporate acts ; and
each individual member of such a corporation is also said to
have a franchise or freedom." *

Liberties is the term used in Magna Charta as including fran
chises, privileges, immunities, and all the rights which belong
to that class. Professor Sullivan says, the term signifies the
"privileges that some of the subjects, whether single persons or
bodies corporate, have above others by the lawful grant of the
king ; as the chattels of felons or outlaws, and the lands and
privileges of corporations." f

The privilege, then, of being a member of a corporation,

* 2 Black. Com. 37. f Sull. 41st Lect.


under a lawful grant, and of exercising the rights and powers
of such member, is such a privilege, liberty, or franchise, as has
been the object of legal protection, and the subject of a legal
interest, from the time of Magna Charta to the present moment.
The plaintiffs have such an interest in this corporation, indi
vidually, as they could assert and maintain in a court of law,
not as agents of the public, but in their own right. Each trus
tee has a franchise, and if he be disturbed in the enjoyment of
it, he would have redress, on appealing to the law, as promptly
as for any other injury. If the other trustees should conspire
against any one of them to prevent his equal right and voice
in the appointment of a president or professor, or in the passing
of any statute or ordinance of the college, he would be en
titled to his action, for depriving him of his franchise. It makes
no difference, that this property is to be holden and adminis
tered, and these franchises exercised, for the purpose of diffusing
learning. No principle and no case establishes any such dis
tinction. The public may be benefited by the use of this prop
erty. But this does not change the nature of the property, or
the rights of the owners. The object of the charter may be
public good ; so it is in all other corporations ; and this would
as well justify the resumption or violation of the grant in any
other case as in this. In the case of an advowson, the use is
public, and the right cannot be turned to any private benefit or
emolument. It is nevertheless a legal private right, and the
property of the owner, as emphatically as his freehold. The
rights and privileges of trustees, visitors, or governors of incor
porated colleges, stand on the same foundation. They are so
considered, both by Lord Holt and Lord Hardwicke.*

To contend that the rights of the plaintiffs may be taken
away, because they derive from them no pecuniary benefit or
private emolument, or because they cannot be transmitted to
their heirs, or would not be assets to pay their debts, is taking
an extremely narrow view of the subject. According to this
notion, the case would be different, if, in the charter, they had
stipulated for a commission on the disbursement of the funds ;
and they have ceased to have any interest in the property, be
cause they have undertaken to administer it gratuitously.

* Phillips v. Bury, and Green v. Rutherforth, ubi supra. See also 2 Black. 21.


It cannot be necessary to say much in refutation of the idea,
that there cannot be a legal interest, or ownership, in any thing

Online LibraryDaniel WebsterThe works of Daniel Webster (Volume 05) → online text (page 46 of 53)