
    The Rev. John Bracken v. The Visitors of Wm. & Mary College.
    [Wednesday, December 8, 1790.]
    William and Mary College — Visitors—Powers.—The Visitors of Wm. & Mary College have power to change the schools, and. put down professorships.
    Eleemosynary institution — Mandamus.—A writ of mandamus will not lie in the case of a private Eleemosynary foundation, if there be a Visitor.
    William & Mary, in the fourth year of their reign, granted a charter of incorporation to Francis Nicholson and others, for the foundation of a College in Virginia, to bear their name.
    *The introductory part of the charter is in these words: “For as much as our well beloved and faithful subjects constituting the General Assembly of our colony of Virginia, have had it in their minds, and have proposed to themselves, to the end that the church of Virginia may be furnished with a seminary of Ministers of the Gospel, and that the youth may be piously educated in good letters and manners, and that the Christian faith may be propagated among the Western Indians to the glory of Almighty God, to make, found and establish, a certain place of universal study or perpetual College of divinity, philosophy, languages, and other good arts and sciences, consisting of one president, six masters or professors, and an hundred scholars, more or less', according to the ability of the said College and the statutes of the same, to be made, increased, diminished or changed there by certain trustees, nominated and elected by the General Assembly aforesaid, to wit: our faithful and well beloved Francis Nicholson, &c., gentlemen, or the major part of them, or of the longer livers of them on the south sidé of a certain river, '&c. ”
    The first section of the charter ‘ ‘grants that the said Francis Nicholson and others, or a major part of them, or of the longer livers of them, for promoting the studies of true philosophy, languages, and other good arts and sciences, and for propagating the pure Gospel of Christianity, only mediator to the praise and honoi of Almighty God, may have power to erect, found and establish, a certain place of universal study or perpetual College, for divinity, philosophy, languages’ ánd othér good arts and sciences, consisting of one’ president, six masters or professors, and an hundred scholars, more or less, graduates and non-graduates as above-said, according to the statutes and orders of the said College, to be made, appointed and’ established upon the place by the said Francis Nicholson, &c., or the' major part of them, to continue for all times coming.”
    *The second section enables the trustees to take property, real and personal, and to transfer it to the president and masters, or professors of the College'.
    The fourth section gives to Francis Nicholson and others, and their successors, or the major part of them, jlower to elect and nominate other ' fit persons'into the places of the masters or proféssors of the said College; and, that after the death) resignation, or deprivation of the .said president or professors, or any of them, the said Francis Nicholson, &c., and their successors, or a major part of them, shall have power to put in and substitute ' a fit person or persons, from time to time, into his or their places, according to the orders and statutes óf the s?.id College, to be made, enacted and established for the good and wholesome government of the said College, and of all that' bear office or reside therein by the said Francis Nicholson, &c., or their successors, 'or the major part of them.
    The fifth and sixth makes' the president and masters, or professors and their successors, a body politic and corporate, with power to sue and be sued, and to take property of every sort..
    The ninth section constitutes the said Francis Nicholson, &c., and their successors, true, sole, and undoubted Visitors and Governors of the said College, forever, with full and absolute liberty, power and authority of making, enacting, framing and establishing such and so many rules, laws, statutes, orders and injunctions, for the good and wholesome government of the said College, as by the said Francis Nicholson, &c., and their successors shall, from time to time, according to their various occasions and circumstances, seem most fit and expedient. All which rules, laws, statutes and injunctions so to be made as aforesaid, we will have to be observed under the penalty therein contained: Provided, notwithstanding, that the said rules, &c., be no wajT contrary to our prerogative royal, nor to *the laws and statutes of our kingdom of England, or our colony of Virginia aforesaid, or to the canons and constitution of the Church ■of England, by law established.
    The twelfth section enables the Visitors to convócate and hold a certain Court on convocation, -where they may treat, confer, consult, advise-and decree, concerning statutes, orders and injunctions for the said College.
    The fifteenth section gives to the trustees a revenue on tobaccoes exported, to be transferred by them to the president and masters or professors.
    The sixteenth section confers on the trustees the office of survej'or general, to be transferred to the president and masters or professors. •' -
    The seventeenth confers a large quantity 'of land. ■ ■ ■
    The eighteenth section gives the presi-detit and masters, and their successors, a right to elect a member to represent them in the Assembly of Virginia.
    On the 27th day of February, in the 2d year of the -reign of George 2d, (1728,) James Blair and -Stephen Fouace, the surviving trustees, transfer the College property to the president and masters or professors of the College.
    Sundry statutes were enacted, which are certified under the College seal, and completed by James Blair and Stephen Fouace, the maj'or part of the surviving trustees, on the 24th day of June, 1727.
    ' One of these statutes, having recited the intentions of the founders of the College, proceeds thus; - “For carrying on ■ these noble designs, let there be four schools assigned' within- the College precincts, of which, together with the masters or professors belonging to them, some directions must be given.
    ' *‘ ‘The Grammar School. To this school, belongs a • school master, and if the number of scholars requires it, an usher. The school master is one of the six masters of whom, with the President and scholars, the college consist.”
    Ip this Grammar School, let the latin and greek tongues be well taught.
    A statute concerning the ordinary government of the college, enacts, that it shall be in the President and six masters, viz. the two professors of divinity, and the two professors of 'philosophy, and the master of the grammar school, and the master of the under school.
    The last statute contains the following clause. — “For as much as the yearly income of the college for the present, is so small, that it cannot answer all the above appointed salaries and the other things that there will be occasion to expend; many things are from time to time, to be left to the discretion of the governors of the college; that according to the circumstances of the college for the time being, they may entirely cut off some salaries, particularly those of the Hebrew professor, and the usher of the grammar school; and for a time, may lessen the salaries of some other professors and masters, in proportion to their service and residence, but when the college revenues increase and will bear it, they are all to be fully and timely paid.”
    After approving and confirming the foregoing statutes, is this reservation: “Reserving notwithstanding the power given by the charter to the Visitors and Governors of the same college, namely, that proceeding regularly, they may add new statutes, or may even change these, as their affairs and circumstances may from time to time require. ’ ’
    *The Assembly of Virginia had passed acts, granting to the college a duty on hides, and skins, and furs, exported, and on spirits and wine, imported into this country.
    The statutes for the government of the college, and all the proceedings of the Visitors are read and confirmed at a second meeting.
    At a meeting of the Visitors on the 3d of December, 1779, leave was given to bring in a statute for reforming the college.
    At a meeting of the Visitors on the 2d of September, 1782, the following resolution was entered into:
    The proceedings of a convocation, held on the 4th of December, 1779, and also the proceedings of another convocation, held on the 27th of March, 1780, not being recorded, which circumstance renders it uncertain, whether the former have been approved, and prevents any measure being taken on the latter: Resolved, that the Rector be desired to cause the Clerk of this convocation, to draw up the proceedings of the several convocations aforesaid, at full length, in order that they may be laid before the meeting of the next meeting.
    At a meeting on the 26th of March, 1784, the following resolution was adopted:
    Whereas, a statute for reforming the college was passed by the convocation on the 3d of December, 1779, and was again read and confirmed on the day next following, which statute, through the neglect of the Clerk, was not recorded, and the statute itself has been since lost, but the material parts were published in the Gazette at the time, agreeable to the following extract: And whereas, such of the members now present, as were in convocation at the time of passing the said statute, do perfectly remember that the original was strictly agreeable to *the said transcript, Resolved therefore, that the following, viz. “At a convocation, &c. (here follows the statute as published at the time of its passage in the Gazette,) be now recorded as a just extract from the statute passed on the said 4th of December, 1779.
    “In that statute are, among others, the following clauses. Let there be therefore, six professorships, the first of which, shall be law and police; the 2d, anatomy and medicine; the 3d, natural philosophy and mathematics; the 4th, moral philosophy, of nature and of nations, and the fine arts; the 5th, the laws, modern languages, and the 6th, for BrafEerton.”
    The grammar school shall be discontinued.
    Though this is termed an extract from the statute in the resolution of March 1784, ’tis in its form obviously a complete statute.
    At a meeting of the Visitors on the 1st of April, 1777, Mr. Bracken was appointed grammar master and professor of humanity. He was removed by the statute of the 4th of December, 1779, and, in October, 1787, a rule was made in the General Court, on the Governors or Visitors of the College, to show cause on the third Saturday of the-following term, why a writ of mandamus should not be awarded, to cause them to restore Mr. Bracken to his place and office of grammar master, and professor of humanity.
    Counsel having been heard, the case was adjourned, on account of difficulty, to this Court.
    Marshall, for the College. Contended:
    1st. That a mandamus was not grantable in such a case as this: And,
    2dly. If the Court could take jurisdiction, still a mandamus ought not to be granted, because the Visitors or Governors had not exceeded the powers given them by the charter.
    *The Court have no jurisdiction of the subject in the form the case now wears, because this is a mere Eleemosynary. institution, with Visitors appointed for its government and direction. [Philips v. Bury,] 1 Ld. Raym. 8, [Skinner, 447,] Comb. 143; [The King v. The Bishop of Ely,] 1 Wm. Black. Rep. 82; Sir T. Jones, 175, Hard. 218, Andrews, 174, and [The King v. The Bishop of Chester,] 1 Wm. Bl. Rep. 24. (Mr. Marshall was here stopped, and the position that a mandamus will not lie in the case of a private Eleemosynary institution, where Visitors were appointed, was admitted to be law.)
    This is an Eleemosynary institution. It comes completely within the description of Chief Justice Holt, in the case of Philips v. Bury, 1 Ld. Raym. 8. It is founded on charity. That the donations proceeded from the King and from the government, is perfectly immaterial, as Visitors are appointed. Colleges are considered as mere Eleemosynary institutions, as entirely as hospitals. Comb. 268.
    But, if the Court have jurisdiction, it ought not to issue a mandamus, because the Visitors have not exceeded the powers given them in the charter.
    The charter establishes one president and six masters or professors for divinity, philosophy, languages and other good arts. It is not necessary, under the charter, that a grammar master should form a part of the system. The professor of modern languages satisfies its requisitions. The Visitors or Governors have power to make such laws for the government of the College, from time to time, according to their various occasion and circumstances, as to them should seem most fit and expedient. The restraining clause annexed, serves to shew the extent of the grant: “Provided that the said laws, &c. be no way contrary to our prerogative royal, &c.” Their power of legislation, then, extended to the modification of the schools, in any manner they should deem proper, provided they did not depart from the great outlines marked in 1 j the charter; which are divinity, philosophy, *and the languages. It was proper, that this discretion should : . be given to the Visitors, because a particular branch of science, which at one period of time would be deemed all important, might at another, be thought not worth acquiring. In institutions, therefore, which are to be durable, only great leading and general principles, ought to be immutable. . ■ .
    If, then, the Visitors have only legislated on a 'subject upon which they had a right to legislate, it is not for this Court to en-quire, whether they have legislated wisely, or not, and if the change should even be considered as not being for the better,, still •it is a change; still the grammar school is ■lawfully put down; and there can be no mandamus to restore a man to an office, which no longer exists. One -of the statutes, enacted by the trustees, themselves, authorises the Visitors to change even those very statutes, one of which creates the grammar school. : - : ;
    John Taylor, contra.
    The merits of the case arise out of the charter of William & Mary College; and I shall endeavor to prove, 1st. That the College is a corporation for purposes of further government. 2d. That the visitorial power is defined and limited by, and subordinate to, the charter, transfer, and original statutes. 3d. That this visitorial act exceeded their power. !
    li The charter is the magnet, from whence- every part of this business must take its' direction. It is the constitution of the College, and, like all other .constitutions, ought to be preserved inviolate; In this instance it must'be preserved inviolate for the benefit of all párties,' because its destruction will take from both' sides the subject of controversy. A nation may violate its constitution, and erect another; but a subordinate body politic can do no such thing. These have particular • ■ ^members possessed of rights, in the .enjoyment of which every member is protected, in every kind of government. What such rights are, in this case, is to be learnt from the charter. This charter is' addressed to Francis Nicholson and seventeen other persons. It states its intention to be, '“to make, found and establish, a certain place ■ of uni versal study, or perpetual College of divinity, philosophy, and other arts and sciences, consisting of a president, six masters or professors, &c. ” When we go into the charter, we shall find it drawn with peculiar care, and worded with the most exact precision; we shall find, that it fixes some things unalterably; that- it delegates the fixing of other things, to the said Nicholson and others, or the survivor, excluding successors: And that it delegates a power of forming regulations from time to time, as to things not absolutely determined, to the said Nicholson and others, and their successors.
    2. From these materials, I am to prove that the visitorial power is defined and limited by, and 'subordinate to, the charter, transfer, and original statutes.- And it must be so, if there is any thing fundamental in the College constitution. This charter erected three branches of government, for the body politic and corporate, to which it gave existence, whose rights were separate and distinct, and in most instances independent of each other; 1st. The trustees. 2d. The Visitors and Governors. 3d. The president and masters-. These three estates are, in fact, created by the same instrument; for, although the masters were not nominated in it, yet the trustees could have been compelled in Chancery, by a process in the name of the Attorney General, to have proceeded to a nomination. In this, as in all other things relating to their trust, -they had a bare and naked power, which they were obliged to pursue strictly, and so soon as they had executed it, the masters were erected into ■ a body politic and corporate, and derived their rights from the charter itself, and not from the trustees; The charter then creates three collateral ‘branches; *and to suppose that one creature of a political regulation, has a right to destroy another creature of the same political regulation, is a doctrine diametrically opposite to the fundamental maxims-of our present and former government. A house of commons or a house of delegates, may impeach a member of their own, or other- orders, as a master might be tried and deprived before the order of Visitors, but the order of Visitors are no more entitled to annihilate the order of masters, because they can trjr a member of that order, by virtue of their special visitorial powers, than the house of lords could -abolish the house of commons, because thes' can try a member of that order, in virtue of the powers annexed to their own order.
    The Visitors, as to the nomination of the masters, so as to keep up the- succession of that body politic and corporate, w-ere also trustees, and might have been compelled, either by mandamus, or in Chancery, to proceed to such nominations. Otherwise, it would be in their power to destroy this incorporated society-at any time, although all the powers entrusted to them, were intended to support it. Whence do the Visitors derive 'any authority to act at all in that character? From the charter. If, therefore, their acts are not warranted by that charter, they' are .void; because they can derive their obligation from no other source. This observation is conclusive: As the Visitors could not create, neither could they annihilate. In the creation, the Crown used the medium of trustees. It was necessary that the work of the trustees should be completed, before the visitors could act at all. The very term visitors implies so much: Something was to be visited. This something was the College establishment, as fixed by the charter and the trustees. It was to be visited, for the purpose of supporting it, according to the laws of the founder, not for the purpose of subverting those laws. I am, therefore, clear, that the visitorial authority, deriving its existence from, is limited *by, and subordinate to, the charter, transfer, and original statutes.
    3. The next question is, whether the vis-itorial act of 1779, exceeds their powers as limited by the charter?
    Every word of this instrument proves, that it was intended to be, as, if valid, it would be, an utter and entire abolition and abrogation of the College constitution.
    The preamble gives the reasons for granting this new charter; one of which, ‘ ‘that the rarer parts of science are more immediately subordinate to the leading objects of society,” the original founders of the College seem not to have had in contemplation.
    This new instrument does, either expressly or virtually, repeal the old charter, or constitution of the College, in a variety of instances.
    1. The old charter has the support of religion for an object. The modern one deserts it.
    2. The old constitution appoints a professor of religion. The modern one exchanges it for the 1 ‘rarer parts of science as more immediately subordinate to the leading objects of society.”
    3. The old charter established a grammar school to teach the ancient languages.
    The modern one barters these for the modern languages and the fine arts.
    4. Under the old charter, the masters held large estates, a right of representation in the Legislature, fixed salaries, and were a body corporate: nor could any. individual lose these rights, except by “death, resignation, or deprivation. ”
    *By the new, he holds them at the will and pleasure of the Visitors, and may be dismissed without any reason whatsoever.
    5. By the old charter, the College, as then established or erected, was to subsist forever.
    By the new one, its existence is determined ; and if, in the revolution of things, the Visitors should incline to erect it into a Turkish mosque, here is 'a precedent for it.
    6. By the old constitution, the trustees only had power to erect schools, or appoint professorships.
    Under the new one, the Visitors assume this power, and exercise it.
    The trustees, under the old charter, convey to professors of theology and the master of the grammar school, who then, under the charter, are to hold to them and their successors.
    The new regulation breaks his succession.
    The College estates were vested in certain professors.
    Where are they now?
    This act, then, if the Visitors in 1779, being subversive of the charter, is a nullity; and, of course, cannot deprive the plaintiff of his rights under the charter.
    The Visitors have undertaken to do, what the original trustees could not effect. They had the power of nominating the first masters, as the Visitors have the power of nominating to vacancies. The term nomination, which is used, proves that this was a trust; when nominated, the master became a member of the body corporate, not in virtue of the nomination, but under the charter. He *held his freehold not from the Visitors, but under the charter.
    When a nomination was made, ether by the trustees or Visitors, they could not rescind this nomination; because, having executed a power, the object of that power was completely effected. The trustees had also a power of receiving donations, and conveying them to the masters. They executed this power, and made the conveyance. Could they have rescinded it, and revoked the execution of this power? And, if the execution of one power is irrevocable, what differs the execution of another power from it?
    I have said, that the master, once nominated, is in under the charter; and the nature of his office shews that he is in an estate for life, 1. Because his office has somewhat the complexion of a judicial one. 2.' Because he elects a representative to the General Assembly. 3. Because he is a member- of a corporation, which is to be perpetual. 4. Because this corporation is to be kept up by succession, and the succession is not to take place, -except in case of death, resignation, or deprivation. 5. Because deprivation is a technical term: In all law glossaries it is explained to be, the result of some delinquency, or good cause, after previous summons and trial; without which, deprivation cannot take place. Thus, not only from the nature of the office, but from the express words of the charter, it is an office during good behavior. 6. Because he is seised, jointly with the other masters, of-extensive freehold estates, which are estates for life. 7.Because the masters are, as a corporation, invested with the office of surveyor general, which is an office held for life: Nor are the Visitors at liberty to garble the joint possession of that important office, or change the members, without any cause, or any delinquency.
    The very right of voting, shews that it is an office for life; not to be lost, except ■ by the party’s own act.
    *The Visitors seem wholly to have mistaken their office. They seem to have considered themselves as the incorporated society; and the president and masters as an appendage depending upon them : Whereas, the president and- masters form the body politic, for the government of which, not for its annihilation, the Visitors are to form rules.
    ' If it were otherwise, the body politic, consisting of the president and masters, were under a government as completely tyrannical, as human cunning could have formed; in which, not even a sham trial, not even a detestable quo warranto, was, necessary to rob the whole body of its rights and privileges. The fiat of the Visitors — - “Let the grammar school be discontinued: Let all the schools be discontinued: Let the grammar master be dismissed; Let all the masters be dismissed: Let there be light and there was light:” The fiat of the Visitors, in a moment, in the twinkling of an eye, was to deprive the whole body politic, not only of their political existence, but, perhaps, of their natural existence, by reducing them to a state of beggary.
    But, the president and masters were a lay corporation, having’ rights, privileges and emoluments, of which they could not be deprived; at least, without some form of trial.
    There is one argument to show the nature of the powers possessed by the Visitors, which is very clear.
    By .the constitution of the College, the Visitors were to make statutes for the government of the College; not for its erection or abolition: But these statutes were to be observed under certain penalties. Statutes to be enforced by penalties, were the species of rules, which alone, the Visitors are empowered to enact. Now, fundamental constitutional *laws, are never enforced by penalties; the subordinate rules for good order and government, often are.
    The constitution of Virginia has said, “Bet there be three branches of government, legislative, executive and judiciary But this rule is not enforced by penalty, because it is fundamental; and, therefore, a penalty cannot be. inflicted for its breach, as having no individual to operate upon. The subordinate rules for good government, call in the aid of penalties. Treason shall be punished by death, and misbehavior before this Court by fine. In like manner, the constitution of the College has said, ‘ ‘let there be a grammar school; let there be Visitors; and let there be a professor of religion.’’ These rules being also fundamental, are not enforced by penalties; but the Visitors might have enacted, that a grammar master should not be guilty of inebriation, under the penalty of SI. ; or that the professor of religion, should not be guilty of profaneness, under the penalty of five shillings; and this would have been within their province.
    Now the rules of December, 1779, are fundamental in their nature, being laws of annihilation or of establishment. These are, therefore, not enforced by penalties; and being fundamental, and not needing penalties, are not such as the constitution of the College enables the Visitors to enact. In answer to this, it may be argued, that the Visitors are empowered by the original statutes, to make statutes of the same kind, because they could alter them without the consent of the Chancellor, an essential not attended to in the act of December, 1779, and that these statutes are not enforced by penalties.
    Although fundamental laws are never enforced by penalties, it does not follow, that all subordinate rules should be. The rules of descents and distribution, *are subordinate rules,, yet they are not enforced by penalties. These original statutes are not fundamental: They are subordinate. The schools and professorships, were fundamental; and had been previously established. These statutes are rules of government, not of establishment. — Instance, the grammar school. Mr. Camm was restored in England; which proves that the Visitors may exceed their powers.
    A.s to the merits, I will conclude with this observation. That the Visitors can only nominate to professorships, in case of vacancy; and that this vacancy must be by death, resignation, or deprivation. Now, Mr. Bracken is neither dead; nor has he resigned; nor has he been deprived: For, the last term involves a personal summons or trial.
    If it did not, if this was not the meaning of the term deprivation, yet this proceeding has only said, that the grammar school shall be discontinued. Now, a deprivation, by implication, of an office for life, a freehold, and a considerable salary, would be a phenomenon in law.
    For these reasons, I conclude that this visitorial act of 1779, so far from being warranted by, is subversive of the College charter, and that it exceeds any visitorial power.
    The act of 1779, therefore, being void, nothing exists to deprive Mr. Bracken of his salary or his office.
    The act is void for other reasons. There was not a sufficient number of members to form a convocation. Upon every principle of natural justice, Mr. Bracken ought to have had notice that he might have defended himself. They have deprived him of his office without hearing him. This alone would invalidate the act, [The King v. The University of Cambridge,] Stra. 5S7. It ought to appear, that every member of the College senate was summoned, [Kynaston v. The Maj'or, &c. of Shrews-bury,] 2 Stra. 1051. But, it is contended, *that, however improper the conduct of the Visitors may have been, a mandamus cannot be resorted to, because this is a mere private Eleemosynary institution, by no means concerning the public, and Visitors are appointed for its government.
    If this be such an institution as those, concerning which the cases have been cited, the law would be admitted, but it is not such an institution.
    In this, the public is very materially concerned. Large landed estates are vested in the professors, who have a freehold interest in those estates. It would be strange indeed, if they could be deprived of them by the mere will of the Visitors, and could have no relief in this Court.
    The acts of Assembly, which give a revenue to the College arising from certain duties, convert it into an object of public concern.
    It is, in many respects in its origin, a corporation for public government, and whose proceedings must therefore be subject to the control of this Court.
    It has a right to a member of Assembly. This is a political privilege’which concerns the nation at large, and partakes nothing of the qualities of a private charity. The masters have a right to vote for this member. Can they be deprived of that vote, and yet this Court have no superintendence over the subject?
    They have the office of the surveyor general; and, having that office, appoint all the surveyors to the different counties throughout Virginia. This is an office which nearly concerns the public, and gives to the College completely ' a public character.
    In the cases too, which have been cited, there were Visitors with general powers ; here the powers of the Visitors are limited.
    ^Marshall, in reply.
    It was shewn, in opening the cause, that this Court can have no jurisdiction in a case of a private Eleemosynary institu-' tion, where Visitors, with general powers, are appointed. “The authorities in support of this position, were too numerous to be opposed. But the counsel for Mr. Bracken, insists:
    1st. That this is a public, not a private ■institution.
    2dly. That the Visitors have limited powers.
    3dly. That, in putting down the grammar school, they have exceeded those powers.
    I shall answer these in their order. And,
    1. This is a private, not a public institution.
    In the case of Philips v. Bury, reported by Rord Raymond, and Comberbach, Rord Holt says, “There are two sorts of corporations aggregate: 1st. Eor public government. 2d. Eor private charity. That for public government, as Mayor, citizens, &c., is subject to the common law; of such there is neither founder or Visitor, nor patron.” In the case before the Court, there is a founder and there are Visitors. It bears no resemblance to a corporation of a Mayor ancl citizens, which is the case of a public corporation put by Lord Holt. According both to the affirmative and negative parts of the description, this is a private, and not a public institution. The persons who compose it have no original property of their own, but it belongs to the corporation. Its funds are mere charitable donations. It is, then, completely Eleemosynary. In many of the cases, Colleges and hospitals are classed together as private Eleemosynary corporations, subject to the will of the founder. There would seem to be no principle on which this College should be placed in a different class of corporations from all other Colleges. I will examine the points of difference made by the counsel for Mr. Bracken. It has been urged, that the professors *have estates as professors, of which, upon general and correct principles of law, they ought not to be deprived, without a right to resort to this Court.
    But, these estates are the gift of the founder. They are his voluntary gift. To this gift he may annex such' conditions as his own will or caprice may dictate. Every individual, to whom it is offered, may accept or reject it; but, if he accepts,' he accepts it subject to the conditions annexed by the donor. He must take the gift cum onere. The condition annexed in private corporations is, that the will of the Visitor is decisive; and, as Rord Holt says, “if the founder directs no appeal, no appeal lyeth. ” That the masters have estates, as masters, cannot convert this into a public corporation ; for, all masters must have salaries as masters; in all charitable institutions something is given, which the professors, if there be any, receive as professors; and, if this was the criterion of a public institution, there could be none private in their nature. But, that this is not the criterion, I again refer to the cases which have been cited.
    But, the acts of Assembly giving certain duties to the College are relied on, as giving the government a right, by its Courts, to supervise the disposition of those revenues.
    The College was founded by William & Mary. Since its foundation, the bounty of Virginia has been added to that of the original founders. It is an established principle, that all annexed foundations follow, and are governed by the rules of the old foundation to which they are annexed. [The King v. The Bishop of Ely,] 1 Wm. Black. Rep. 77, 87. The gift of any individual, then, to a chartered corporation, is subject to the laws which control the original donation. That this gift was made by the public, does not alter the case; because, it is decided, that Colleges of Royal foundation are not different from those of private ^'foundation. Where the King has appointed Visitors, their power is precisely the same as where a private founder has appointed them. Of consequence, a donation to an old foundation, though made by the public, is as subject to the fundamental law of the corporation, as the donation of an individual would be. But, the charter, it is said, gives to the corporation a representative in the General Assembly, and the office ,of surveyor general: Which are subjects of public concern, and would justify the interference of the Courts of Raw.
    It is true, that these are subjects of public concern; but, it does not follow, that they totally change the character of the corporation.
    Their power to elect a member was taken from them by the present Constitution of Virginia, which was before the abolition of the grammar school.
    The office of surveyor general is an emolument given by the 'founder. Admitting this to be of public concern, it cannot affect the case. They have not declined to appoint survej'ors. The existence, or nonexistence of the grammar school, does not affect those appointments. It is unconnected with them. As this mandamus is not applied for to compel the College to proceed to the election of a member to the General Assembly, or to the appointment of a county surveyor, the argument does not touch the case, unless it be intended to prove, that if a case can exist, in which a mandamus might be awarded to the College, it may be awarded in any case; that if there be a power annexed to the corporation to do any one act which concerns the public, the whole corporation immediately changes its nature, and, from a private, becomes a public corporation. Unless the argument proves this, it proves nothing. It cannot prove this. There is no reason, in the nature of the thing, why the donation of an individual, subjected by him to particular conditions, shall be subjected to other conditions, because a public office is conferred on the corporation, *to whom that donation was made. The interference of the Court, so far as concerns the public office, produces no necessity, which I can discern, for their interference in points with which the public have nothing to do.
    If the argument, which would be drawn from these powers conferred on the College, be unsupported by reason, it will derive no weight from authority. No 'decision, no dictum asserting the principle, has been adduced. I believe none can be adduced. The contrary is laid down in 1 Wm. Black. Rep. 83, 85, 86.
    Then, though a mandamus might lie to compel the election of a member, of Assembly, (had the power to elect one still been retained,) or of a county surveyor, yet.it will not lie to compel the establishment of a grammar school, or the restoration of its master.
    2. The objection, that the power of the Visitors is limited, so that they are to be considered as special, and not general Visitors, is not well founded.
    The mere appointment of a Visitor, without any description of his power,, creates him a general Visitor, and gives him the power incident to the office. 1 Wm. Black. Rep. 83. There being no set form of words for the appointment of a general Visitor, let us enquire whether those used in the College charter are not sufficient. The 9th section contains the appointment. It ordains and appoints Rrancis Nicholson,'.&c., gentlemen, and their successors, “to be true, sole and undoubted Visitors and- Governors of the said College forever.” It gives them “powjsr to make such rules, laws, statutes, orders and injunctions, for the good and wholesome government of the College, as to them and their successors shall, from time to time, according to their various occasions and circumstances, seem most fit and expedient.”
    ^Unquestionably, then, they were general visitors, with all the powers incident to that office.
    If I have been successful in .proving, that the College of-William & Mary is, so far as concerns the grammar school, like all other colleges, a private corporation, and that its founder has given it general visitors, there is an end . of the question concerning the mandamus. This Court has clearly no jurisdiction of the case, and from the acts of the Visitors there is no appeal.
    But, if I should be mistaken in this, it will become necessary to enquire,
    3. Whether the Visitors have or have not exceeded their authority?
    I contend that they have not.
    Much argument has been used to prove, that the Visitors are bound by the College charter.
    That is a position I -never designed to controvert..
    If the acts of the Visitors are at all examinable in this Court, none can be supported which transcend the limits prescribed for them in the charter which gives them being, and from .which their power, is drawn. The enquiry is. What are those limits? It is unnecessary to- examine the whole statute of 1779. It is only material to defend that part of it which puts down the grammar school. With respect to this, the whole operation of the- statute is to commute a school for ancient languages into a school for modern languages. Was this within the power of the Visitors?
    The charter gives them the power of making such laws for the government of the College, as to them shall seem proper. Sec. 9.
    *But, it is contended, that this gives them only the power of making laws for the government of the College as constituted, and not-, in any manner, to change its organization. I admit, that it can give no power to change that which is established by the charter. But, the grammar school is not established by the charter. In its first section, power is given to the trustees “to erect, found and establish a certain place of universal study, or perpetual college for divinity, philosophy, languages and other good arts and sciences, consisting of one president,- six masters or professors, &c. according to the statutes and orders of the said College to be made, appointed and established upon- the place by the said Rrancis Nicholson, &c.” It is then only made necessary by the charter, that there should be a president and six professors: and, perhaps, that divinity, philosophy - and the languages should be taught in the College. This requisition of the charter, if it be one, is as well satisfied by teaching the modern as the ancient languages.
    But, it is urged, that the trustees, in forming the statutes which shall regulate the president and masters, act as trustees or founders, and not as Visitors, because the power is given to them only, and not to- their successors. This is true; but I cannot admit the inference which is drawn from it. That inference is, -that having once executed their power, by constituting the six professorships, and having made to the College, so constituted, a transfer of the property vested in them, the trust was completely executed, and the professorships, thus constituted, remained immutable.
    Whatever might be the force of this argument, if the trustees or founders had merely constituted the professorships without any further declaration on the subject, it seems to me to have lost that force in the case which has actually happened.
    The trustees in the very moment of passing the ^statute for the organization of the College, declare that the Visitors may entirely cut off some salaries, and that they reserve to the Visitors the power of making new statutes, or of changing those made by the trustees, as their affairs and circumstances shall, from time to time, require. This declaration precedes the transfer, and the property is taken under the operation of this statute.
    The trustees, it is said, could only have designed a change, as to such offices as did not compose one of the six professorships, required by the charter; but, the expression of the trustees is general, and is not now to be restrained by this Court.
    It is said, that, having executed the trust, they could not transmit to the Visitors the power of .altering .that, which was established by-themselves.
    This deserves a serious consideration. '
    The trustees,are something more than mere .trustees for the conveyance of property to an existing' corporation, or to one the Crown was about to create. They are empowered to found a College, and are entrusted with property with which to endow the College they shall have founded. They have then the power of founders, subject only to that restriction which the charter imposes on them. As founders, they might authorise the Visitors to make any alterations within the limits of the charter. The alteration, I contend, does not exceed those limits, because languages are still taught in the College.
    Bet it be true, that a Court of Chancery would have decreed the trustees to have executed their trust by a conveyance of the property to the College, yet, a Court of Equity would not have decreed them to have relinquished any discretion which they possessed as founders, and which was compatible with the charter.
    *It cannot be admitted to be true, that the masters are independent of the visitors, because they, as well as the visitors, are ordained by the charter. The charter expressly gives to the Visitors the power of legislating for, and governing the College. They have, with respect to the professors, the power of appointment and the power of deprivation.
    Nor is it to be admitted, that the masters are appointed for life. This is no where declared in the charter or statutes. The first president, only, is appointed in the charter, and there is no expression which would shew, that the professors are not removable at the will of the Visitors. That they vote on their freehold, is no proof of it; because, an estate which may endure for life, but is subject to be defeated, draws after it many of the qualities of a life estate. The estate is attached to the office, not to the person; and, as the office may be held for life, the officer, like one who holds an estate during widowhood, has many of the privileges of a tenant for life. But, it is contended, that, if they have the power of deprivation, still, Mr. Bracken ought to have been summoned; and for this, Bentley’s Case is cited, as reported in Strange.
    To that corporation, there was no Visitor: But,, that is not material as to the point I am now considering. There is, however, a material difference between the act we are now considering, and that of which Doctor Bentley complained. He was deprived of his office by a judicial act: the office of Mr. Bracken is put down by a legislative act. He was arraigned for misconduct, and, therefore, should have had notice, that he might have defended his conduct: Mr. Bracken has not been complained of; but, the College Senate have deemed it for the interest of the College to change his office. If the act was within their power, it could not be necessary to give him notice; that they were about to perform it.
    '^Concerning the case of Mr. Camm, I know nothing certain; but am informed, that the Visitors consented to what was done.
    Mr. Taylor is incorrect in stating, that there were not a sufficient number of members in December, 1779, to form a convocation.
    I suppose it need not appear, on the proceedings, that every member was summoned, should it even be necessary, (which I do not admit,) that such should be the fact.
    
      
      The principal case is cited in Turpin v. Locket, 6 Call 180, 182; also, in foot-note to Morris, Ex parte, 11 Gratt. 292, on tbe question of mandamus.
    
   By the Court.

Bet it be certified that, on the merits of the case, the General Court ought not to award a writ of mandamus to restore the plaintiff to the office of grammar master and professor of humanity in the said College.  