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enter into the idea of a municipal law: for the operation of this act is spent upon Titius only, and has no relation to the community in general; it is rather a sentence than a law."s Lord Coke is equally decisive and emphatic. Citing and commenting on the celebrated 29th chap, of Magna Charta, he says, " no man shall be disseized, &c. unless it be by the lawful judgment, that is, verdict of equals, or by the law of the land, that is, (to speak it once for all,) by the due course and process of law.f Have the plaintiffs lost their franchises by " due course and process of law?" On the contrary, are not these acts, " particular acts of the legislature, which have no relation to the community in general, and which are rather sentences than laws?"
By the law of the land, is most clearly intended, the general law; a law, which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial. The meaning is, that every citizen shall hold his life, liberty, property, and immunities under the protection of the general rules which govern society. Everything which may pass under the form of an enactment, is not therefore to be considered the law of the land. If this were so, acts of attainder, bills of pains and penalties, acts of confiscation, acts reversing judgments, and acts directly transferring one man's estate to another, legislative judgments, decrees, and forfeitures in all possible forms, would be the law of the land.
Such a strange construction would render constitutional provisions of the highest importance completely inoperative and void. It would tend directly to establish the union of all powers in the legislature. There would be no general permanent law for courts to administer, or for men to live under. The administration of justice would be an empty form, an idle ceremony. Judges would sit to execute legislative judgments and decrees; not to declare the law or to administer the justice of the country. "Is that the law of the land," said Mr. Burke, " upon which, if a man go to Westminster Hall, and ask counsel by what title or tenure he holds his privilege or estate according to the law of the land, he should be told, that the law of the land is not yet known; that no decision or decree has been made in his case; that when a decree shall be passed, he will then know what the law of the land is? Will this be said to be the law of the land, by any lawyer who has a rag of a gown left upon his back, or a wig with one tie upon his head?"
That the power of electing and appointing the officers of this college, is not only a right of the trustees as a corporation, generally, and in the aggregate, but that each individual trustee has also his «trn indiridual franchise in such right of election and appointment, is according to the language of all the authorities. Lord Holt says, "it is agreeable to reason and the rules of law, that a franchise should be vested in the corporation aggregate, and yet the benefit of it to redound to the particular members, and to be enjoyed bv them in their private capacity. Where the privilege of election is used by particular persons, it is a particular right, veshd in erery particular n«an."1
It is also to be considered, that the president and professors of this college have rights to be affected by these acts. Their interest is similar to that of fellows in the English colleges; because they derive their living, wholly or in part, from the founder's bounty. The president is one of the trustees, or corporators. The professors are not necessarily members of the corporation; but they are appomted bv the trustees, are removable only by them, and have fixed salaries payable out of the general funds of the college.—Both president and professors have freeholds in their offices; subject only to be removed, by the trustees, as their legal visitors, for good cause. All the authorities speak of fellowships in colleges as freeholds, notwithstanding the fellows may be liable to be suspended or removed, for misbehavior, by their constituted visitors.
* 1 Black. Com. 44. t <^kc 2 In. 46. f 2 I.cr.l Ray. P52.
Nothing could have been less expected, in this age, than that there should have been an attempt, by acts of the legislature, to take away these college livings, the inadequate, but the only support of literary men, who have devoted their lives to the instruction of youth. The president and professors were appointed by the twelve trustees.—They were accountable to nobody else and could be removed by nobody else. They accepted their offices on this tenure. Yet the legislature has appointed other persons, with power to remove these officers, and to deprive them of their livings; and those other persons have exercised that power. No description of private property has been regarded as more sacred than college livings. They arc the estates and freeholds of a most deserving class of men; of scholars, who have consented to forego the advantages of professional and public employments, and to devote themselves to science and literature, and the instruction of youth, in the quiet retreats of academic life.—Whether to dispossess and oust them; to deprive them of their office, and to turn them out of their livings; to do this not by the power of their legal visitors, or governors, but bjr acts of the legislature; and to do it without forfeiture, and without fault; whether all this be not in the highest degree an indefensible and arbitrary proceeding, is a question, of which there would seem to be but one side fit for a lawyer or a scholar to espouse.
Of all the attempts of James II. to overturn the law, and the rights of his subjects, none was esteemed more arbitrary or tyrannical, than his attack on Magdalen ColUge, Oxford: And, yet, that attempt was nothing but to put out one president and put in another. The president of that college, according to the charter and statutes, is to be chosen by the fellows, who are the corporators. There being a vacancy, the king chose to take the appointment out of the hands of the fellows, the legal electors of a president, into his own hands. He therefore sent down his mandate commanding the fellows to admit, for president, a person of his nomination; and inasmuch as this was directly against the charter and constitution of the college, he was pleased to add a non obstante clause of sufficiently comprehensive import. The fellows were commanded to admit the person mentioned in the mandate, "any statute, custom or constitution to the contrary tuAirithstanding, wheretrith ire are graciously pleased to dispense, is this behalf.'' The fellows refused obedience to this mandate, and Dr. Hough, a man of independence and character, was chosen president by the fellows, according to the charter and statutes. The kmg then assumed the power, in virtue of his prerogative, to send down certain commissioners to turn him out; which was done accordingly; and Parker, a creature suited to the times, put in his place. And because the president, who was rightfully and legally elected, would not deliver the keys, the doors were broken open. "The nation as well as the University," says Bishop Burnet, [Hist, of his own times, Vol. 3. p. 119.] "looked on all these proceedings with just indignation. It was thought an open piece of robben| and burglary, when men authorised by no legal commission, came and forcibly turned men out of their possession and freehold." Mr. Hume, although a man of different temper, and of other sentiments, in some respects, than Dr. Burnet, speaks of this arbitrary attempt of prerogative, in terms not less decisive. "The president, and all the fellows," says he, " except two, who complied, were expelled the college; and Parker was put in possession of the office. This act of violence of all those which were committed during the reign of James, is perhaps the most illegal and arbitrary. When the dispensing power was the most strenuously insisted on by court lawyers, it had still been allowed, that the statutes which regard private property, Could not legally be infringed by that prerogative. Yet, in this instance, it appeared that even these were not now secure from invasion. The privileges of a college are attacked; men arc illegally dispossessed of their property for adhering to their duty, to their oaths, and to their religion."
This measure king James lived to repent, after repentance was too late. When the charter of London was restored and other measures of violence retracted, to avert the impending revolution, the expelled president and fellows of Magdalen College were permitted to resume their rights. It is evident that this was regarded as an arbitrary interference with private properly. Yet private property was no otherwise attacked, than as a person was appointed to administer and enjoy the revenues of a college, in a manner and by persons not authorised by the constitution of the college. A majority of the members of the corporation would not complv with the king's wishes. A minoritv would. The object was, therefore, to make this minority a majority. To this end the king's commissioners were directed to interfere in the case, and they united with the tiro complying fellows, and expelled the rest; and thus effected a change in the government of the college. The language in which Mr. Hume, and all other writers, speak of this abortive attempt of oppression, shows that colleges were esteemed to be, as thev truly are private corporations, and the property and privileges which belong to them, private property and private privileges. Court lawyers were found to justify the king m dispensing with the laws; that is, in assuming and exercising a legislative authority. But no lawver, not even a court lawyer, in the reign of king James the second, as far as appears, was found to say that even by this high authority, he could infringe the franchises of the fellows of a college and take nwsy their livings. Mr. Hume gives the reason; it is that such franchises were regarded, in a most emphatic sense, as private propertys
If it could be made to appear, that the trustees and the president and professors held their offices and franchises during the pleasure
•Vide a full account ofthi s ciuc in Mate trials, '4 Eiln. t Vol. jmg» 262.
pressed 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 legislature, as well as against other wrongdoers. It makes no difference, 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 forever holden by them and their successors. The IS'ew 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 something 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. Blackstone says that franchise and liberty are used as synonymous terms. And after enumerating other liberties and franchises, he says, " it 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 orfretdomys
Liberties is the term used in magna charta as including franchises, 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."^
The privilege, then, of being a member of a corporation, 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 plaiutills have such an interest in this corporation, individually, as they could assert and maintain in a court of law, not as agents of the public, but in their own right. Each trustee 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 stutute or ordinance of the college, he would be entitled to his action, for depriving him of his franchise. It makes no difference, that this property is to be holden and administered, and these franchises exercised for the purpose of diffusing learning. No principle and no case establishes any such distinction. The public may be benefitted by the use of this property. 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
• 2 Black. Com. 87. f Suit. 41m Lrct.