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important it is, in reading the reports, to confine the language of even the most eminent judges to the cases before them. The language so much relied upon is as follows:

"And 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. 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 proceed and act according to the particular laws and constitutions assigned them by the founder."1

...

Now, it strikes us that, upon the face of it, this classification, unless limited to the subject of visitation then under consideration, is clearly insufficient. It divides corporations into two classes, those that are controlled by the King's courts, and those that are controlled, as "private" charities are, by a visitor. Those that are visited, he considers as private, in that the courts have no jurisdiction over them; those of which the court has jurisdiction, he calls public, in contradistinction to visited, corporations. Such we take to be his meaning. Otherwise, his statement is clearly wrong. A trading corporation surely, if there be a division between public and private corporations, is a private corporation; and yet it has no visitor.2 Or, if we take Lord Holt's precise words, he regards no corporations whatever, except those established for public government and those established for private charity. What, then, becomes of the Bank of England, the East India Company (in Lord Holt's time a purely trading association), and the South Sea Company? Surely the father of our mercantile law would not have overlooked these.

Another authority much relied upon is Attorney-General v. Pearce. The question in that case turned upon a bequest made

1 2 T. R. 352.

2 Attorney-General v. Ulica Insurance Company, 2 Johns. Ch. 386-389.
32 Atk. 87; s. c. Barnard. Ch. 208.

to "all the public charities" to which another person had given legacies in her will; and it was contended at the bar that certain legacies so given to be distributed to such housekeepers as two persons mentioned should appoint, and to the sick and lame of a certain place, were "private" charities, and therefore not, like charity schools and hospitals, to be increased by the bequest to "all the public charities." But Lord Hardwicke said:

"I am rather of opinion that the word public was meant only by way of description of the nature of them, and not by way of distinguishing one charity from another. . . . The charter of the Crown cannot make a charity more or less public, but only more permanent than it would otherwise be; but it is the extensiveness which will constitute it a public one. A devise to the poor of a parish is a public charity."

It is very apparent that Lord Hardwicke did not mean to say that a corporation administering a public charity was a private corporation; or that a charity was not public when administered by unincorporated trustees; but that the charter of the Crown did not make the charity more public, because it was public before.1 Although Mr. Webster seemingly endeavored to distinguish between Dartmouth College and banks and insurance companies, and intimated that the first may be a private corporation, while the second were to be considered as public ones, Mr. Justice Story does not attempt to make any such distinction; nor is such a distinction possible. If Dartmouth College was a private corporation, then banks, and railway and canal companies must be; for they are corporations in which private individuals have pecuniary interests, and they are established as much for the private gain of the stockholders or members as for public convenience.

A large part of the learning and argument, both of Mr. Webster and of Mr. Justice Story, is founded on the visitatorial authority over a college. This we shall not consider, because in our view of the case it is immaterial. We freely admit that no technical visitatorial authority over the college existed in the Crown or in the State of New Hampshire. The authority which we claim the sovereign legislature possessed was of a different

1 It is curious to notice that Mr. Webster, in the beginning of his argument, calls Dartmouth College a private corporation administering a public charity, in support of which he cites Lord Hardwicke, supra. In the latter part of his argument, he drops out the intervening words as surplusage, and calls it a "private charity."

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and higher kind, and entirely independent of the law of visitation. We admit also that the King had no power over this charter or over the college; but this arose from the limits upon his prerogatives. The Crown cannot impose taxes; but it does not follow that, therefore, nobody should be taxed. The power in the legislature that we are contending for, is a legislative power; and as Macaulay says, "No English King ever laid claim to the general legislative power. The most violent and imperious Plantagenet never fancied himself competent to enact, without the consent of his great council, that a jury should consist of ten persons instead of twelve, that a widow's dower should be a fourth part instead of a third, that perjury should be felony, or that the custom of gavelkind should be introduced into Yorkshire." 1

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Technically the King, in the charter of the college, did not assume to bind any one save himself, his heirs, and successors. He could bind no one else. The Crown could formerly grant away the crown property, because the law regarded it as its own. So, too, being the fountain of honor, it can confer peerages and titles of honor. These once granted, are irrevocable, except by revolutionary legislation. But it is different when prerogatives, and property held by prerogative as distinguished from personal title, are involved. Over these the power of the Crown is more limited. It will hardly be pretended that the Crown could insert in the charter of a corporation an exemption from taxation that would bind Parliament, even if it were legal at all. The seashore, the soil covered by the sea, and exclusive rights of fishery, -property held by the prerogative title, the Crown cannot grant away without the consent of Parliament.2 While the Crown can grant corporate rights, we think it clear from analogy that such rights, being prerogative and political in their nature, must be granted subject to the legislative control of Parliament. That Parliament has claimed and exercised this power to amend and even rescind royal charters, and charters even granted itself, and to regulate the use of the franchises conferred by

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1 1 Macaulay's History of England, 29; 1 Hallam's Constitutional History, 4. Blundell v. Catterall, 5 B. & Ald. 287 et seq.; Duke of Somerset v. Fogwell, 5 B. & C. 883, 884. In Commonwealth v. City of Roxbury, 9 Gray, 451, the court decided that the same words granted a town jurisdiction and title to the upland included within its boundaries, but jurisdiction only over the seashore held by the colony by a prerogative title.

them, is simply matter of history. The power to do so, being purely legislative, is not one likely to be discussed in law books; but nevertheless it is recognized. Blackstone says,—

"A corporation may be dissolved by act of Parliament, which is boundless in its operations.” 1

Kyd says,

"That a corporation may be dissolved by act of Parliament is a consequence of the omnipotence of that body in all matters of political institution. But the King, though by his prerogative he can create a corporation, cannot by his prerogative dissolve it; for it is a principle of the law of England that the King may grant privileges and immunities, but that when once vested he cannot, by his mere prerogative, take them away.”2

Mr. Grant, a modern writer of authority, affirms this.

"Though," says he, "to call a corporation into existence by charter is in the discretion of the sovereign, a forced extinction of it, when once established, can only be effected in the Court of Queen's Bench or by act of Parliament. The latter mode was more frequently resorted to in former times than of late."3

But we have higher authority for the position that Parliament may regulate the affairs of what Judge Story would call "private" eleemosynary corporations, even where there is a visitor. In 1850, after a debate in Parliament in regard to the condition of the Universities of Oxford and Cambridge, Lord John Russell, the Prime Minister, wrote to their chancellors informing them that the Queen was about to appoint commissions to inquire into their condition and revenues. This information caused great excitement in both of them; and the University of Oxford took the opinion of counsel on the question of whether the Crown possessed any visitatorial authority over them. The opinion given is signed by Mr. (afterwards Lord Justice) Turner, Mr. Bethell (afterwards Lord Westbury), Mr. (now Mr. Justice) Keating, and Dr. Kenyon, Vinerian Professor of Common Law. These distinguished counsel gave it as their opinion that the Crown had no visitatorial authority over the Universities and Colleges, and say, "Considering, then, that the object of this commission is inquiry alone, that it is not authorized by Parliament;" and, for other reasons which they enumerate, they are of opinion that 22 Kyd on Corp. 447. 3 Grant on Corp. 302.

1 1 Bl. Com. 485.

the commission is illegal, and the University and Colleges are not bound to obey it.

If the meaning of this is doubtful, all doubt is removed by a separate opinion given by the same learned gentlemen to Brasenose College. In that they say,—

"By the common law, the authority of a visitor is absolute and final as to all matters within his jurisdiction, and his power as to those matters cannot be taken away, or controlled by any other authority, excepting, of course, the supreme legislature." 1

This power has been repeatedly exercised in respect to the Universities and Colleges. The most ancient colleges were established in Roman Catholic times by zealous supporters of that faith; and at the Reformation, Parliament forbade the celebration of the rites of the Roman Catholic Church, -a most radical change in them, for most of the colleges had been founded ad studendum et orandum; to maintain prayers for the souls of the founders, as much as for the benefit of learning. In 1662, Parliament (we wish we could say without their tacit assent) enacted in the Act of Uniformity that no person should hold office within them, enjoy any of their honors or receive degrees from them, without subscribing the Thirty-nine Articles of the English Church. After the reports of the commissioners above-mentioned, bills were carried through Parliament by a government in which Mr. Bethell was Solicitor-General, against the protest of the Universities, changing the character of their governing bodies, suppressing some fellowships, and greatly modifying the tenure of others, and frequently throwing them open to the whole realm in opposition to the directions of the founders which limited them to certain classes of persons; compelling in some instances the wealthier colleges to endow professorships out of their revenues, and also greatly relaxing the Act of Uniformity. In 1871, tests were entirely abolished and forbidden for any or all offices or honors except those in divinity. Similar legislation has also been enacted in regard to the great public schools, the grammar schools, and other endowed charities. If any one doubts the necessity of such a legislative authority, he had better read the reports of the various commissions appointed to inquire into their condition.

1 Report of Oxford University Commissioners, London, 1852, Appendix, 26, 30, 81.

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