he public might take away the right, or
impair it. This notion appears to be borrowed from no better source than
the repudiated doctrine of the three judges in the Aylesbury case.[31]
That was an action against a returning officer for refusing the
plaintiff's vote, in the election of a member of Parliament. Three of
the judges of the King's Bench held, that the action could not be
maintained, because, among other objections, "it was not any matter of
profit, either _in presenti_, or _in futuro_." It would not enrich the
plaintiff _in presenti_, nor would it _in futuro_ go to his heirs, or
answer to pay his debts. But Lord Holt and the House of Lords were of
another opinion. The judgment of the three judges was reversed, and the
doctrine they held, having been exploded for a century, seems now for
the first time to be revived.

Individuals have a right to use their own property for purposes of
benevolence, either towards the public, or towards other individuals.
They have a right to exercise this benevolence in such lawful manner as
they may choose; and when the government has induced and excited it, by
contracting to give perpetuity to the stipulated manner of exercising
it, it is not law, but violence, to rescind this contract, and seize on
the property. Whether the State will grant these franchises, and under
what conditions it will grant them, it decides for itself. But when once
granted, the constitution holds them to be sacred, till forfeited for
just cause.

That all property, of which the use may be beneficial to the public,
belongs therefore to the public, is quite a new doctrine. It has no
precedent, and is supported by no known principle. Dr. Wheelock might
have answered his purposes, in this case, by executing a private deed of
trust. He might have conveyed his property to trustees, for precisely
such uses as are described in this charter. Indeed, it appears that he
had contemplated the establishing of his school in that manner, and had
made his will, and devised the property to the same persons who were
afterwards appointed trustees in the charter. Many literary and other
charitable institutions are founded in that manner, and the trust is
renewed, and conferred on other persons, from time to time, as occasion
may require. In such a case, no lawyer would or could say, that the
legislature might divest the trustees, constituted by deed or will,
seize upon the property, and give it to other persons, for other