Den on demise of the Trustees of the University v. Foy, 5 N.C. 58, 1 Mur. 58 (1805)

June 1805 · Supreme Court of North Carolina

5 N.C. 58, 1 Mur. 58

Den on demise of the Trustees of the University North-Carolina vs. Foy and Bishop

—Wilmington.

This was an action of ejectment brought to recover the Possesion of certain escheated lands in the district of Wil-The defendants pleaded in bar the act of 1800, 5, entitled “ An act to repeal so much of the several laws now i» torce in this state, as grants,power to tho trustees of the University of Noeth-Carolina to seize ami pos-seas for the use of the said University, any escheated or confl-rated property.” — To this plea the plaintiff demurred, ami the defendants having joined in demurrer, the case was sent to this court for the opinion of (he judges.

The first section ohresViiat “ schools shall bo es. (iiblisbctlby the legisla» co^Venient histmciúm with such thomastera, c™Uc struct at" ™^onr-inotetiPin one. or more obedience to this injunction 0f tutioMUc esiabiisiie^ a“ tinivuv-sity, and in the year Trustees'of i>'°i>«-ty ihai had theretofore tiieJtaftcr eschent to ^theTeav ’repc^ieü" this grant, — i lus repealing aet heing1 m che °io tif section of the bill of rights, part of the & declares freeman0 ougntto be taken, imprisoned or dhis'frec-0t vik ges, or outlawed or in any man-nerde-stroyed. or deprived of h belty hut0Ibyrttiie jaw of

This rase was argued by Haywood lor the lessors of plaintiff and by Luffey and Jocelyn for the defendants. The arguments relied upon for the defendants are noticed in the foliowing argument of Haywood for the lessors of the * . ' plaintiff: .

In j 789, the Legislature, by act r,f Assembly then passed, granted to the Trustees ‘ all the property that has hereto-foro or shad hrrealter escheat to the state.’! By another act, passed in 1794. the A.ssnably granted to the trustees the eonii-fa'.ed property then unsold^ ami by another act, puss - ed in 1800, it is enacted» *' Tliat from and after the ing of tisis act, sjll acts or clauses of acts vsihich have here-ti'tore granted p->',vcr to the Trustees of the University of NortlpUarolinu, to seize and possess any escheated or con-fibcated property, real or personal, shall be and the hereby repealed and made void.”

“»2?id beitfurtker Oicc'.ed, That all escheated or confiscated property which the said 1 rucie,cs, their Agents or At- * ^ tornoyp have not legally sold by virtue of the said Laws? shall from hence revert t) the state, and henceforth bo considered as the propel ty of the same, as though such laws liad never been passed.”

In consequence of these provisions, it is imagined Truste-es have no title' to the lands in question, because they are of the description mentioned in the act; and it is a question for the consideration of this court how far the * tecs have title under the fort^eeof these laws* and how far they are divested of t^iat title by the latter.

It is supposed by some that the public property cannot be disposed of. but by grant, because in the 36th section of Constitution, it is directed “that all comvnisssions and grants shall run in the- name of the state of North-Caroli- and bear test and he signed by the Governor,” &c. It ^oes noí saJ’ a^ propet ty shall be conveyed by Grant, and not otherwise : but when conveyed by grant, it prescribes the form; otherwise it would have been uncertain, who should authenticate the instrument: ami the form would have been as different and discordant, as the opinions of succcs-officers were various,'«pon the subject of'the most convenient and proper form. If the Legislature is at liberty *() (prect the officers of State to issue grants for certain pro- ° \ perty ; surely they arc at liberty to grant it themselves in a more solemn way by act of Assembly, which is an instrument subject to more scrutiny and solemnity in its passage than any other instrument known in our law. ft cannot be thought, that there is more danger of imposition upon the ’ „ , , . General Assembly, m the disposing oí public property ny act of Assembly, than there is upon individual officers convey-by srant-

j„ fmth, the passing of public property by act of Assent- * * 1 * v * bly, hath been practised almost ever since the formation of our Constitution ; and has never been questioned. Some of n‘°st Earned Lawyers of former times, who had a prin-c'I,a* share in forming the Constitution, approved soon af-of the mode of passing the public property in this way.

On the 18th, of October, 1779, C.17, a tract of land was vested by act of Assembly in Thomas Person, his heirs and assigns$ on the same day another tract is declared to be and remain to Thomas Burk, his heirs and assigns: 17th April, 1780, a tract is vested in William Houston, his heirs and assigns ; another in Hannah Reed. Similar instances occur in 1780, C. 40, 1782, C. 36, 1783, C. 38, C. 42,1784, C. 71, 1786, C. 72, C. 82, 1787, C. 33, 1789, C. 56, and divers oilier acts passed since 1789. These several acts, demonstrate an unity of sentiment on this subject, not only of the profession, and of the Assembly, which has from time to time proceeded in this way ; but of the public, who have never questioned the validity of such conveyances. A more important question is, whether it is true, as argued on the other side, that a repeal of the vesting acts, divests the Trus- . ' * tecs of all the property acquired miner the former raws, which had not been disposed of when the repealing act passed.

And if we consider either the nature of Conveyances, or of repealing acts of the Legislature ; and if we at the Same time admit the untrue position, that the Assembly had power, at pleasure, to rc-assume the properly which they had parted with by their grants ; still we shall be obliged to acknowledge, that they have not divested the Trustees of this property.

It is incontrovertibly true in regard to the Conveyances of individuals, that if the title be transferred by deed or other instrument; and that be afterwards lost, cancelled, or otherwise destroyed ; the title does not thereby revert to the grantor. Gilberts Law7 of Evidence, 107, states precisely “ that if a conveyance be made by lease and release, the uses were once executed by the stuttde, and they do not return back again by cancelling the deedand in this proposition he is supported by 1 Mo. 107. Boiler’s N. P. 267. It is upon this principle that a contract cannot be dissolved nor property transferred, but by consent of the party, who is entitled to the benefit of it — it cannot be dissolved by the arbitrary act of one party, to the prejudice of the other, and without his consent; nor can it be re-transferred by any act, which is not assented to by the legal owner. Is the Legislature released, from the operation of this principle ? No: it is incorporated into the immutable law of natural justice ; and no power upon earth can rightfully overturn it. How comes it then, that a declaration of the nullity of the vesting acts, made several years after the property has completely passed from the Legislature, without consent of the Trustees, shall again restore it to the state ? Suppose such a declaration as completely to have destroyed those instru-. meets of conveyance, as ii'thev had been burned, or caueell-expunged from all the public .records ; still the title ^ias ah'eady passed, and some further art was requisite to re-vest these titles — ap art as we shall presently se.e far bey ond ^ie p0wers 0f t¡ie Legislature to perform, if the most complete destruction of the. instruments of conveyance., will not restore the property, can such a consequence be derived from the nature of a repealing act ? This question is solved, by considering the effect of a repealing act. In common with other acts, it Inis pot any retrospective view; unless given it by express wordg. 1 do not deny but that the Legislature have power in pass retrospective laws, on subjects liable to their legislation: But such an exercise of power, is always the dictate of imperious iwccssilv ; is in itself odious; becauseit interferes with persons and things, who did not expect it, a’-d is therefore not admitted; but when the words of the act unequivocally give it such a meaning. 4 Bur. 3461, 3 Mo. 310,2 Just. 292. The repealing act then in the case before us, having no reslrospec-tive terms, commenced its operation precisely at that point of time when it passed.

What then became of all the property which had before that time vested in the Trustees? It was not in the least degree affected by the repealing acts. Our opponents say however, that the words of the repealing act resume, for the use of the state, all confiscated and esrheated lands not then sold although parted with before, and extends expressly to all former acquisitions; and that the repealing act is' really retrospective. For a moment be it so; then we are to enquire, not only what they have done, but also (which is far more material) what they had a right to do.

And in order to make a fair experiment of the extent of legislative power,let us see how far the Legislature can interfere with the rights of private property; how far, with the property belonging to corporations; and then more particularly how far they have control over the property of the Unhersify of North-Carofina. The intangibility of pri" vate property, is, to every com minify, a principle of the highest consideration: the industry of its inhabitants depends upon 51, and the necessaries and the comforts of life» which are results of industry, are produced by a belief in every citizen, that what his industry procures will be peculiarly Ftis-own. In despotic governments none labour, because the earnings of labour are not free from invasion ; and idleness and poverty, and the destitution of those things which render life, agreeable, predominate.

North-Caroiina will find by fatal experience, the oftener her Legislature breaks in upon tiiis great principle, tho nearer will She approach to tiiis representation of despotism! Every example of innovation which slie gives, Will lessen the assurance of individuals in its sanctity ; because every hew instance gives new strength to the practicability of invasion, exposing to public view the futility of the maxim, which professes to render private property inviolable. Deliberate but one moment on the consequence of this principle, and its vast magnitude will rush.upon the senses. We shall be convinced of tho reasons, why all wise governments have made it a fundamental maxim of their political institutions j and why in ail free ones, it ought to be the most sacred. Those who argue for this power, can only derive it, either from tho inherent rights of sovereignty, or from some cláuse in the Constitution of North-Caroiina. If it he a right of sovereignty, it is because sáliis populi est su-. prema lex ; and can only be resorted to, where the maxim applies — in cases of extremity; and when an abstinence from the' use of private property, would endanger the public safety. Under such circumstances, it is better that one should suffer than all be ruined. Yet here, the individual who suffers to serve the public, must be compensated for his loss, because it is just that a loss sustained for the benefit of all should he borne equally by all. Thus compensation be-tcoraes a duty of the sovereign, without which he cannot rightfully practice the seizure or private property ; to say he will do it, without necessity and without compensa-w0uld be called tvranny in an individual sovereign : * J t and bow is it the less so where the same thing is done by a collective body ? Certainly there is no difference as to the individual Who suffers. Yattel, B. 1. C. 20, 244, decides that the right of eminent domain is in certain cases necessary for him who governs,, and consequently is a pert of the empire or sovereign power $' but when he disposes in a case of necessity of the possession of a community or individual, the alienation will be valid for the same reason but justice demands that this community, or this individual be recompensed out of the public money ; and if the Treasury is not able, yet all the citizens are obliged to contribute to it; for the expenses of the state ought to be, supported'equally or in just proportion : it is in this as in the case of throwing of merchandize overboard to save the vessel. The Assembly of Nerth-Carolina, circumscribed in its capacity by the fun-damenta) law of the'Constitution, cannot pretend to greater prerogatives than the Parliament of Great Britain, whose power is thus described by the most learned British authors, 1 BI. C. 160. “ The power and jurisdiction of Parliament, is so transcendant and absolute, that it cannot be confined either for causes or persons within any bounds!, it hath sovereign and incontrovertible authority, in making, confirming, enlarging, restraining, abrogating, repealing, reviewing and expounding of laws; concerning matters of all possible denominations; ecclesiastical or temporal, civil, military, maritime or criminal; this being the place where that absolute despotic power which' must in all governments reside somewhere, is intrusted by the constitution of these kingdoms,

“If can in short do every thing that is not naturally impossible, and therefore some have not scrupled to call its power, by a figure rather too bold, the omnipotence of Parliament,” 4dl*powerful however as it is, like the Gods, who are bound by the decrees of fate, it bows down before the sacred image of which I am speaking, and reverences holy rights of private property. 1 E!. C. 139, shé^s the regard that is. paid to them, “ So great moreover” says he, “ is the regard of the law for private property, that it will not authorise the least violation of it: no not even for the general good of the whole community.- If a neiv road for instance wore to be made through the ground of a private person, it might perhaps'be extremely beneficial for the pub. lie; but the law permits no man or set of men, to do this without consent of the owner of the ¡am . In vain may it be argued," that the good of the individual ought to yield to that of. the community ; for it wduSd be dangerous to allow any Private man,, or even any public tribunal,: to be the judge of this common good, and to decide whether it be expedient or no. — ^Besides, the public good is in nothing -more essentially interested, than in .the protection of- every individual’s private rights,-as modelled by the municipal law. In this and similar cases,.«the Legislature alone have, and indeed frequently does interfere, and compel the individual to acquiesce. But bow does it interfere a yd compel? Not by absolutely stripping the subject of his property an an arbitrary manner, but by giving him a full indemnification,’ and equivalent for the injury thereby sustained. -The public is now considered as an individual, treating with an individual for an exchange. All the Legislature does, is tb-oblige the owner to alienate his possessions .for a reasonable price ; and even this is an exertion of power, which the Legislature indulges with caution ; and which nothing but the Legislature-can perform!” The despotic Legislature of Great-Britain cannot intermeddle with the rights of private property, hut in cases of urgent necessity, and not without making just compensation. And shall the Assembly of North-Carolina encroach upon those rights, when not required by public necessity, and without making any compensation at all ? I would fain know, in a concern of such .moment, whence it is, that they are less bound to respect the rights of private, property than the English Parliament ? and upon’ v, hat occasion it was, that the people cloatlied them with a discretion s^fatal to their dearest interests. To speak in com-of the British constitution, is unpleasant to an American ear, because of the idea which is connected with the absoluteness of its power. What then are we to say, when we hear it asserted, that the Assembly of North-Carolina surpass them in power, and can do what they cannot 2 It may be said, that the Assembly are the only judges of the existence of the necessity, which justifies the assumption of private property for public uses, if this be true, then the pre-requisite of public necessity is no restriction of their power; for in their judgment it may exist, when in the opinion of all others it does not; and thus a wrong committed against the rights of an individual, would be sanctified by the wrong judgment of the oppressor. Whatever respects the power of the legislature, must be judged of by those who are to determine of the conformity of its acts, to the powers delegated by the people; and when it is said that public necessity must precede their power to affect the rights of private property, and that they have done so without such necessity, whether it did exist or not, must be determined by some other persons than themselves. Before the act is done, either by the intervention of a Jury, as in the case of public roads; or by some other known mode, recognized by the laws and constitution of this country: and after it is done by the opinion of those Judges who are appointed to watch over the constitution, and are sworn to reject all unconstitutional acts. Then supposing this to be the case of an individual,' how does it appear that the public necessity demands that seizure of property, which the act in question contemplates 2 It is not to be found in the public records, nor in the public history of the country ; no verdict establishes it; nor is it even alleged in the preamble of the act: but above all, not a word of compensation is any where mentioned in it. It appears to be a seizure without necessity, without cause, and without compensation ; and is not justified by the right of eminent domain, belonging to sovereignly ; because it has not observed the restriction to which that right is subjected! *

Is it then justified by any thing we find in the constitution of this State ? And it seems to me that there is no part of the constitution of our State, which allows to the Legis-iafure a right to divest the cit izen. or any corporation or set of citizens, of the rights of private property. There is a clause in our constitution, particularly applicable to this subject. — Bill of rights, section JÓ: “ no freeman ought to be taken, imprisoned, or disseised of Ills freehold, liberties op privileges, or outlawed or exiled, or iri any manner destroyed or deprived of his life, liberty or property, but by the Jaw of the land/>’ I will presently proceed to remark upon all the material parts of this section ; but before doing, so, let us notice the effects of a similar, but much less explicit provision, in the constitution of a sister State. It is contained in the 1st, 8th and 11th articles of the declaration of rights of. Pennsylvania, and in the 9th and 46th sections of the constitution of that State. The Legislature of Pennsylvania had passed an act to divest certain persons of titles acquired under the existing law and to place titles in others: and. this brought on the question, whether the law was agreeable to the constitution, and if not what was the consequence of its disagreement therewith. And after defining what is a constitution, the learned Judge who presided, discussed the question now under consideration. He defined a constitution thus: “ It is the form of government delineated by the mighty hand of the people in which certain fixed principles of fundamental law's are established. The constitution is certain and fixed : it contains the permanent will of the people, and is the supreme law of the land. It is paramount to the power of the Legislature, and can be revoked or altered only by the authority that mude it. What are Legislatures ? Creatures of the constitution : they owe thei existence to the constitution: they derive their power from the constitution. It is their commission, and therefore alj their acts must be conformable to it, or else they will v0¡(]. The constitution is the work or will of the people themselves, in their original sovereign ami unlimited capacity. Law is the work or will of the Legislature in their deriva-f(ve or subordinate capacity : the one is the work of the Creator and the other of the creature. The constitution fixes limits to the exercise of the Legislative.authority, and prescribes the orbit within which it must move. Whatever may be the case ip other' countries, yet in "this there can be no doubt tbat'ev'éry act of the Legislature, repugnant to the constitution,'is'absolutely void. The late constitulion of Pennsylvania declares the rights of conscience, and that elections be by ballot. Could the Legislature annul these articles respecting religion, the rights of conscience and elections by by ballot? Surely no.' As to these points, there was no devolution of power. The authority was purposely withheld, and reserved by the people to themselves. If the legislature had passed an act declaring that in future there should be no trial by jury, would it have been obligatory ? No. It Would have been void for want of jurisdiction or constitutional extent of power. The right of trial by jury is a fun-damenta! lá\y made sácred by the constitution, and cannot he legislated away. The constitution of a state is settled and permanent, not to be acted upon by the temper of the times, nor to rise and fall with the tide of events. I hold it to be a clear position, that if a Legislative act oppugns a constitutional principle, the former must give way and be rejected on the score of repugnance, I hold it to be a po sition equally clear and sound, that in such a case, it will be the duty of the court to adhere to the constitution, and to declare the act null and void. The judiciary.in this country is not a subordinate but a co-ordinate branch of the government.” He then comes to the point more immediately the subject of our present consideration. “ Those passages,” says he, “ adverting to the before mentioned clauses of the constitution of Pennsylvania, “declare that the right of acquiring and possessing property and having it protec* fed5 is one of the natural, inherent and unalienable rights of man. Men have a sense of property; property is necessary to their subsistence, and correspondent to their natural wants and desires; its security was one of those which induced them to unite in society. No man would he. come a member of a community in which he could not enjoy the fruits of his labor and industry. The preservation of property then is a primary object of the social compact, and by the .late constitution of Pennsylvania, was made a fundamental law. Every person ought to contribute his portion for public purposes and public exigencies; but*no one can be called upon to surrender or sacrifice his whole property, real and personal, for the good of the community, without receiving a recompense in value. This would be laying a burden upon one individual which ought to be sustained by the society at large. The English' history does not furnish one instance of this kind ; the Parliament, with all its boasted omnipotence, never committed such an outrage upon private property ; and if they had, it would have served only to display the dangerous. nature of unlimited authority. It would have been an exertion of power and not of right; such an act would be a monster in legislation, and would shock all mankind. The Legislature, therefore, had no authority to make an act, divesting one citizen ofhis free, hold and vesting it in another, without just compensation, It is inconsistent with the principles of reason, justice, and moral rectitude; it is incompatible with the comfort, peace and happiness of mankind ; it is contrary to the principles of social alliance in every free government; and lastly, it is contrary to the letter and spirit of the constitution. In short, it is what every one would think unreasonable and unjust in his own case.

“ The next step in the line of progression is, whether the Legislature had authority to make an act divesting one citizen of his freehold and vesting it in another, even with compensation ? That the Legislature in certain emergencies had authority to exercise this high power, has been urged from the náture of the social compact, and from the words the Constitution ; which says, that the house of repreSentatives shall have all. other powers necessary for the Le-ure of a free state or commonwealth ,* but they shall ^ave 110 P?wer a<ld to, alter, abolish or infringe any part this constitution. The course of reasoning on the part of the defendant may be comprised in very few words. The despotic power as it is aptly called by some writers, of taking private property, when state necessity requires, exists in every government; the existence of such power is necessary; government could not subsist without it; aud if this be the case it cannot be" lodged any where, with so much safety as with the Legislature. The presumption is tha they will not call it into exercise except in urgent cases, or cases of the first necessity. There is force in this reasoning. ft is, however, difficult to form a case, in which the necessity of a state can be of such a nature, as to. authorise or excuse the seizing of landed property belonging to one citizen and giving it to another citizen. It is immaterial to the state in which of its citizens the land is vested ; but it is of primary, importance, that when vested it should he secured, and the proprietor protected in the enjoyment of it. The constitution encircles and renders it an holy thing. The present case is a case of landed property vested by law in one set of citizens, and attempted to be divested for the purpose of vesting the same property in another set of citizens. It cannot he assimilated to the case of personal property t .ken and used in time of war, or famine, or other extreme necessity ; it cannot be assimilated to the temporary possession of land itself, in a pressing public emergency on the spur of the occasion. In the latter case, there is no change of property, no divestment of right; the title remains, and the proprietor, though out of possession for a while, is still proprietor and lord of the soil. The possession grew out of the occasion and ceases with it. Then the right of necessity is satisfied and at an end ; it does not effect the title, is temporary in its nature, and cannot exist forever. The constitution expressly declares that the rigid; of acquiring possession and of protecting property, is natura!, inherent and unalienable. It is a right, not ex gratia from the Le» gislature, but ex debito from the constitution. It is sacred, for it is further declared that the Legislature shall' have no . sower to alter, abolish or infringe any part of the constitu-;ion. The constitution is the origin and measure of the Legislative authority. It says to the Legislature, thus far shall you go, and no farther ; not a particle of it shall shaken, not a pebble shall be removed. Innovations are langerous ; one encroachment leads to another; precedent ;ives birth to precedent; what has been done may be done gain : thus radical principles are generally broken in upon, tnd the constitution destroyed. Where is the' security Where is the inviolability of property, if the Legislature, , positive act, affecting particular persons only, can take md from one citizen, who acquired illegally, and it vest in nother ? The rights of private property are regularly rotected and governed by general, known and established iws; and decided upon by general, known and established unals. — Laws and tribunals are not made and created on istant exigency, or an urgent emergency to serve a present irn, or the instant of a moment: tlieir operations and uence are equal and universal. They press equally 011 lence security and safety, tranquility and peace: one s not afraid of another, and no man afraid of the Legisla» ire.

‘It is infinitely wiser and safer to risque some possible mis» hiefs, than to vest in the Legislature so unnecessary, dan» jrous and enormous a power as that which has been exer» sed on the present occasion ; a power that according to e full extent of the argument, is boundless and omnipo-nt; for the Législatúre judged of the necessity of tire cases id also of the natu're and value of tihe equivalent. Such case of necessity and judging too of the compensation, n never occur in any nation; Singular indeed and unto-ird must be the state of things that would induce the Le-slature, supposing they had the power to divest one in-(jividual of bis landed estate, merely for the purpose óf vesting it in another, even upon full indemnification, unless indemnification be ascertained in the manner I shall mention hereafter,

<e But admitting that the Legislature can take the real estate of A. and give it to B. on making compensation ; the principle and reasoning upon it go no farther than to shew that the Legislature are the sole and exclusive judges of the nécessity of the case in which this despotic power should be called into action. It cannot on the principles of the social alliance or of the constitution, be extended beyond the power of judging upon every existing case of necesssby. The Legislature declares and enacts that such are the public exi-. gencies or necessities of the state as to authorise them to take the land of A. and give it to B. The dictates of reason and the eternal principles of justice, as well as the sacred principles of the social contract and the constitution, direct, and they accordingly declare and ordain, that A shall receive compensation for the land. But here the Legislature must stop; they have run the full length of their authority and can go no further. They cannot constitutionally determine upon the amouBt of the compensation or value of the land; public exigencies do not require; necessity does not demand; that the Legialature should of themselves, without the participation of the proprietor or intervention of a jury, assess the value of the thing, or ascertain the amount of the compensation to be paid for it.”

Here I will stop, though the judge continues to make many other remarks of great importance. Let us pause now a little and ruminate on the sentiments here delivered. They áre the genuine effusions of a mind devoted to liberty and ardently anxious to proclaim its true principies to the woi Id. It seeks to recommend them by shewing these principles in their native simplicity ; and are they not worthy in the most exalted degree of the admiration of every citizen ? Would to God I could exhibit them in their most engaging form ! How soon should 1 succeed in repelling the attempts that are inade to cover them in obscurity ! How soon would they be enshrined in l!ie temple of on the affections of the people from every danger ! be enshrined in l!ie temple of our hearts, and guarded

.« No freeman ought to he deprived of his property but hy the‘ verdict of a jury or the law of the land,” is a parí of the clause to be remarked on, which immediately respects the private rights of individuals. Other paits of it I shall pre. sently shew, respect the property of corporations as well as the personal liberty of the citizen. There is no doubt but the convention intended this clause as a restriction upon some of the branches of the government, which might otherwise use the powers prohibited. And what branch of the government was so much to be dreaded as the Legislature ? The authority of the Executive is too confined to have given cause for apprehension, and the authority of the Judges is here asserted, as I shall presently prove, not restrained or diminished. — The things here prohibited cannot be done but in courts of justice regularly constituted, and proceeding according to the known and steady modes of trial, used and practised in ail cases. I have heard if argued, that as the Legislature can make the law of the land by passing an act for that purpose, that therefore this Cause of the bill of rights, if taken as restrictive of the-? power, is of little or ho effect. And can there be a stronger argument to prove, that the term law of the land, lias seme other meaning ? Would the Convention, that wise body of men, when perfecting the'most important instrument that ever came under the consideration of a deliberative body, have intended to restrain the future Legislature, in matters of the most momentous concern, by a provision which they might render nugatory,at pleasure? Is it any way consistent with the dignity of that body or that noble love of liberty which characterised them to attribute to them such language as this: — These are powers too dangerous to be entrusted with the Legislature, and they shall not exercise them; but if they pass an act for the purpose, they may exercise ihem! T he words law of the land, therefore, mean something other than an act of the Legislature. If we resort its meaning to the history of the times in which it was **as^ li3et^ m national instruments, we shall discover its’ genuine signification. It was first used in the 29 th article of the magna charra of England, extorted by (orce Irufm yle anj explicitly declaring the rights of the people in instances in which he had formerly violated them. It declared, n’ot that these rights cund not be forfeited at all, but that they could not he forfeited at the will and pleasure of the executive, nor in oilier manner than by a lair trial in a court of justice by jury, where the facts were disputed, or where the facts were not disputed by such other modes as were agreeable to the law of the land or recognized by it. In either of which cases, the judgment of the regular tribunals of the country "must be pronounced before the party could lose his rights. This was what was then and is now meant by the term law of the land. Sir Edward Coke, in' his 2d Institutes, page 60, expounds this sentence to mean due process of laxo. In Shower’s Parliament Cases and Har-grave's preface to C. upon Litlieton, it.is expounded to refer to such eases as are not triable by the judgment of one’s peers : And Sullivan, page 491 and pagt 493, explains it to mean modes of proceeding to judgment in a court of justice legally constituted ; which inodes are prescribed by law, and take place in cases where the trial by jury cannot be used ; for instance, if the party plead guilty or will not -appear, or suffer judgment by default, or if there be a demurrer upon ti'.e pleadings of the parties where ad matters of fact are truly stated and admitted by both parties, or where the court passes judgment for a contempt committed in the face of tiie court. In page 615, Mr. Suiljvan says, no freeholder shall he disseized of his freehold but by the verdict of a jury or the law of the land, as upon default, not pleading or being outlawed. The meaning then of the term we are considering, was that a man should not be deprived of his freehold, &c. but by the judgment of a court of justice regularly constituted and authorised to decide what tin* law is, and to pronounce it in cases coming before them; which court shall ascertain facts by the verdict of a jury, where proper, or where that would be improper by such other How different is this from means as the law has appointed the idea which makes every act of the Legislature a law of the land and vests in them the arbitrary and despotic power of prostrating ail those rights so dear to mankind whenever they please’ The term “ Saw of the land” had a precise legal meaning when used by the convention, and signified the lawful proceedings of the proper tribunals of the country. How much more for the advantage of the citizen is it, that this should be the meaning of the constitution than the other before adverted to J If a court of.jusMce injures an individual from unjustifiable, motives, the Judge who injures him may be impeached and removed from office; or he may early his case before a superior tribunal j but who shall procure bins redress against the Legislature ? The experience of ages evinces this truth, that the judiciary generally acts with coolness and reason; but it is known to all persons of political experience, that the best and most enlightened men when placed in large assemblies, will so far partake of the licafs of the moment, as frequently to concur in measures, which in their calm and retired moments they find much cause to regret. Had the Assembly the powers which are expressly denied them by this clause of the Constitution, there is reason to fear that many would be the victims of the indiscreet exercise of them. Whose property would be safe, or whose life, if an Assembly, infuriated by the opposition of party, as in the times ofCsesar and Pompe.y, or inflamed by artful accusations, or otherwise roused to act against individuals obnoxious to the public, could deprive them of either without further ceremony than that of passing an act for the purpose, and wiihout more responsibility than to the tribunal of their own consciences? Sue!) times of trouble may come upon us as they have come upon other nations, and it is the interest us well as duty of every good man to shut up as far as possible every avenue to cruelty, injustice and persecution, for w ■ know not upon whom the evil is ts fail.— In such a state of things, with no bridle upon the ¡sa-jjgnant passions, how often should wo hoc the, mask of p itriotisui assumed as the prelude to sacrifice J ,w often should we see our best citizens sinking under ^)e we’o^ of unprincipled prrsecutiou! Who is there jn tlie least acquainted with the excesses into which 11HJJjer{)HS a,,c apt to run, that would be willing to see the dangerous power I am contending against, vested in the Legislature. M ay I never see it yielded to them ; for then will my country be covered vidi the mantle, of mourning, and the spirit of confiscation, like that which appeared to Brutus, will follow on the footsteps of her patriots! Thank God, no man in North-Caroiina can he deprived of his life or property but by the regular judgment of a lawful court, who cannot oppress because they cannot originate any law of themselves, but act upon those made- by others. It is sometimes argued that the Constitution did not mean to hinder the Legislature, but all other persons and bodies of men Tom meddling with the individual rights specified in this 10th article, but that unlimited powers may be safely intrusted with the Legislature. Answer. The Convention clearly thought otherwise ; for the 24th section of the Bill of Rights prohibits the passing of any ex post facto law, and why ? doubtless from an apprehension, that if not prohibited to exercise such a power, it would be used to the injury of individuals. It was equally necessary and essential to liberty, that the property of individuals and their personal liberty should be guarded against the encroachments of the Legislature. This 10th section furnishes that guard, or it is not furnished at all; and this is a consideration which gives additional strength to the argument that this 10th section acts as a limitation upon the powers of the Legislature. As to private property, therefore, I may venture tp affirm it is beyond the reach of the Assembly, and cannot be taken from the owner by any act they can pass for the purpose.

Neither can they take away the property of a corporation. It is remarkable that in the 10th section of the Bill of Rights, the word liberty twice occurs, once in the plural ami again J ' . . , 7 . T. in the singular; no freeman ought to he dtssei&ed of fits a-berths, &c. or deprived of his liberty hit by the verdict of a jiiny or the law of the land. A disseisin of liberties has a legal and technical meaning, well known to lawyers to be altogether distinct from the deprivation of personal freedom or the power of going whither we please ; it regards property and its possessor, while the other phrase, deprived of Ms liberty, regards his freedom from unjust confinement. Disseisin of liberties, must, in the opinion of the convention, mean something different from deprivation of liberty,,otherwise it would not have been used in the same, clause. It is a term which peculiarly signifies those privileges and possessions which corporations have by virtue and in consequence of the instruments which incorporate them. It is defined in 2 Bl. Com. 37, and Sullivan page 516, commentary upon the word liberties, used in the 29th article of the Magna Charta, from whence it has been translated into our Bill of Rights, says “ it signifies the privileges which 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.” It means therefore in our Constitution the possessions and privileges of corporations, and in conjunction with the other words of that article, amounts to this : that the possessions of a corporation, like those of an individual, shall not be taken away .but by the verdict of a jury or the judgment of a court of justice. If then the Trustees of the University be considered in the light of individuals, or of a common corporation, the property which they had acquired could not be affected by any act of the Legislature; nor could it be' taken from them, but by the judgment some proper court, having sufficient jurisdiction, and proceeding according to the known and established law of land.

And if so, I would ask, is the University distinguished to its disadvantage from other corporations ? or is there any circumstance which renders its property less sacred than that of an individua] or common corporation ? It is a correct idea, that where the Assembly are dircc^ by the people in their constitution, to doNany special act, and they do it accordingly, the Assembly are to be con-sj(]ere(] ja rel.ation to that act, as the attornics of the people, appointed to do it, and consequently, that the act itself is to be considered as the act of ihe people: In like manner as a deed executed by my attorney, in my name, is my act and deed and not Ms. Thus if á Judge or Attorney General is ,to he appointed, the Legislature as the at-tornies or agents of the people elect him ; but when he is elected, he is the officer of the people not of the Assembly ? and cannot be turned ot;t of office by them. How is (he case of the University different in principle from the case here put: The 40th section of the Constitution, directs that « A school or schools shall be established by the Legislature for the convenient instruction of youth, with such salaries to the masters tobe paid by the pxiblic as may enable them to instruct at low prices, and all useful learning shall be promoted and encouraged in one or more Universities. Now, when the-Legislature have, pursuant to this direction, erected and established an University, have they any more power over it, than they have over the judges? it not as much the work of the people as if they had es-biished it themselves by the constitution, without (he agen- or intervention of the Assembly ? surely it stands upon same basis as the Legislature itself does. It is as much will of the people, that there should be an University, that it should continue, as it is that there should be a Legislature. When the Legislature endowed it, they did as the organs of the people, and they cannot avoid the before they have received an authority from the peo-as express for its dissolution, as they had for its establishment. It may be said, the Assembly are directed to establish schools, and one or more Universities ; but not endow them, and th^i therefore they alone and not the people, have given the escheated and confiscated lands to the University. I answer, whenever a principal thing is directed to be done, all the necessary means of.doing it are given to the agent. An University cannot be established without funds, and therefore it is necessarily implied that they are to provide funds for it, as well as pass a law for bvinging it into existence. When the Assembly accordingly pointed out the escheated and confiscated property for this purpose; it from that nrnment became a gift of-the people, ratified through the' medium of their organ the Legislature | which none but the people assembled in convention can resume; It has been said this is a public institution for public purposes, and therefore is subject to the power of the Legislature, which is intrusted with the superin-tendance of all other public concerns within this state :

I answer, the University like the seat of government is... JnstiHited for public purposes; but like that, is ordained by the constitution for this very reason, that it may not be subject to the vicissitudes of legislative opinion. The Legislature may regulate all thing? which pertain to the seat of government, but they cannot abolish it. So it is with respect to the University, they cannot abolish it, nor do any act which has a direct tendency to that end, such as taking away their funds. All that I need insist upon, however, is ibis.: that they cannot abolish the University itself — a position which none will deny. Then it is on the same footing as other corporations, .and the 10th article of the bill of rights secures all its property under the words «no freeman shall be disseised of his liberties,” &c. but by the law of the land. To avoid this consequence, it must be assumed, not only that the University is.undei the government of the Assembly, but also that its existence is dependant on their pleasure; for if like other corporations, its existence is independent '>f the Legislature, then so is its property, for that is secured1 by1 the same words which secures the property of other corporations. If the idea were correct, that they who can create can destroy, it would answer no purpose to the advocates for the power of the Assembly; unless they could a]30 sl!ew that the University is a creature of the Assembly. It is a creature of the people, who have used the As-as an agent to effectuate their will 5 which having once done, their authority upon this subject has ceased for- , . ever. The convention intended the University should he a permanent institution; and therefore they have riot left it to the discretion of the Legislature, but as a matter of the utmost moment 5 they have inserted it in the constitution ; and directed its creation, to the end that being a constitutional and not a legislative establishment, it should not be liable to those changes, which time produces in the conduct of Legislatures.

To say the least, the University is a corporation, as independent as other corporations are, and of course entitled to be as secure against the encroachments of the Legislature upon its properly and effects. Bat considering it as established by the people, and rendered sacred by a place in our constitution, for the very purpose of perpetuation, it seems impossible to doubt upon the subject before us, or to run the risque of mistake, in pronouncing, that the Assembly have no rigid to interfere with its property of any kind/ It is not true that whoever can create can destroy. In England the king can create and usually does create corpora- • tions; but he cannot destroy them at pleasure. My lord Coke, in his II Reports, page 99, gives us the reason. No freeman says he, of a corporation can be removed, but upon conviction by course of law 5 for he adds it is provided by Magna Charta, C. 29, that no one shall be disseized of his liberties, but by the judgment of his peers or the law of the land; and 4 Report 57, proves that the king who created, can no otherwise proceed to the dissolution of a corporation, than by a due course of law, and by obtaining a regular judgment for that purpose. The same doctrine is held, 1 Bl. Com. 485. Then' it does not follow that because the Legislature could create, therefore it could destroy the Lniversity and take away its property. But it does follow that if the words used in Magna Charta, as restrictive 0: the power of the executive, are.used also in our bill of rights as restrictive of the power of the Legislature, that they must confine the Legislature licire in the same.manner they do the exccuiive in .England; and consequently that the Legislature cannot interfere with the University,' otherwise than by submitting to the judiciary of the country, whether or not they have been guilty of any such acts as. will in law amount to a forfeiture of their property, or toa dissolution of the body, constituted for the superiritendance of its affairs. Upon this view of the case 1 submit to the court that the law in question is against the constitution and void.

Locke — Judge

delivred .opinion of the court.-— The Legislature of North Carolina in the year 1789, grant- ■ cd to the Trustees of the University “ all the property that has heretofore or shall hereafter escheat to the,,state,” ^(a) And by another act passed in the year 1794, they also granted; “ The confiscated property then unsold.”, ^(b) By aii act passed in the year 1500, they declared, “ that from, and after the passing.of this act, all acts and.clauses of, acts, which have heretofore granted power to the Trustees of the University, to seize and posses* any.escheated or coin fiscated property, real ór personal, shall he and the same is hereby repealed and made void.

(t-‘Andie it further enacted, That all escheated or confiscated property which the said trustees, their agents or at. torriies have not legally sold by virtue of the said laws, shall from,hence revert to the state, and henceforth be consider-, ed as the property of the same, ,as though such laws had never been passed.” — ^(c)

The Trustees of the University in pursuance of the powers vested in them by the act of 1789, have brought this suit, to recover the possession of a tract of land escheated to the state, before the passing of the repealing act in the year 1800. The defendants have pleaded this repealing act jn bar, by which they allege the power of the trustees to support this action is entirely destroyed. It- is therefore considered how far the Trustees have title tinder the act of 1789, and in the next place, how far they are diof that title by the repealing act of 1830. ■ .■

To determine the first question, it may be necessary to take into view the objections stated to the title of the Trus-teesi independent of the operation of the repealing act, and these are two: first, that no title to escheated lands' vests in the state until an inquisition or office found ; and secondly,' that if the state had title, yet the Trustees have derived none by the act of 1789, because the state attempted to convey the right by act of Assembly and not by grant as required by the 36th section of the Constitution. . With regard to the first objection, the court think it a sufficient answer to say, that on this subject the láw has been suppoS* ed to be long settled, as this objection hás been made in almost every suit heretofore brought by the Trustees of the University, and always overruled. The court approve of’ the decisions upon this point, and will observe the ancient and wise maxim « stare decisis.” 2 Black. 245, 2 Co. Rep. 52.

As to the second objection, the words of the constitution are, « all commissions and grants shall run in the name of the State of North-Carolina and bear test and be signed by the Governor,” &c. It seems to be a fair and clear exposition of this part of the constitution to say, that when the stale conveys land by grant, the grant shall liave the requisites prescribed, to’ wit, run in the name of the state,' bear teste and be signed by the Governor, &c. and that alb grants otherwise authenticated shall be void. It became necessary that the officer, whose duty it shall be to sign and authenticate grants, should he pointed out, and that their form and substance should be ascertained, in order to give uniformity to such grants and to avoid that variety which would be produced by the judgment of different officers* But the court see nothing in this clause restricting thé Legislature to this singly modo of conveyance ; they are left free from any control in the mode or manner of ing their property, unless they should adopt the one pointed out in the constitution, and then the form and ceremony are ' , .... _ _ _ prescribed. Tins opinion is warranted not only by the pressions contained in the clause itself, but by the many and repeated acts of Assembly passed, since the making o.f the Constitution, for the, purpose of transferring property. Many of these acts have been mentioned and referred to by the counsel for the lessors of the plaintiff. We are therefore of opinion that tl>e land in question vested in the state without an inquisition or office found, and that the Legislature were competent to pass the interest in the same to the Trustees of the University by the act of 1789 ; and that the Trustees have a good and valid title, unless the operation of the repealing act of 1800 has destroyed it.

The operation of this act is next to be considered ; and ¡f may be necessary to premise, that the people of North-Carolina, when assembled in convention,.were desirous of h iving some rights secured to them, beyond the control of the Legislature, and these they have expressed in the bill of lights and the constitution. The preamble to the constitution states among other things that « we the representatives of the freemen of Nortli-Carolina, chosen and assembled in Congress for the express purpose of framing a constitution, under the authority of the people, most conducive to their happiness and welfare, do declare, &c.” Section 13th directs the General Assembly to elect several officers of state. Section 15th, directs the election of, a Governor. Section 38th, directs, that there shall be a Sheriff, Coroner or Coroners and Constables in each county. It became neces-savy for the Legislature to appoint these officers or to pass such laws as would secure to the people such officers as would carry this form of government into effect. The framers of this instrument appear to have been well sfbquainted with the importance and necessity of education, -and lest this object might escape the attention of the Legislature or be by them neglected^ section 4ist declares, “ That a school or schools shall be established by the Legislature for' the convenient instruction of youth, with such salaries to the masters paid by the public as may enable them to instruct 4 * 1, J 1 at low prices; ami áli useful learning shall be encouraged an(| promo|-¿t¡ ¡n one or more Universities’.” ‘By this si’ction as strong an injunction was imposed on the Legislature to establish an University as by the preceding clauses to appoint the several officers of government; these objects'seem to be regarded by the framers of the constitutiori'with equal solicitude; they have therefore in the same imperative style declared that there shall be an University',1 and that thoro shall be a governor, leaving to the Legislature to make such appropriations and create such funds for the endowment of, the institution as would- be sufficient- to effect the purposes, for which it should be established- ‘ In the year 1789, the Legislature obeyed this’constitutional injunction and made an appropriation of escheated lands and appointed Trustees for the management of the concerns of the institution. By the act of 1800, the Legislature declared that this property should be taken from the Trustees and revert to the state. Is then this last act authorised by the constitution, or does it destroy a right which that instrument gave to the people, * right highly .esteemed in all civilized nations, that of edu-eating their youth at a moderate expense? a right.of acquiring knowledge and good morals, which have always been deemed most conducive to the happiness and prosperity of a people?

Some light will be thrown upon this subject by examining the nature of corporations, how property can be taken • from them, and how they can be dissolved. Corporations are formed for the advancement of religion, learning, cbiti-naerce.or other beneficial purposes. They are either aggregate 05 sole, and created by grant or by law. When they ^re once erected, they acquire many rights, powers, capacities .amf some incapacities, 1 Black. 495, as 1st, to have perpetual succession and therefore all aggregate corpora-dons have necessarily the power of electing members in the .room of those who die, to. sue and be sued and to do all oilier acts as natural persons. 2d. to purchase lands and to hold them for the benefit of themselves and successors, ■ 4th to nave a common seal. 5th. to make bye-laws for the Better government of the corporation. These corporations' cannot commit' crimes, although their members may in their individual capacity. The duties of those bodies consist iri acting up to the design-for which they were instituted. Let us next enquire liow their corporate property can be taken from them and ho.w they may be dissolved. A member may be disfranchised or lose bis place by his own improper conduct, or he may resign. A corporation may be dissolved by act of Parliament, which is boundless in its- operation; by the natural death of ail its members, in case of an aggregate corporation ; by surrender of its franchises into the hands of tljekiog; which is a kind of suicide; by forfeiture bf* its charter through negligence or abuse of its franchises, in which case the law judges the body politic to have broken the conditioh on which it was incorporated, and therefore the incorporation to be void ; and the regular course is to bring an information in the nature of a quo Warranto» to enquire by what authority the. members now exercise their corporate power, having forfeited it by such and such proceedings. 1 Bla.dc. 485, S Black. 2C3. None of these'prerequisites have been done in the present case. — We are then led to enquire into the soundness of an argument greatly relied on by the defendant’s counsel, that those who create can destroy. The Legislature have not pretended to dissolve the Corporation, but to deprive them of a part of the funds, that were deemed to be vested in them, and to transfer those funds to the state. In England the king’s consent to the creation of any corporation is absolutely necessary, either given expressly by charter or by'act of Parliament, where his assent is a necessary ingredieht or implied hy prescription. 1 Black. 472, 473. ‘The king may grant to a sub. ject the power of erecting a corporation; and yet -it is the king that erects, the subjectjsbut the instrument. '1'Black» 474, Where there is an endowment of lands, the law dis-linguistics and makes two species of foundation; the first, mcipiens, or the corporation ; in which sense the king -‘s ‘he founder of ail Colleges and Hospitals : the other, fundado prof.dens, or the dotation of it, in which sense the first gift of the revenues is the foundation, and who gives them is the founder : 1 Black. 4¡3t. — The constitution directed the General Assembly to establish this institution and endow it; then it would seem from the principle upon which all this doctrine is predicated, that the constitution and not the Legislature bad erected this corporation; the Legislature being only the agent or instrument, whose acts are valid and binding when they do pot contravene any of the provisions of the constitution. We view this corporation as standing on higher grounds than any other aggregate corporation ; it is not only protected by the common law, but sanctioned by the constitution. It cannot he considered that the Legislature would have complied with this conslituiional requisition, by establishing a school for a month or any determinate number of years, and then abolishing the institution ; because. the people evidently intended this University to be as permanent as the Government itself. It would not be competent for the Legislature to declare that there should be no public school in the state, because such an act would directly oppose that important clause in the constitution before mentioned. But if the Legislature can deprive the University of the appropriated and vested funds, they can do that which will produce the same consequences ; for deprive the institution of funds already vested and refuse to make any additional appropriations, there never can exist in the state a public school or schools ; and thus the Legislature may indirectly effect that purpose, which if expressed in the words before mentioned they conld not do. Besides, whew the Legislature have established an University, appointed Trustees and vested them with property which they were hold in trust for the benefit of the institution, have they discharged t heir duty as the agents of the people and transferred property which is afterwards beyond their corf-trol ? — From that moment the Trustees became in some measure the agents of the people, clothed with the power of disposing of and applying the property thus vested to the uses intended by the people, but over which the power of the Legislature ceased, with the discharge of the constitutional injuuc'hu); unless it might he necessary in the course of time to make other or further appropriations to continue and support the institution : and this we consider to bo their duty at all times, when such necessity shad exist, that the exportation ox the people, as expressed in the constitution may not be disappointed.

But one great and important reason whicli influences us in deciding this question, is the 10th section of the bill of lights, which declares “ that no freeman ought to be taken/ imprisoned, or disseized of his freehold, liberties or privile-. ges, or outlawed or exiled, or in any manner destroyed or deprived of his life, liberty nr property, but by the law of the land.” — It has been yielded on the part of the defend-, ants that if the Legislature had vested an individual with the property in question, this section of the bill of rights would restrain them from depriving him of such right: but it is denied that this section has any operation on corporations whose members are mére naked Trustees, and have no interest in the donation, and especially on a corporation erected for a public purpose. It is also insisted that the term,« Law of the Land,” does not impose any restrictions ón the Legislature, who are capable of making the Law of the Land, and was only intended to prevent abuses in the other branches of government. That this clause was intended to secure to corporations as well as to individuals the rights therein enumerated, seenis clear from the word “ liberties,” which peculiarly signifies those privileges and rights which corporations have by virtue of the instruments which incorporate them, and is certainly used in this clause in contradistinction to the word “ liberty” which refers to the personal liberty of the citjzen. We therefore infer that by this clause the legislature are as much restrained from affecting the property of corporations, as they are that of a private individua!, unless the expression, “Law of the Lan(j j> slioultf receive the construction contended for on the * part of the Defendant. — It is evident the framers cf the ; l- 1 , . constitution intended the provision as a restraint upon some ^,..,^¿1, 0f t!10 government, either the Executive, Legisla" tive, or Judicial. To suppose it applicable to the executive would be absurd on account of the limited powers conferred .on that officer; and from the subjects enumerated in that clause, no danger could bcapprehended, from the Executive Department, that being entrypted with the exercise of iio powers by which the principles thereby intended to be. secured could be affected. To apply it to the Judiciary, would, if possible, be still more idle, if the Legislature cair make the « Law of the Land.” For the J udiciary are only to expound and enforce the law and have no discretionary powers enabling them to judge of the propriety or impropriety of laws.' They áre bound, whether agreeable to their ideas of justice or not, to carry into effect the acts of the legislature as far as they are binding or do not contravene the constitution. If then this clause is applicable' to the. legislature alone, and was intended asa restraint on their acts, (and to presume otherwise is to render this' article a dead letter,) let us next enquire, what will be the operation which this clause wiii^or ought to have on the present question. It seems to ús to warrant a belief that members of á corporation as well as individuals shall not be bo deprived of their liberties or property, unless by a trial by Jury in a court of Justice, according to the known and established rules of decision, derived from the common law, and such acts of the Legislature as are consistent with the constitution — and although thé Trustees are a corporation established for public purposed* yet their property is as-completely beyond 'the control of the Legislature, as the. property of individuals or that of any other corporation, Indeed, it seems difficult to conceive of a corporation established fox1, merely private purposes. In every institution of thát kind, the ground of. the establishment is some public good of purpose intended to be promoted $ but in many, tha members thereof hare, a private interest, ^coupled with the public object. In Ibis case,'.the trustees have vate interest beyond the general good: yet we conceive jthat circumstance will not make the property of the tees subject to the arbitrary will of the Legislature, The property vested in the Trustees must remain for the uses intended for the. University, until the Judiciary of the country in the Usual and common form, pronounce them guilty of such acts, as will, in láw^ amount to a forfeiture of their rights or a dissolution of their body. The demurrer must therefore be allowed, and the plea in bar ovcruL ed,

Hall —Judge

—Contra.—A aquestion of more importance than that arising in this case, cannot come before a court. It is nothing less than one branch of the government undertaking to decide, whether another branch of the same government has or lias not transcended its constitutional powers $ a question which in its discussion should at all times command the best energies of the head and heart» When this shall be the case, although a difference of opinion may sometimes exist, it will be an honest one, and cannot fail to find its remedy in .mutual tolerance and concession. But well convinced, indeed, ought one person to be of another’s error of judgment, before he passes sen-tcncc of condemnation on it, when he reflects that each has given the same pledges to support the constitution. Before a law enacted by the legislature should be pronounced unconstitutional, it ought to appear to the court to be palpably so : if an honest doubt can be entertained on the subject, we pwe it to ourselves as well as to the legislature, to carry it into effect. . Far be it from me, if it p?ere in my power, to damp that laudable and honest zeal, which cha-racterised the argument of the defendant’s counsel; it cannot be too much extolled or too widely circulated: but I speak it with deference to the opinions of my brethren, that I think, occasions might occur, when its influence would be more happily felt and lead to more useful and correct re-suits. In the opinion which I have formed on this question I am probably mistaken, as I have the misfortune to differ from the rest of the court: but from the best consideration . . , ,. , I can give to it, I am bound to say, that I behove the law in qUeg^on jg uq! unconstitutional.

I feel no disposition to controvert many things urged in argument by the defendant’s counsel; he has had recourse, however, to one argument, which I think militates against him. It is drawn from the41st section of our constitution, which is in the following words : “ a school or schools shall be established by the Legislature, for the convenient instruction of youth, with such salaries to the masters, paid by the public, as may enable them to instruct at low prices : and all useful learning; shall be duly encouraged and promoted in one or more Universities.” He endeavours to strengthen his general proposition, namely, “That any law taking away the property of an individual or a common corporation is unconstitutional,” by stating, in addition, that there was a constitutional obligation on the Assembly to set apart funds for the support of the University; and if it were constitutional and right for them to do so, it is unconstitutional and wrong to take away those funds. If the framers of the constitution intended by that seciion that the Legislature should establish'one or more Universities and schools, and vest in them certain funds, which might be deemed sufficient at the time for their support in a constitutional view; if it were intended that by doing this, the Legislature had completely discharged their duty, and had nothing more to do with such schools and Universities,1 whatever misfortunes might afterwards attend them, there might be something in the argument. I think, however, this section of the constitution was intended for a very different purpose. It became the duty of the Legislature, created by and acting under that constitution, to establish seminaries of learning, with salaries to the masters, &c. and afterwards to support and cherish them as long as the constitution shall exist. If by accident the funds set apart for their eiijjpovt should be destroyed, it would be the duty the Legislature to endow them with others. The Legisla-3 ture is the constitutional guardian of these seminaries of learning, and should at all times keep them under their in-spcction and control. This is a duty which they cannot de. legate or transfer to any one, and can only end with the constitution itself. Suppose then, that property should be given tó the Trustees of the University (whom I consider, in no other light than as agents of the Legislature,) which property was not very productive, but sufficiently so for the' support of the University; and afterwards it were to become so much so, that one third of. the profits arising from it, would be adequate to the wants of the institution, who would have a right to the surplus ? — Let us reverse- the case and suppose the profits of property given to the Trustees to decrease or fail altogether; would it not be the duty of the Legisture to provide other funds or give other property which would be sufficiently productive ? I think it would. If so, can it be doubted, but that the surplus profits would be at the disposition of the Legislature ? It may be said that the Trustees have no surplus funds, that the profits of their property are not equal to the wants of the institution. That may be the case 5 but who is to judge of it ? I answer, not this court: the constitution gives it no such power. The Legisture must, be the j udge. It would be going too far to say, that there was a constitutional obligation on the Legislature to do a certain thing, and that this court and not the Legislature should decide when it was properly done. If, then, the Legislature must judge how large the funds of the University ought to be, add to them when they.., are too small and take from them when too large, this court, are not the proper judges in such cases : and if not, how can we undertake to say that the law in question is unconstitutional ? It cannot, I think, be denied that the General Assembly have a right to take from the Trustees property of which the University stands in no need, and that f0P the best of reasons; because they are bound to furnish it with additional funds, as those which it already possesses decrease, or as its wants may increase. 1 have said that the General Assembly cannot delegate this constitu-_ . , " tional power; that is, that they cannot, by giving to the Trustees any quantity of property or any given sum of money exonerate themselves from the trust and confidence which the constitution reposed in them. ' It is true they may appoint Trustees as their agents Co act for them, and tlicit Trustees or agents are amenable to them for their conduct; they have a naked authority without any interest. The law' can have no hearing upon them as individuals; it can Only affect them in their public character as Trustees. And'' how is it to do this ? They were entrusted with property' for the purpose of supporting an University in conformity with the directions of- the constitution, and the General Assembly are about to take this property from them, which they contend they have no bight to do?!If the Assembly arc hound in any event to furnish' funds 'to support the University, they have a right to takeaway surplus funds. If it be said that the property in question is not of that description, I answer, who are to judge of' this, but the General Assem-, lily, on whom there is a Constitutional obligation to establish and superintend an University ? On the Trustees, no such, obligation is imposed: they are the mere agents of the Legislature ^ and as wrnll might it he said that any other citizens equal in number to the Trustees should be placed paramount to the Legislature. I therefore can see no analogy between this cash and that of a gift made to an individual or to an ordinary corporation. My opinion upon the whole case, is founded upon the provisions of the constitution, and regarding the Trustees as mere agents for the management of the concerns of the University under the direction of the Legislature, I think the demurrer should he overruled and the plea in bar sustained,

(a) Ch. 21, Sec. 2

(b) Ch. 3, Sec. 1 —

(c) Ch. 5.