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 IN THE CASE OiP 
 
 WILLIAM ALLEN vs. JOSEPH McKEEJ^; 
 
 ■'^itEA&URER OF BOWDOIN COI^LKigte , 
 
 i3>EClDED IN ^THE CIRCUIT COUR^: 'QiP THl^ WNri'Ej^ 
 STATES, A'tTBEE MAY TERM AT PORTLAND, 1^3. 
 
 BOS t ON: 
 
 fe^iifttod at tha Office of the Daily Advertisey and^lPatdSt 
 
 1833. 
 
 
■ 2 
 
 >? J f 
 
 IN EXCHANGS- 
 
Circuit Court of the United States, May Term, 1833, at Portland: 
 William Allen vs. Joseph McKeen. 
 
 In this case Judge Story gave the following OPINION : 
 This cause has been argued with a degree of learn? 
 ing and ability proportionate to its importance. I have 
 taken time to consider it,and propose now to deliver the judg-? 
 raent, which,upon mature deliberation, I feel bound to adopt.. 
 Before proceeding to the questions in coptrpversy, it seems, 
 necessary to give an outline of thp material facts, so that the 
 manner, in, which the points of law are raised, may be clearly 
 seen. Bowdoin College was established in Brunswick, in the. 
 present State of Maine, by an Act of the Legislature of Masi. 
 sachusetts, passed on the twenty-fourth day of June, 1794. — 
 The Act or Charter of Incorporation, after providing that 
 there should, be erected and established a College, &c. to be 
 under the government and regulation of two certain bodies 
 politic and corporate in the act mentioned, proceeds in the 
 second section to enact, that certain persons, (naming them) 
 eleven in number, together with the President, and Treasurer 
 of the College for the time being, be created a body politic by 
 the name of the President and Trustees of Bowdoin College, 
 with perpetual succession. The third section declares, that 
 the Corporation so created, for the more orderly conducting 
 the business thereof, shall have full power and authority from 
 time to time, to elect a Vice-President and Secretary of the 
 Corporation, and to declare the tenures and duties of their 
 respective offices ; and also to remove any Trustee from the 
 same Corporation, when in their judgment he shall be render- 
 ed incapable by age, or otherwise, of discharging the duties 
 of his office, or shall neglect or refuse to perform them, and 
 t|0 fill up all vacancies in, the corporation, &c. ; provided 
 that the number of Trustees^ including the President and 
 Treasurer, shall never be greater than. thirteen, nor less than 
 seven. The fourth section confers on the corporation the 
 usual powers of corporate bodies, and among others the pow- 
 ^r to hold real estate, the clear annual income of which shall 
 not exceed £10,000. The fifth section authorises them to 
 elect a Pricsident, Treasurer, Professors, and Trustees and, 
 other College officers ; to purchase lands, erect colleges, ^c. 
 and to make all reasonable regulations, and by-lskws, not re- 
 pugnant to the laws of" the State, andj to confer degrees,— 
 
The sixth section declares, that the clear rents, issues and' 
 profits of all the estate, real and personal, of which the corpo- 
 ration shall be seized, or possessed, shall be appropriated to 
 the endowment of the College, in such manner as shall most 
 effectually promote virtue and piety, the knowledge of lan- 
 guages, and the useful and liberal arts and sciences, as shall- 
 be directed from time to time by the corporation. The 7th 
 section proceeds to declare, that the acts of the corporation 
 respecting elections, the purchase and erection of houses, the 
 duties, salaries and tenures of office of officers, the appropri- 
 ation of monies, the acceptance of conditional donations, con- 
 ferring of degrees, the making and altering of the rules and 
 orders, &c. &c. shall not have any force or validity, until 
 agreed to by the Board of Overseers created by the same act. 
 The ninth section proceeds to appoint certain persons by 
 name, (in number forty-three) together with the President of 
 the College and Secretary of the Corporation, the Board of 
 Overseers of the College, creating them a body corporate with 
 rhe usual powers, and among others with the power of amo- 
 tion of the members of the Boards and providing, that the 
 Board shall never be greater than forty-five, nor less than, 
 twenty-five. The 16th section provides "that the Legisla- 
 ' " ture of this Commonwealth may grant any further powers. 
 j" to, or alter, limit, annul, or restrain any of the powers by 
 « this Act vested in the said Corporation, as sliall be judged, 
 I" necessary to promote the best interests of the said College.^'' — 
 The 17th section grants to the College five townships of land 
 of the contents of six miles square, to be laid out and assigned 
 jfrom any of the unappropriated lands belonging to the Cona- 
 Imonwealth, in the then District of Maine, the same to be 
 jvested in the Trustees of the College and their successors for- 
 lever, for the use, benefit, and purpose of supporting the Col- 
 tege, with power to dispose of them, &c. and subject to cer-. 
 tain conditions of settlement. 
 
 Such are the most material clauses of the charter. The 
 lands so granted by the Commonwealth have been vested in 
 the Corporation ; and other donations have from time to 
 time been received by it from the munificence of private inr 
 aividuals. The College Boards soon after the grant of the 
 charter were duly organized under the charter, and suitable 
 arrangements were made, so that the College went into ope- 
 ration in the year 1801, and has ever since continued to per.^ 
 form the functions, for which it was established, in the pro- 
 motion of sound literature and the liberal arts and sciences. 
 
 No alteration was ever proposed, or made to the charter 
 during the union of Massachusetts and Maine. But upon the 
 separation of the latter, as an independent State, from the 
 former, it was provided by the act of separation of the 19th 
 of June, 1819, (which was incorporated into the Constitution 
 of Maine, which went into effect on the 15th of March, 1820,) 
 
among the fundamental articles, that " all grants of landi, 
 
 " franchises, immunities, corporate or other rights, &e. which 
 
 " have been, or may be made by the said Commonwealth 
 
 " before the separation, &c. shall continue in force, after the 
 
 "said District shall become a separate State. But the grant, 
 
 " which has been made to the President and Trustees of 
 
 " Bowdoin College out of the tax laid upon the Banks, &c. 
 
 " shall be charged upon the tax upon the Banks within the 
 
 " said District of Maine, and paid according to the terms of 
 
 " the grants. And the President and Trustees and the Over- 
 
 " seers of the said College shall have, hold, and enjoyj their 
 
 " powers and privileges in all respects, so that the same shall 
 
 " not be subject to be altered, limitedi, annulled, or restrained, 
 
 " except by judicial process according to the principles of 
 
 "law." And the ninth article of the same act declares, that 
 
 the fundamental article shall be incorporated, ipso facto, mto 
 
 the State Constitution, " subject, however, to be modified, or 
 
 " annulled by the agreement of the Legislature of both the 
 
 " said States ; but by no other power or body whatsoever." 
 
 With a view, doubtless, to meet the special! security thus 
 
 given to the rights and privileges of Bowdoin College, another 
 
 article (the 8thO of the Constitution of Maine declares, "that 
 
 " no donation, grant, or endowment, shall at any time be 
 
 " made by the Legislature to any literary institution now es- 
 
 "tablished, or which may hereafter be established, unless at 
 
 " the time of making of such endowment, the Legislature of 
 
 " the State shall have the right to grant any further powers to, 
 
 "alter, limit, or restrain any of the powers vested in any such 
 
 " literary institution; as shall be judged necessary to promote 
 
 " the best interests thereof." 
 
 By a vote passed by the Trustees of the College in July, 
 1801, and duly concurred in by the Board of Overseers, the 
 salary of the President of the College was fixed at ^1000 per 
 anijum, (an addition of ^200 wa« afterwards made in 1805,) 
 to be paid in quarterly instalments, and to commence, when 
 he shall enter on the duties of his office ; and it has accord- 
 ingly been constantly so paid by the Treasurer without any 
 further order of either Board, from time to tiuie, to the Presi- 
 dent for the time being, without objection . By another vote 
 of the College Boards of November 4, 1801, the tenure of th& 
 office of the President was declared to be during good behav- 
 iour. By the by-laws of the institution, every candidate for 
 a degree was required to pay five dollars to the Treasurer for 
 the President ; and a like fee was subsequently required for 
 every medical degree. Doctor Allen (the Pl'flf) was duly 
 elected President of the College in December, 1819 : and in 
 May, 1820, he was inaugurated, and assumed the duties of 
 the office under this known tenure of office, and the salary 
 and perquisites annexed thereto. In the same ijionth, with; 
 
6 
 
 the zealous co-operation of President Allen, the College 
 Boards passed a vote, which, after reciting the clause of the 
 Constitution of Maine as to endowments, already referred 
 to, declared that the consent of the Boards be given, that 
 the right may be vested in the Legislature of the State 
 of Maine, (that is, the right to enlarge, alter, limit, or re- 
 strain the powers given by the College Charter,) and that a 
 Committee be authorized in behalf of the Institution to take 
 such measures as may be necessary to vest such right in the 
 said Legislatur e,so as to enable them to make the endowment 
 thereby prayed for, or any further endowment, which they in 
 their wisdom might be disposed to make. President Allen 
 was appointed one of this Committee ; and accordingly 
 application was made to the Legislatures of Massachusetts 
 and Maine for their assent to such modification of the College 
 Charter, as should enable the College constitutionally 
 to receive patronage and endowments from the Legisla- 
 ture of Maine. The Legislature of Massachusetts accord- 
 ingly passed a Resolve on the 12th June 1820, and the Leg- 
 islature of Maine one on the 16th of the same month on this 
 subject, the terms of which will hereafter come more ful- 
 ly under consideration. The Legislature of Maine, suppos- 
 ing that by the conjoint operation of the State Legislatures, 
 all restraint upon their constitutional authority to alter 
 the charter was removed, in March 1821, passed an Act 
 providing, that the number of Trustees of the College in- 
 cluding the President should never be less than twenty 
 nor more than twenty five, and a quorum to be thir- 
 teen ; and the number of Overseers should never be less than 
 forty five, nor more than sixty ; that the Governor and Coun- 
 cil should appoint twelve persons as Trustees, and fifteen as 
 Overseers, Sfc. Sfc. ; that the Boards respectively should there- 
 after fill all other vacancies. Other Acts were passed in June 
 1820, in Feb. 1822, in Feb. 1826, respecting the College, up- 
 on the terms of which it is unnecessary to dwell. On the 31st 
 of March 1831, the act was passed, which has given rise to 
 the present controversy. The first section declares " that no 
 «' person holding the office or place ot President in any Col- 
 " lege in this State" (and there were at that time,and are now 
 but two CloUeges in the State) "shall hold said office or place 
 " beyond the day of the next commencement of the College, 
 " in which he holds the same, unless he shall be re-elected." 
 "And no person shall be elected or re-elected to the office or 
 " place of President unless he shall receive in each Board two 
 " thirds of all the votes given in the question of his election. 
 " And every person elected to said office or place after the 
 " passing of this act, shall be liable to be removed at the pkas- 
 " ure of the Board of Trwtees, or Board of Trustees and 
 " Overseers, which shall elect him." The second section pro- 
 vides " that the fees paid for any diploma, or medical^ or 
 
" academical degree, &c. shall be paid into the Treasury for 
 « the use of the College, and no part shall be received by any 
 officer, as a perquisite of office." At the annual meeting of 
 the Boards of the College in Sept. 1831, they passed a vote 
 '•' that they acquiesce in said Act, and will now &c. proceed to 
 carry the provisions thereof into effect." The Board of Trus- 
 tees then proceeded (after having given due notice to Presi- 
 dent Allen) to an election of President; but no candidate 
 having a majority of votes, no choice was made; and the 
 College has ever sinceremained without any acknowledged 
 President. 
 
 The present action has been brought by Doctor Allen, 
 against the Dft., who is Treasurer of the College^for the sala- 
 ry and perquisites of office, due to him, (as he contends) as 
 President of the College, dejure, notwithstanding his ejection 
 from office in Sept. 1831. 
 
 Two questions have been made at the Bar. First, whether 
 the present action is maintainable against the Dft. as Treasur- 
 erv supposing the P'ff. still to be rightfully in office. Secondly, 
 whether the P'ff. is rightfully in office, notwithstanding the 
 Act of 1831, and the proceedings of the Board thereupon ; so 
 that he is entitled to tecover the amount of his salary and per- 
 quisites, or either, against the College. 
 
 A strong desire has been expressed at the Bar in behalf of 
 the parties, that the Court would not, even if it might, confine 
 its judgment to the first question ; but that it would proceed 
 to decide the whole merits of the controversy, as essential to 
 the good order and prosp^ity of the College^ as well as to the 
 tights of the Dft. Under these circumstances, although I am 
 conscious of thedelicacv and difficulty of the task, (a task, 
 from which I wovlld gla'dly have been spared) 1 shall express 
 the opinion, which I have deliberately formod upon both the 
 questions in the case widnjut hesitation, but at the same time 
 with all the diffidence, which the magnitude of the interests 
 involved in them, cannot fail to create. For the present, I 
 shall pass the question, whether the action is maintainable 
 against the present Dft. and proceed at oneeto the main points 
 upon the merits. 
 
 And the first point naturally arising upon the discussion is, 
 in what light the original charter granted by Massachusetts 
 for the establishment of Bowdoin College is to be viewed.— Is 
 it the erection of a private Corporation for objects of a public 
 nature, like other Institutions for the general administration of 
 diarity ? Or is it in the strict sense of law a public corpora- 
 tion, solely for public purposes, and controllable at will by the 
 Legislative power, which erected it, or which has succeeded 
 to the like authority ? The former is asserted by the P'ff's. 
 Counsel to be its true predicament ; the latter is as strenuous- 
 ly contended for on the other side. 
 
That a College established for the pJ-omotiort of feducatiort, 
 and for instruction in virtue and piety, and in the liberal arts 
 and sciences, is in some sense a public institution or corpo- 
 ration cannot well be denied ; for it is for the benefit of the 
 public atlarge, or at least for all persons, who are suitable ob- 
 jects of the bounty ; and this is the popular sense, in which the 
 language is commonly used. And in this sense an Institution 
 founded exclusively by private donors for purposes of general 
 charity, such as a hospital for the poor, the sick, the disabled, 
 ot the insane, may well be called a public Institution. But in 
 the sense of the law a far more limited, as well as more ex- 
 act,meaning is intended by a public Institution or Corporation. 
 Upon this subject,however, I may well spare myself from any 
 elaboiate exposition, since it was fully consideredin the great 
 case of Dartmouth College, vs, Woodward, (4 Wheaton, R. 
 518) from which I will make a quotation, contained in the 
 opinion of one of the Judges, which it is well known, had the 
 approbation of the Court,— " Public Corporations" (says the 
 opinion) "are generally esteemed such as exist for public po- 
 "litical purposes only, such as towns, cities, parishes, and 
 "" counties ; and in m^ny respects they arfeso, although they 
 " involve some "privtite interests. But, strictly speaking, pub- 
 " lie corporations are such only, as are founded by the Gov- 
 " ernment for public purposes, where the whole interests 
 " belons; also to the Government. If, therefore, the foundatioli 
 " be private, thougli under a chartet of the Government, the 
 " corporation is private, however extensive the uses may be, 
 " to which it is devoted, either by the bounty of the founder, 
 " the nature and objects of the Institution. For instance, a 
 " Bank created by the Government for its own use, whose 
 " stock is exclusiviely owned by the Government, is in the 
 " strictest sense a public corporation. So is a hospital creat- 
 " ed, and endowed by the Goveruuicnt for general charity," 
 (meaning, as is obvious from the context, a hospital, like the 
 Navy Hospital, or the General Marine Hospital established 
 and supported by the U. States, out of its own funds, and 
 over which it retains the entire Government.) "But a Bank, 
 " whose stock is owned by private persons, (and it might have 
 *" been added, partly by private persons, and partly by the 
 " Government) is a private corporation, although it is erected 
 *' by the Government and its objects and operations partake 
 " of a public nature. 'I'he same doctrine may be affirmed of 
 ■" Insurance, Canal, Bridge, and Turnpike Companies. In 
 " all these cases the uses may, in a certain «ense, be called 
 " public ; but the corporations are private, as much so, in 
 " deed, as if the franchise were vested in a single person." 
 
 " This reasoning applies in its full force to eleemosynary 
 "corporations. A hospital founded by a private benefactor, 
 " is in point of law a private corporation, although ded- 
 
9 
 
 " icated by its charter to general charity So is a college 
 " founded and endowed in the same manner, althougbj 
 " being for the promotion of learning and piety, it may 
 " extend its charity to scholars from every class of the 
 " community, and thus acquire the character of a public, in- 
 *' stitution. This is the very universal doctrine of the au- 
 " thorities ; and cannot be shaken, but by undermining the 
 " most solid foundations of the common law." It is after- 
 wards added : " The fact, then, that the charity is public, 
 " affords no proof, that the corporation is also public; and 
 " consequently the argument, so far as it is built upon this 
 " foundation, falls to the ground. If indeed, the argument 
 " wtire correct, it would follow, that almost every hospital 
 " and college would be a public corporation, a doctrine ir- 
 " reconcilable with the Whole current of decisions since the 
 " time of Lord Coke." And it is further stated, that no au^ 
 thority exists in the Government to regulate, control, or direct 
 a corporation, or its funds, " except where the corporation is 
 " in the strictest sense public ; that is, where its whole znter- 
 " ests and franchises are the exclusive property and domain of 
 '^' the Government itself," (a) 
 
 That a college, merely because it receives a charter from 
 the Government, though founded by private ben&factors, is 
 not thereby constituted a public corporation,H:ontrollafele by 
 the Government, is clear, beyond any reasonable doubt. So 
 the law was understood by Lord Holt, in his celebrated judg- 
 ments in Phillips vs. Buxy (1. d Raym. R. S. S. C. 2 T. Rep. 
 346). Lord Hardwicke in the Attorney General vs. Pearse 
 (2 Atk. R. 87) said, " the charter of the Crown cannot make 
 " a charity more or less public, but only more permanent, 
 " than it would otherwise be.'* And the decision of the Su- 
 preme Court in the case of Dartmouth College v. Woodward 
 is direct to the same purpose. 
 
 Nor doBS it make any difference, that the funds have been 
 generally derived from the bounty of the Government itself. 
 The Government may as well bestow its bounty upon a pri- 
 vate corporation for charity, as upon a public corporation ; 
 and its funds once bestowed upon the former become irrevo- 
 cable, precisely in the same manner, and to the same extent, 
 as if they had been bestowed upon an individual. The Gov- 
 ernment cannot resume a gift, once absolutely made to a pri- 
 vate person, neither can it resume a like gift to a private cor- 
 poration. It is true, that the Government may reserve such a 
 power in granting a charter, if it chooses so to do ; but, then, 
 the power arises from the very terms of the grant, and not 
 from any implied authority derived frora^ the bounty being for 
 general charity, any more than it wouW from its being for 
 private charity. The Government may reserve a right to 
 revoke at pleasure, even its private gifts ; but certainly the 
 Law will not imply such a right without some positive expres- 
 
 (a) See 4 Wlrealoiv, 668 to 672. 
 
1^ 
 
 Sion of such ah intention. Mr. Chancellor Kent has slated 
 the true princiftles of Law on this subject, with his usual ac- 
 curacy and clearness. " An eleemosynary corporation (saysl 
 " he) is a private charity, constituted for the perpetual distri- 
 " bution of the alms and bounty of the founder. In this 
 " class are ranked hospitals for the relief of poor, sick, and 
 " impotent persons, and colleges and academies established 
 " for the promotion of leafnitig and piety, and endowed with 
 " propttty. hy pufilic and private donations ." {W) 
 
 To be sur6, where the Government is the founder of a 
 college, it has certain rights and privileges attached to it in 
 point of Law ; but in this respect it is not distinguishable 
 from any private founder. Every founder of an eleemosy- 
 nary corporation, (that is, the fundator pnrjiciens, or person, 
 who originally gives to it its funds and revenues) and his heirs, 
 have a light to visit, inquire into, and correct a 11 irregularities 
 and abuses, which may arise in the course of the administra- 
 tion of its funds, unless he has conferred, (as he has a right to 
 "do) the pt)wer upon some other persons. This power is com- 
 rtionly k .own by the nariie of the visitatorial power, and i is 
 a necessary incident to all eleemosynary corporations ; foir 
 these corporations being composed of individuals, subject to 
 human frailties, are liable, as well as private persons, to devi- 
 ate from the end of their institution ; and therefore ought to 
 be liable to some supervision and control. (c) Hut, what is 
 the nature and extent of this visitatorial power ? Is it a 
 power to revoke the gift, to change its uses, to divest the 
 rights of the parties entitled to the bounty ? Certainly not. 
 It is a mere power to control and arrest abuses, and to enforce 
 a due observance of the statutes of the charity. Lord Holt 
 in Phillips vs. Bury (2 T. K. 352, says, the visitatorial power 
 "• is an appointment of Law. It ariseth from the property, 
 " which the founder had in the lands assigned to support the 
 " rharity ; and, as he is the author of the charity, the Law 
 '.' gives him and his heirs a visitatorial power, that is, an au- 
 " thority to inspect the accounts, and regulate the behaviour 
 " of the members, that partake of the charity ; for it is fit 
 " the members that are endowed, and that have the charity 
 " bestowed upon them, should not be left to themselves (for 
 " divisions and contests will arise amongst them about the 
 " dividend of the charity) but pursue the intent and design 
 *' of him, that bestowed it upon them." But the founder 
 may part with his visitatorial power, and vest it in other 
 persons , and when he does so, they exclusively succeed to 
 his authority ]No technical terms are necessary to assign over, 
 or vest the visitatorial power. It is sufficient, if from the na- 
 ture of the duties to be performed by particular persons under 
 the charter, it can be mferred, that tlie founder meant to part 
 with it in their favor, and he may divide it among various 
 
 (b) 2 Keni Comm. Led. 23, p. 274, (2d edition.) 
 •(c) 1 Black. Comm. 480. 
 
11 
 
 persons, o? subject it to any modification or control by the 
 fundamental statutes of the foundation, (d) Now, it is a 
 general rule in the construction of charters, that if the objects 
 of the charity are not incorporated, but certain Trustees are 
 incorporated to manage the charity, the visitatorial power is 
 deemed to belong to such Trustees in their corporate capaci- 
 ty.{e) And so the Law is laid down by Lord Holt in Phil- 
 lips vs. Bury (2 T. R. 352,853). I'his visitatorial power is an 
 hereditament founded in property,and valuable in th^ intend- 
 ment of law ; and where it is vested in Trustees, there can 
 be no amotion of them from their corporate capacity, and no 
 disturbance or interference with the just exercise of their au^ 
 thority,unless it is reserved by the statutes of the foundation, 
 or charter. But, still, as managers of the revenues of the 
 <:harity, they are not beyond control ; but are subject to the 
 general superintendence of a Court of Chancery, for any 
 abuse of thieir trust in the management of it. 
 
 If with these principles in view, we examine the charter of 
 Bowdoin College, we shall find, that it is a private and not a 
 public corporation. That it answers the very description of 
 a private College, as laid down by Mr. Chief Justice Mar- 
 shall in Dartmouth Collfge vs. Woodward (4. VVheaton, R. 
 €40, 641.) It " is an eleemosynary institution, incorporated 
 " for the purpose of perpetuating the application of the boun- 
 " ty of the donors to the objects of that bounty. Its trustees 
 " were originally named by the founder, and invested with 
 '■' the power of perpetuating themselves. They are not pub- 
 " lie officers ; nor is it a civil institution ; but a charily school, 
 ^' or a seminary of education, incorporated for the preserva- 
 " tion of its property, and the perpetual application of that 
 " property to the objects of its creation." The Common- 
 wealth of Massachusetts is its founder, having given it its 
 original funds. But it is made capable of receiving, and has 
 actually received funds from the bounty of private donors. 
 As founder, the Commonwealth of Massachusetts would have 
 possessed the visitatorial power, if it had not entrusted 
 that and all other powers and franchises and rights of prop- 
 erty of the College to the Boards of Trustees and Overseers 
 established by the charter, and in the manner therein stated. 
 As soon as that charter was accepted, and carried into opera- 
 tion by the Trustees and Overseers named in it, they acquir- 
 ed a permanent right and title in their ofHces, which could not 
 be devested, except in the manner pointed out in that charter. 
 The Legislature was bound by the act ; they could not resume 
 their grant ; and they could not touch the vested rights, privi- 
 leges or franchises of the College, except so fiir, as the power 
 was reserved by the 16th section of the act. -l^he language 
 
 (d) Dartmouth College v. Woodward, 4 Wheaton, 676. Phillips v. 
 Bury, 2 T. R. 350, 352, 353. 
 
 (e) Ibid. Green v. Rutherford, 1 Ves. 472. Attorney General v. Mid- 
 dleton, 2 Ves. 327. Case ofSutton's Hospital, 10 Co. R. 23, 3! , 2 Kent 
 Comiri. sect. 23, p. 300, &c. (2cl edition). 
 
12 
 
 of that section is certainly very broad ; but it is not unlimited. 
 It is there declared, that the Legislature " may grant further 
 <• powers to, or alter, limii, annul or restrain any of the powers 
 « by this act vested in the said Corporation, as shall be judged 
 " necessary lo promote the best interest of the College.^^ W hat- 
 ever it may do then, must be done to promote the best inter- 
 est of the College. It is true, that it is constituted the sole 
 Judge, what is the best interest of the College ; but still it 
 cannot do any thing pointedly destructive of that interest. Its 
 authority is confined to the enlarging, altering, annulling or 
 restraining of the powers of the Corporation. It cannot inter- 
 meddle with its property ; it cannot extinguish its corporate 
 existence ; it cannot resume all its property, and annihilate all 
 its powers and franchises. The Legislature must leave its 
 vitality and property, and enable it still to act as a College. 
 It cannot remove the Trustees, or Overseers, though it may 
 abridge, as well as enlarge, their powers. At least, any argu- 
 ment, which should attempt to establish a different doctrine, 
 must proceed upon the difficult assumption, that a power " to 
 promote the best interest of the College" included a power to 
 destroy all its interests, nay its very existence. 
 
 But it is unnecessary to enlarge upon this topic, since the 
 present case does not rest upon the effect of this clause of the 
 original charter. — The act of Separation, which is constitu- 
 tionally binding upon the Legislature of Maine, gives, as we 
 have seen, a complete guaranty to the powers and privileges, 
 of the President, Trustees and Overseers, under the charter; 
 so that they are incapable of being altered, limited, annulled, 
 or restrained, except by judicial process according to the prin- 
 ciples of law, unless that act has been modified by the sub- 
 sequent agreement of the Legislatures of both States. 
 
 The next inquiry naturally is, whether any such modifica- 
 tion has been made, as is contemplated by the act of Separ- 
 tion. If it has, another inquiry will be, what is the true ex- 
 tent of the modification actually made and authorized. The 
 Resolve of the Legislature of Massachusetts was passed (as 
 we have seen) on the 12th day of June, 1820. After reciting 
 the clause in the act of separation above referred to, and the 
 petition of the Trustees and Overseers of Eowdoin College 
 for such a modification of that clause, as would enable the 
 Legislature of Maine to make donations, grants and endow- 
 ments to the college, it is Resolved " That the consent and 
 " agreement of this Commonwealth be, and the same is hereby 
 " given to any'alteration,or modification of the aforementioned 
 " clause or provision in said act relating to Bowdoin CoUee-e, 
 " not affecting the rights or interests of this Commonwealth, 
 '^ which the tiesident and Trustees and Overseers of the said 
 " College, or others, having authority to act for said Corporar 
 " tion,may make therein with the consent of the Legislature of 
 " said state of Maine ; and such alterations or modifications, 
 « made as aforesaid, are hereby ratified on the part of this 
 « Commonwealth." Now, whether this resolve is exactly in 
 
13 
 
 conformity to the petition of the Trustees and Overseers, and 
 carried into effect their objects, is a point wholly unnecessary 
 to be here discussed ; for the state of Massachusetts had a 
 right to prescribe such terms as it pleased, and was not bound 
 to grant, what was asked, but what it deemed in its discretion 
 fit to be granted; We must, then, construe the Resolve, as we 
 would any other solemn act of Legislation, according to its 
 true intent to be collected from its terms. Now, it is very 
 clear, that Massachusetts was not willing to make an uncondi- 
 tional surrender of all rights and interests under t!;^e charter 
 to the Legislature of Maine ; for an express exception or re- 
 servation is made of alterations or modifications " affecting 
 the rights and interests of the Commonwealth^' under the clause 
 of the act of Separation. The very exception or reservation 
 supposes, that there are some rights and privileges and inter- 
 ests of the Commpnwealth, arising under the charter jfor other- 
 wise the language of the exception or reservation would be 
 useless, if not absurd. Nor is it difiicult to perceive, that the 
 Commonwealth of Massachusetts had rights and interests, 
 which might be affected by certain alterations of the charter. 
 In the first place,. the Commonwealth was the founder of the 
 College, and had given certain land^ to be appropriated to the 
 uses of the charity. It had a right and interest in having 
 these funds perpetually applied to the original objects of the 
 Institution. As founder, too, it was entitled to the visitatorial 
 power over the College ; and having delegated that power to 
 certain Trustees and Overseers in perpetual succession, as its 
 chosen, substituted agents and visitors, it had also a right and. 
 interest in having that power perpetually exercised by the ve- 
 ry, bodies, and by none others, which it had constituted for this 
 purpose. Nothing is clearer in point of law, than the right 
 of a founder to have his visitatorial power exclusively exer- 
 cised by the very functionaries in whom^ he has vested it. It 
 is the very substratum of his donation. 
 
 This is not all. The founder has a right to have the statutes 
 of his foundation, as to the powers of the Trustees, strictly ad- 
 hered to, unless so far as he has consented to any alteration 
 of them. But an authority to alter or modify those powers 
 can never be fairly construed into an authority to take them 
 from his Trustees and confer the same power on other per- 
 sons. My view of this Resolve, therefore, is, that it authoriz- 
 es no alterations or modifications of the College charter, which 
 shall divert the funds of the founder from their original ob- 
 jects, or shall vest the visitatorial po\ver in. any other bodies, 
 or persons, than the Trustees and Overseers marked out in the 
 original charter ; and a fortiori that it does not justify the 
 transfer of these powers from the Trustees to any other per- 
 sons not in privity with them. It does not authorize the 
 Legislature of Maine to assume to itself the powers of 
 the Trustees, or Overseers, or of either of them, or to appoint 
 new Trustees or Overseers ; for that would affect the rights 
 and interests of the founder, who had a right to select his own 
 administrators of his own bounty in perpetuity. I do not say, 
 that the Legislature of Maine might not have authorized an 
 
14 
 
 increase of the number of both Boards, leaving the appoint- 
 ment to be made by the existing Boards ; for that would stili- 
 leave the funds to be administered by agents selected by the 
 proper visitors of the founder. Upon that point I give no opin- 
 ion. What I do mean to say is, that the Legislature of Maine 
 was not authorized by this Resolve of Massachusetts to affect 
 the rights and interests of the latter state by making appoint- 
 ments of Trustees and Overseers of the charity through its 
 own agency, and independent of the agency of the charter, 
 Trustees and Overseers. Massachusetts has no where there- 
 in given any assent to such aa alteration or modification of 
 the Charter of the College. 
 
 But this is not all. The language of the Resolve is, that 
 Massachusetts assents and agrees to any alteration and modi- 
 fication, " which the President and Trustees and Overseers of 
 " said College may make therein with the consent and agree- 
 "ment of the Legislature of said state of Maine ; and such 
 " alterations or modifications made as aforesaid, are hereby rat- 
 " ified on the part of this Commonwealth." Now, I confess, 
 that I think there is great force in the argument, that this Re- 
 solve had in view certain alterations and modifications, then to 
 be made, uno Jlntu, and not any subsequent alterations and 
 modifications, which might from time to time, and in all future 
 times and ages be made in the charter. It is scarcely con- 
 ceivable, that Massachusetts should use terms of ratification in 
 presenti,as applicable to all such possible alterations in all fu- 
 ture times. That was not necessary to accomplish the objects 
 of the petitioners. A single alteration or modification, which 
 should confer upon the Legislature of Maine the authority re- 
 quired by the Constitution to authorize any donation, grant or 
 endowment of that Legislature to the College, would have 
 been sufficient, without any general and sweeping authority 
 for unlimited changes. But, be this as it may, it is very clear, 
 that Massachusetts has not assented or agreed to any altera^ 
 tions or modifications, which the Legislature of Maine might 
 in virtue of its sole authority make, but to such only, as the 
 President and Trustees and' Overseers of the College may 
 make with the consent and agreement of the Legislature of 
 Maine. The alterations and modifications are, then, to be 
 made by the Boards of the College, or by their agents, with 
 the consent of the Legislature, and not by the Legislature 
 without their consent. In short, the alterations or modifica- 
 tions are to originate with the Boards, and to be made by them ; 
 but they are inoperative, unless ratified by the Legislature. 
 If, therefore, the Legislature of Maine has undertaken to 
 make laws altering or modifying the charter of the College 
 without making the validity of such Laws dependent upon tbe 
 adoption of the Boards before or after their passage, I have no 
 hesitation in saying, that such laws have never been assented 
 to by Massachusetts, and are, consequently, unconstitutional 
 and void. 
 
 But let us see,vphether the Legislature of Maine haa adopt- 
 ipd this Resolve of Massachusetts ; for there must be a concur- 
 
15 
 
 rence of the Legislatures oF both States ad idem, to repeal or 
 modify the clause in the anit of Separation. It is very cer- 
 tain, that the Legislature of Maine has passed no correspon- 
 dent resolve or act, in totidem verbis, nor has it in terms as- 
 '^ented or agreed to the r6solve of Maissachusett^s. How, then, 
 -can the resolve have any operation ? The act of Separation 
 xleclares, that the fundamental articles, the terms and condi- 
 tions of the Separation, shall be, ipso facto, incorporated into 
 the constitution of Maine, " subject, however, to be modified 
 "or annulled by the agreement of the Legislatures of both 
 *' the said States. " To constitute such an agreemeHt, both 
 parties must assent to the same thing. The whole proposition 
 must be adopted or nothing. From the very nature and force 
 of the term, an agreement can be but one thing ; and in that 
 one thing, both parties must concur. If then Massachusetts 
 and Maine have not agreed to the same identical thing, the 
 casus fddRris has not arisen. Indeed, I am inchned to go much 
 farther. I do exceedingly doubt, if any modification or a- 
 mendment can be made in any of these fundamental articles, 
 without the specific modification or amendment being drawn 
 out,and expressly assented to by both States. I do not think, 
 consistently with the letter, or spirit of the qualifying or enact- 
 ing clause, that the Legislature of either State can delegate 
 "to other persons, its authority to assent to, or frame any such a- 
 greement. It cannot agree ab ante, to any modifications or a- 
 mendments, which third persons may make ; it must agree to 
 some specific proposition, purporting to be its own final act in 
 the premises. 
 
 Butjitis argued, that the act of Maine of the 16th March, 
 1820, (which was passed four days after the Massachusetts re- 
 solve,) contains a virtual assent to that resolve, and that there- 
 fore there has been a sufficient compliance with the requisites 
 of the articles of separation. Let us see, then, what the pur- 
 port of that act is. It is entitled ''an act to modify, and 
 -limit the terms and conditions of the act of separation relative 
 to Bowdoin College, and encourage literature, and the arts 
 and sciences ;" and it enacts "that provided the Legislature 
 " of Massachusetts sAaiZ agree thereto, the President and 
 " Trustees and the Overseers of Bowdoin College having 
 "already assented thereto, the terms and conditions men- 
 " tioned in the act of the Commonwealth of Massachusetts 
 "passed on 19th of June A. D. 1819, entitled &c. be and 
 "the same hereby are so far modified, limited or annulled, 
 " as that the President and Trustees and the Overseers shall 
 "have, hold, and^njoy their powers and privileges in allres- 
 " pects, subject however to be altered, limited, restrained, or 
 "extended by the Legislature of the State of Maine, as shall 
 ''by the said Legislature be judged necessary to promote the 
 "best interests of said Institution." Now, it seems tome, 
 that this act is precisely in the form contemplated by the act 
 -of Separation,in order to justify a modification of the charter. 
 " It .presents a specific alteration for the consideration a»4 
 
16 
 
 agreement of Massachusetts ; and thus affords a very strong 
 confirmation of the view, which has been already taken of 
 this point by the Court. The act is to take effect, and the 
 modification is to be incorporated into the charter, provided 
 the Legislature of the Commonwealth of Massachusetts shall 
 agree thereto, that is, to the specific modification proposed in 
 the act. Now, it is certain, that the act of Maine, or the 
 specific modification of the charter therein proposed, has never 
 been agreed to by the Legislature of Massachusetts. The 
 act has never, as far as any of us know, been laid before the 
 Legislature of Massachusetts, either for consideration or for 
 confirmation. The act xioes not look to any antecedent Re- 
 solve of Massachusetts, and dispense with any farther assent, 
 but it expressly looks to some future act or assent of Massa- 
 chusetts. The language is, provided the Legislature sAa^Z agree 
 thereto; not hits agreed thereto. Nor is this a mere matter of 
 ' form. It is in my judgment matter of substance , and was so 
 rightly understood by the Legislature of Maine, as indispen- 
 sable to the constitutional efficacy of the act of 1820. In no 
 just sense can this act be construed to be an adoption of the 
 Massachusetts Resolve. The terms are not the same ; the 
 tSbjects are sot the same ; the limitations are not the same. — 
 Massachusetts signifies her assent to any alteration or modifi- 
 cation " not affecting the rights or interests of this Common- 
 wealth." No such qualification or limitation is to be found 
 engrafted on the act of Maine. The latter saves no right , 
 and no interests of Massachusetts. Massachusetts signifies her 
 assent to any alteration &c. which the President, Trustees, 
 and Overseers &c. may make in the charter, with the consent 
 and agreement of the Legifslature nf Maine. The act of the 
 latter assents to no such general authority, but confines itself 
 to a single proposition, and that conceived almost in the very 
 terms of the 8th article of the Constitution of the State. It is 
 impossible,therefore,in an exact and legal sense to assert, that 
 the Resolve of Massachusetts, and the act of Maine speaks 
 ad idem. The proposition of neither legislature has been 
 specifically acted upon by the other. There has been a miscar- 
 riage of the parties, unintentional, in all probability, but not 
 in my judgment, the less fatal on that account. 
 
 But althouf,h I am clear in this opinion, it is not my inten- 
 tion to rest the present case upon this ground alone, though 
 it seems to be impregnable. There is another point of view, 
 in which the constitutional doctrine is equally clear, and 
 equally fatal. 
 
 Let it be conceded, that the act of Maine of the 161h of 
 ■June 1830 is constitutional, and has become incorporated into 
 the charter of the College and there yet remains a very im- 
 portant inquiry ; what is the true extent of the authority of 
 the Legislature conferred by that act over the College ?— 
 The words are that "the President and Trustees and the 
 "Overseers ofBowdoin College shall have,hold and enjoytheir 
 "powers and privileges in all respects, subject, however, to 
 
17 
 
 *« be alterei, limited, restrained, or extended by the Legisla- 
 " ture &c. as shall &c. be judged necessary to promote the 
 ««best interests of said Institution". In the first place, it is clear, 
 that this language can in no reasonable, indeed, I may say, by 
 no possible interpretation be construed to include an authori ty 
 -to annul the charter,or the corporation created by it,or the Insti- 
 tution itself The word "annul" is not in it,as it was in the 16th 
 section of the original charter of 1794; but the other words 
 of that section are retained, except that the^vord " extend " 
 is substituted for the word " grant." This alone would fur- 
 nish an almost irresistible argument, that the authority to an- 
 nul was intended to be withheld from the Legislature. But 
 the words of the section in their actual connexion exclude 
 any authority to annul the charter. It would be utterly re- 
 pugnant to all common sense to say, that an annihilation of 
 *the College would be an act to promote its " best interests.*' 
 But the authority is limited in other respects. It is not an au- 
 thority to alter, limit, restrain, or extend the charter gen- 
 erally, but only to alter, limit, restrain or extend Xhepow- 
 ers and privileges conferred by the charter on the 
 President, Trustees, and Overseers, as may be judged neces- 
 sary to promote the best interests of the Institution. The 
 act, then, does not authorize the creation of new Boards, in 
 whom the corporate powers and privileges may be vested, 
 nor any transfer whatsoever to other persons of the powers 
 and privileges of the old Boards. The powers and privileges 
 of the existing Boards may be extended or restrained, limited 
 or altered ; but they cannot be transferred over to other per- 
 sons ; for that would be an act of a very different character. 
 Whatever powers and privileges are allowed by the Legisla- 
 ture, to be exetcised for the promotion of the best interests 
 'of the institution, are to be exercised by the Charter Boards. No 
 authority is conferred upon the Legislature to add new mem- 
 bers to the Boards, by its own nomination, or by that of the 
 Governor and Council of the State. That would be an ex- 
 tension, not of the powers and privileges of the Boards,but of 
 the Legislative action over them. If the Legislature could 
 add one new member of its own choice or appointmentj and 
 not of the dioice or appointment of the Charter Boards, it 
 could add any number whatsoever, five, or fifty, or one 
 hundred. It could annihilate the powers and privileges of 
 the Charter ^oards,under the pretence of alteration or exten- 
 sion. It would hardly be contended, that the Legislature 
 possesses a right to substitute itself in the Hianagement of the 
 College and its interests, for the Charter Boards ; and if not, 
 ^bow can it confer such an authority upon other persons ? — 
 The President, Trustees and Overseers are to "hold and en- 
 joy their powers and privileges in all respects, subject &c. 
 &c." But how can they hold or enjoy any such powers or 
 privileges, if they are liable to be transferred to any other per- 
 
1-8 
 
 sons, and taken frOm themselves ? If sOch had been the in- 
 tent of tha parties, other language would have been used 3 
 the Charter, the College, and the Boards would have been 
 made subject to the pleasure of the Legislature ; the power 
 to annul and transfer the powers and privileges would have 
 found its way into the act in a clear and determinate man- 
 ne r. I agree, that the Legislature might authorise an en- 
 la^'crement of the Boards, by the appointment of new members 
 to be nominated by the Boards ; for it would be but an en- 
 largement of the powers and privileges of the existing Boards. 
 But it is morally impossible, as I think, to engraft upon the 
 terms of the act an authority in the Legislature to make, of 
 itself, new Boards;, or to change the whole organization of the 
 old Boards by the addition of members, not chosen by those 
 Boards. I am not prepared, therefore, to admit that the act 
 of the 19th of March, 1821, enlarging the Boards, or the act 
 of the 27th Feb. 1826, make the Governor, fx officio, & mem- 
 ber of the Board of Trustees, Can be maintained as constitu- 
 tutional exercises of authority. I do not say, that the pro- 
 ceedings of the Boards, as actually constituted, since the pas- 
 sage of those acts are void. That is a very different question, 
 turning upon very different considerations. There is a mark- 
 ed distinction in the law, which allows the acts of many otfi- 
 cers de facto to be good, although they may not be officers de 
 jure, or regularly elected. The present case is quite enough 
 loaded with difficulties for the court not to desire to plunge 
 into that point, although from the strong desire expres- 
 sed, and the discussions pressed at the bar for an opinion upon 
 this point, it has not been very easy wholly to avoid it. 
 
 Let us see, then, how far the act of the 31st of March, 1831, 
 is affected by any of those considerations. It is in its terms an 
 act of positive and direct legislation. It legislates the existing 
 Presidents of Bowdoin and Waterville Colleges (the only Col- 
 leges in the State) out of office from and after the next annual 
 commencement of the Colleges. It is a direct exercise of the 
 power of amotion from office by the legislature itself.— 
 That very power was expressly and exclusively conferred up- 
 on the College Boards by the original charter. Massachusetts 
 has never consented, that it should be taken away from those 
 Boards, and be exercised by the Legislature of Maine ; for it 
 is an alteration or modification " affecting the rights and inter- 
 ests of that Commonwealth'' in regard to those very Boards. 
 The act of Maine of June, 1820, has not conferred this power 
 on the Legislature ; for that act authorizes no transfer of any 
 of the powers of the Boards to the Legislature, or to any oth- 
 er persons. It would have been quite a different question, if 
 the Legislature had undertaken merely to alter the term of of- 
 fice of the future Presidents chosen by the Boards, with a grant 
 of power to remove such future Presidents at the pleasure of 
 the Boards. The wisdom of such a provision might be more 
 than doubtful. The authority to make it, 'might perhaps be 
 -TOiore clear. 
 
91 
 
 But it is said^ that the Boards have assented to, the act, and 
 have adopted it ; and it has therefore, become binding upon 
 the College. I think, that the argument is not correct. The 
 Boards have not adopted it ; they have merely "acquiesced" 
 in it, a phrase evidently chosen, ex industria, by the BoardSj 
 as expressive of mere submission to the Legislative will, and 
 ^ot of approbation ; a course, vsrhich might naturally be 
 j^dopted to avoid a direct collision with the Legislature, an4 
 as a respectful appeal for a future revision of the act by the 
 Legislature itself. But if the acquiescence of the Boards 
 could be construed into an approval of the act (as, I think, it 
 ought not to be) still, that approval cannot give effect to an 
 unconstitutional act. Tl^e Legislature and the Boards are not 
 the only parties in interest upon such constitutional questions. 
 The People have a deep and vested interest in maintaining 
 all the constitutional limitations upon the exercise of legisla-i 
 tive powers, and no private arrangements between such par- 
 ties can supersede them. 
 
 Independent, however, of this general ground, there is 
 another of great weight and importance ; and that is, that 
 President Allen was in office under a lawful contract made 
 with the Boards, by which contract he was to hold that office 
 during good behaviour with a fixed salary, and certain fees 
 annexed thereto. This was a contract for a valuable consider- 
 ation, the obligation of which could not consistently with the 
 constitution of the United States be impaired by the State 
 Legislature. The act of 1831, directly impairs the obligations 
 of that contract. It, ipso facto, takes away from President 
 Allen the tenure, by which he held his office ; and removes 
 Bim from it. Now, it was as little competent for the Legis- 
 lature to exercise this authority,as it was for the Boards of the 
 College. The President, holding his office during good be- 
 Iiaviour, could not be reixioved from office, except for gross 
 misbehaviour, and then only by the Boards in the manner 
 pointed out in the original charter. It is no answer to say, 
 that the President personally assented to the proposition to 
 clothe the Legislature with an'authority of this sort, in futuro. 
 However indefensible aiiy act might be on his part, by which 
 he should surrender for all his successors the tenure of office 
 during good behaviour, which he should yet retain for himself, 
 (a design which I am very far from imputing to himj) still the 
 act of June, 1820, could in no legal sense be construed to ap- 
 ply to past contracts. It could operate only in relation to pow- 
 ers to be exercised by the Boards, in futuro. And, at all e- 
 vents, he has not assented to the act of 1831 ; and has resist- 
 ed it, as in his opinion oppressive, vindictive, and unconstitu- 
 tional. 
 
 In every vieyv, therefore, in which I haye been able to con- 
 teinplate this subject, it seems to me that the act of 1831 is un- 
 constitutional, and void, so tar as it seeks to remove President 
 Allen from office. The Legislature could not constitutional 
 ly deprive him of his office, or of his right to the salary and 
 perquisites annexed thereto. 
 
20 
 
 The other question in the case is of minor importance to the 
 parties; but still in a legal point of view it is entitled to grave 
 consideration. From what has been already stated President Allen 
 is dc jure in office ; and as there is no pretence to say, that he has 
 not always been ready to perform the duties of his office, he is en- 
 titled to recover against the Corporation the entire emoluments, 
 annexed by his contract to the office at the time, when he accept- 
 ed it, or which have since been annexed to it. — But the present 
 suit is not brought against the Corporation, It is against the 
 Treasurer of the Corporation personally, as having received mon- 
 ey for the use of the P'fF. To justify a recovery then, it must be 
 clearly made out, that there is in his hands money, which has 
 been specifically appropriated to, and belongs to the P'ff., as Pres- 
 ident of the College. As to this part of the case, there may arise 
 a. distinction between the salary, and the fees of office. Since the 
 College commencement in 1831, no money has come into the hands 
 of the Treasurer, which by any order of the Board has been speci- 
 fically directed to be paid to the President of the College, eo nom- 
 ine, or to the P'ff. Before that period the salary was payable quar- 
 terly, and was accordingly paid by the Treasurer, under the gen- 
 eral vote of the Board already stated. It was a duty incumbent 
 upon him so to do,in order to carry that vote into effect;and if funds 
 existed in his hands sufficient for the purpose, there was an im- 
 plied appropriation of those funds for that purpose. But the ac- 
 quiescence of the Boards at that period in the Act of the Legisla- 
 ture of 1831, and their information to the P'ff. of that acquiescence, 
 and their proceeding to elect a new President, (though ineffectu- 
 al) amounts, as I think, to an implied revocation of the authoiity 
 to pay over any future salary to the P'ff. as President. They treat- 
 ed him, as no longer in office, and had a right to take from their 
 Treasurer (who is but their agent) the authority to pay to the P'ff. 
 any further salary, and to assume upon themselves all the conse- 
 quences of a breach of their contract. But as to the fees for ac- 
 ademical and medical degrees, the posture of the case is somewhat 
 different. It is true, that the Act of 1831, in the second sectipn, 
 declares, that the fees paid for degrees, shall thereafter be paid 
 into the "Treasury for the use of the College. But so far as re- 
 garded the P'ff., who by his contract, and the by-laws, was enti- 
 tled to those fees, the act was inoperative. Besides : — The 
 Boards have never acquiesced de facto in this part ol the Act. On 
 the contrary, in Sept. 1832, there was an express refusal to 
 change the former by-laws, by which "candidatesibr either degree 
 shall pay five dollars each, to thp Treasurer for thp use of the Pres- 
 ident;" so that those by-laws, at least so far as the P'ff. is concern- 
 ed, remain unrepealed ; and the fees received by the Treasurer 
 for such degrees, have been expressly received by him for the use 
 of the President. They are strictly money had, and received for 
 his use ; and as the Pl'ff. still continues de jure President, he is 
 entitled to them, unless there is some stubborn rule of law, which 
 stands in his way. 
 
 It is a very clearly established principle of law, that if one man 
 receive money, which ought to be paid to another, or belongs 
 to him, this action for money had and received will lie in favor of 
 the party, to whom of right the money belongs. So it is laid 
 down by Lord Chief Justice Willes, in Scott v. Surman, (Willes 
 R. 400); (f) and the doctrine has ever since been adhered to. Nor is 
 there any difficulty in maintaining such a suit, simply because it 
 involvesa trial of the title to office, if the party has once been in 
 possession. Upon this point nothing more is necessary than to re- 
 
21 
 
 er to Arris v. Stukely, (2 Mod. R. 260) and Boyter v. Dodsworth 
 (6,Term Rep. 681.) (g). It seems to me, therefore, that as to the 
 fees actually received for degrees by the Treasurer for the. 
 President, the suit is maintainable, and, as to the salary, not. 
 
 1 have now finished all that is n^cassary to b? said for the de- 
 cision of this Court. But I cannot dismiss it without expressing 
 my regret, that it has ever come before the cause, andthat I have, 
 been deprived of the assistance of my learned Brother, the District 
 Judge, in deciding it. If this Court were permitted to have any 
 choice as to the causes, which should come before it, this is one of 
 the last which it. would desire to entertain. But no choice' is left. 
 This Court is bound to a single duty, and that is, to decide the 
 causes biought before it according to Iaw,leav;ing the consequences 
 to fall as they may. 
 
 It is impossible in any aspect of the case not to feel, that the de- 
 cision is full of embarrassment. On the one h^pd the importance 
 qf the vested rights and franchises of the literary institution 
 have not been exaggerated; and on, the other hand the extreme, 
 difficulty of successfully conducting any literary institution with- 
 out the patronage and cordial support of the Government, and un- 
 der a headjwho may (however undeservedly) not enjoy its highest 
 confidence. But these are considerations proper to be weighed by 
 others, who possess a discretion and voice in a fit adjustment of 
 controversies of this sort. To the Court is left the humbler, 
 but unenviable task of pronouncing a judgmeiit,such,asa just rev- 
 erence for the Law, and a conscientious discharge of its duty im- 
 pose upon it. 
 
 The verdict taken for the Dft. must, pursuant to the agreement 
 of the Parties, be set aside, and a verdict entered for the P'ff., 
 for such a sum,as shall be ascertained by an auditor to be appoint- 
 ed by the Court, as due to him for the fees for degrees received 
 by the Dft. for the use of the President. 
 
 ffj See also Woodward v. Freeman's R. 429. Mayor of London r. 
 Gorey, Freeman's R. 433. Howard v. Wood, Freemap's R. 474, and 
 Hote of Mr. Smirke. 
 
 (gj Green v. Hewett Peake, N. P. R. 182. Rains v, Commissioners of 
 Canterbury. 7 Mod. 147. Powell v. Milbank, 1 Term R. 399, note. Sad- 
 ler v. Evajjs, 4 Burr R. 1984. Drewv Fletcher, 1 , B & Cres. R. 283.— 
 Lightley v. Clouston. 1 Taunt. R. 116, per Heath S, Hall v. Marston, 
 (7 Mass. R. 375. Hearsey v. Prjjyn, 7 John. R. 179, 182. 
 
N 
 
jr'BRARY OF CONGRESS 
 
 029 915 496 8 
 
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