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On the whole, we consider this act as a blind sacrifice to party, of the rights of individuals, (many of whom had eminently served the cause of this country in promoting our glorious revolution, as an encouraging example to future attempts, against whatever may be imagined best secured and fenced by the highest legal sanctions; and as a bold infraction of a constitution, held up by the advocates of this injustice as a perfect model of political wisdoin, and as such we protest against the act, and against every measure and proceeding tending to its support and confirmation.
Thomas Fitzsimons, John Arndt,
Arthur St. Clair, * James Read,
Anthony Wayne. * Mr. Read would have it understood that he has sentiments as favorable to the constitution as those held by those from whom he here dissents.
Reasons for dismissing from the report of the committee appointed to
enquire whether the constitution has been preserved in violate, &c. the paragraph relative to the college, academy and charitable school of the city of Philadelphia.
1. Because the corporation named “The trustees of the college, academy and charitable school of the city of Philadelphia, ia the province of Pennsylvania," constituted by two charters, granted by the late proprietors of Pennsylvania, the first bearing date the 13th of July, 1753, and the second on the 14th May, 1755, had lost their activity, and were incapable of exercising their essential functions. The power of appointing new trustees, and of appointing or discharging the provost, vice provost and professors, or any of them, being long lost before this act of assembly was made; and these integral and vital parts being extinct, the body corporate, if not dissolved, was so far dead, that it could not be reanimated or put again in motion by any power of its own.
For at the time the act of assembly aforesaid was passed, there were but seven of the twenty-four persons named in the charter of 1755, who were not either dead, or who had not resigned their trusts, to wit:
the last of whom was civilly dead, he having been attainted of high treason; and upon a careful investigation of the minutes of the board, we find that there were never present at the election of a new trustee, from the date of the last charter, thirteen members, except on the Llth January, 1757, when Benjamin Chew, Esq. was chosen to be one of the trustees, so that with him there were but seven (were there no other objection) who were capable of doing any business.
By the last charter the trustees were enabled to fix the number ca. pable of doing business at a meeting, which number so met shall by the majority of votes transact any particular affair or business, in as ample and effectual a manner as if all the said trustees were present; ex cepting always the nominating, constituting and discharging the provost, vice-provost, professors or any of them, in all and every of which acts there shall be thirteen members of the said corporation present and consenting. If therefore thirteen members were not only required to be present, but consenting to the nominating, constituting and disa charging one of the professors, it seems reasonable to conclude
that an equal number at least was requisite for the nominating and constituting a trustee. However, as to the nunber necessary for electing a trustee, the charter is silent, and therefore it appears to us, that this act must be done agreeably to the rule of the common law, which, in such case, always requires a majority of the whole society. But be that as it may, it is exceedingly clear that thirteen members were absolutely necessary to the appointing or removing the provost, vice-provost or a professor, and if there were not the number sufficient for these purposes, the vital parts of the body corporate were extinct.
On the 1st of June, 1778, the names of those who were said to be trustees, were, according to information from the minutes of the board and otherwise, twenty-one in number, of whom eleven were urable to execute the trust, by neglecting to take in due time the oath of allegiance and abjuration, and three others were civilly dead, they having been attainted of high treason; so that seven only remained who were capable of executing any part of the trust, and of these, three had remained with the British army in the city, and voluntarily put themselves under the power and dominion of the enemy.
The following remarkable entry appears in the minute book of these gentlemen, dated the 18th June, 1779; six members present:
“ It was also resolved, that Mr. , not having for many years appeared at the board, and being now removed to New York, bis place shall be supplied at this board by the choice of a new trnstee.” On this we shall only observe, that these gentlemen well knew that
had been attainted of treason long before, of whích they take no notice, but on the contrary, resolve that the place of - shall be supplied, determining by implication, as far as they could, that the act of attainder was void and of no effect, and declaring, in the face of a law of their country, that his place as a trustee was full, till vacated by his removing to New York'; for we find that by charter going to live five miles from Philadelphia city, vacated the seat of a trustee.
There appears another entry among the minutes of these persons, of the 28th of June, 1779, which is as followeth : “Present eleven members. It being resolved, that the seats of and
are vacant, it is agreed to choose two new trustees in their room on the third Tuesday in July, of which due no. tice is to given all the trustees as usual."
We remark on this proceeding that these gentlemen could not, nor could any corporation vacate the seat of a member by a bare resolve, but they did not choose to assign their attainder as a reason, and they were now afraid to assign any other; for this was done after the house of assembly had heard of their inimical disposition towards the American cause and the revolution, and had appointed a committee to enquire into their conduct and affairs.
2 Because no new trustee could be elected and take his seat at the. board, without taking an oath of allegiance to the king of Great Britain; which was made a condition precedent by the charter.
3. Because the corporation passed a bye-law on the 14th day of June, 1764, whereby the provost was always to be a member of the church of England, and the vice-provost to be a person dissenting from that church ; and no person afterwards elected a trustee was to be permitted to take his seat at the board, until he subscribed the same. By whịch the original plan and foundation of the seminary was narrowed,
an addition made to the charters, contrary to their spirit, and in the face of them; and the trustees were bound in an arbitrary manner, to support this bye-law. Viewing this bye-law in every light, and perceiving its tendency and operation, we conceive that it amounts to a forfeiture of the said charters.
4. Because the education of youth has been always considered by the greatest philosophers and lawgivers, as the most certain source of the tranquility and happiness both of private families and of states and empires. Youth are as the nursery of the state, and from among them magistrates, ministers, and all persons placed in authority and influence are taken; and it is evident that the good education of those who are one day to fill those places, will have a powerful effect on the whole body of the state, and stamp the spirit and general character of the whole nation. The republic is as much interested in the proper education of children as their parents, and therefure it behooves the state to take care that in public seminaries and schools, they be early inspired with a love of their country, respect for its laws, and a taste for the principles and maxims of the state wherein they are to spend their lives. The spirit and character of a republic is very different from that of a monarchy, and can only be imbibed by education. From these principles, we conceive it was the duty of the legislature of this commonwealth, as guardians of the rights of the people, (and we have no doubt of their power,) after so recent and great a revolution from monarchy, to take especial care of the education of the youth, in the first seminary of the state; to place it under the direction of gentlemen not only of education, but of known republican principles, and of tried virtue; and by all means in their power to prevent the commonwealth from receiving any detriment, either from the influence of men hostile to equal liberty, or inimical to the revolution and independence of this state, or from any other cause. We doubt not that it appeared to the assembly in 1779, which passed the act under consideration, as it doth to us, that the great majority of the late trustees of the college of Philadelphia were not only hostile to our independence, but abettors of the cause of the king of Great Britain, and totally disqualified for such a trust under our present goveroment.
To remedy all these defects, incapacities, forfeitures and evils, legislative interposition became absolutely necessary. They accordingly reanimated the orphan seminary; gave it new guardians; secured its es. tates and interests, which were very near being lost; re-established the institution on its original broad bottoin; provided it with new funds, and bestowed on it a new name and additional honors. In this the general assembly injured no man's property; they violated no part of the constitution of the college, but they added new strength to it. The qualified and worthy gentlemen among the former trustees, at any rate, had but a naked trust in the estates of the college, uncoupled with any interest whatsoever. And upon the whole, so far from censuring the assembly who passed the act referred to, they merit the warmest thanks of their constituents for their wisdom, virtue and just attention to the happiness of their country, displayed on this occasion.
5. Because, that although we highly reprobate all intermeddling of the general assembly with the estates, interests or misdeeds of individuals, who are by the bill of rights secured the privilege of trial by jury, unless the matter be strictly within the cognizance of the house, or be proceeded on by orderly impeachment, yet we have no
idea that corporations, which are the creatures of society, can, under the bill of rights, plead any exemption from legislative regulation. Cases may be supposed with the highest probablity, wherein, without breaking any law that may be devised, à body corporate might become not only a nuisance but dangerous; and therefore we cannot concede that a charter, obtained perhaps by fraud or imposition, or granted through the facility of our representatives, cannot be altered or repealed by any succeeding general assembly. Of this the university of Oxford, left improvidently in the reign of William the third of England, in the hands of the disaffected, is a striking proof. If this doctrine were true, and verdicts ascertaining the abuse of charters were previously necessary, the extravagant inequality of representation in the English
, parliament could never be reduced to original principles; nor the rotten boroughs, as they are called, be deprived of their mischievous privileges For it is plain, that this can only be cured by a law, which shall pass through all their charters. Nay, at this rate, should the bank of North America or any other corporation, become a monster of weight and influence, and be able to counteract and overrule our legislative proceedings, nothing less than a general rising of the people would be equal to the exigency.
We consider that these imperia in imperio, these governments within the government of the state, holding common estates of large value, and exercising the power of making bye-laws, as against the spirit and the policy of democracy, and only to be endured in order to obtain advantages which may greatly counterbalance the inconveniencies and dangers which accompany them. In Pennsylvania we have not a sole executive officer of permanency and weight, sufficient to restrain, and whose interest it is to keep those communities in awe; they may therefore gradually proluce an indirect, yet firm aristocracy over the state, before we be aware of the mischief.
In England, a charter misused may be dissolved in a court of law upon the verdict of a jury; and if the king be deceived by false suggestions of the grantees, the court of chancery has authority to repeat the charter so obtained by fraud. But will it be said, that an act of incorporation passed here can be forfeited or repealed for imposition on the house, unless by the legislature? In fine, this doctrine, that the general assembly ought not to interfere with a corporate body, till a verdict of mis-user has been found against it, involves this absurdity, that one house of general assembly can enact a law that no succeeding general assembly can alter, amend or repeal without the consent of the corporators, who may be highly interested in opposing the interposition of the legislature.
By recurring to the journals of the general assembly, we find that on the 29th and 30th of September and 1st of October, 1779, the said trustees and pretended trustees were heard by counsel before the house; and that a bill for the purpose of confirming the estates and for new modeling the seminary was afterwards ordered, brought in and read in assembly, but from want of time was recommended to the early attention of the next house; and that the succeeding general assembly soon after its meeting, ordered a new bill to be framed for the same purpose, and that although they declined to hear counsel on this subject, they appointed a committee to procure the evidence, papers, &c. necessary for the investigation thereof; and that Dr, William
Smith furnished to the house all the information of which he wað possessed.
George Bryan, John Smiley,
John Whitehill, The preceding pages contain the reports &c. of the council of censors, made under the power delegated to thein, to enquire whether the con.stitution had been preserved in violate; and whether the legislative and executive branches had performed their duty as guardians of the people, or assumed to themselves or esercised other or greater powers than they were entitled to, by the constitution. They embrace, it is apprehended, all the decisions of that body upon the constitntion which can be of any interest to the public. There was a report adopted relative to such proceedings of the supreme executive council, as in the opinion of the council of censors were deviations from the frame. of government, but, the details relate principally to proceedings of the executive council during the struggle for independence. Although the report contains many serious reflections, and cites a great many instances of deviations from the constitution, yet, as they can generally be traced to the particular situation of the state and nation at that period, it is believed the insertion of the report here, would not in any considerable degree serve to explain the powers of. the executive branch of the government.
Under the authority delegated to the council, a committee was appointed to enquire whether the public taxes had been justly laid and collected in all parts of the commonwealth ; also a committee to enquire in what manner the public monies had been disposed of, and whether the laws had been duly executed. These committees examined with great minuteness the subjects referred to them; their powers were extensive, and their duties required great labor and research ; they severally made detailed reports which were apparently discussed very fully by the council, reasons for, and against various parts were entered upon the minutes, and the consideration occupied much time.
These reports are not inserted here for the reason above stated, they principally relate to transactions which sprung from the revolutionary war, and being predicated upon an extraordinary state of things, to which they almost exclusivly relate, their applicability is necessarily limited to similar circumstances.
It is crue the same remark applies to a part of the reports which have been inserted, but it was believed it would be more satisfactory to the public to present these reports entire, though they do contain some matters of a local character, than to destroy their connexion by mak. ing partial extracts..
During the second session of the council, remonstrances signed by upwards of 18,000 inhabitants of the state, against calling a convention were presented, the number of petitions did not amount to 300.
On the i6th of September 1784. The report of the committee of the whole read on the preceding day, was taken up for a second reading. viz. The committee of the whole report, that they have mature