as well as the university,” says Bishop Burnet,[48] “looked on all these proceedings with just indignation.  It was thought an open piece of robbery and burglary when men, authorized by no legal commission, came and forcibly turned men out of their possession and freehold.”  Mr. Hume, although a man of different temper, and of other sentiments, in some respects, than Dr. Burnet, speaks of this arbitrary attempt of prerogative in terms not less decisive.  “The president, and all the fellows,” says he, “except two, who complied, were expelled the college, and Parker was put in possession of the office.  This act of violence, of all those which were committed during the reign of James, is perhaps the most illegal and arbitrary.  When the dispensing power was the most strenuously insisted on by court lawyers, it had still been allowed that the statutes which regard private property could not legally be infringed by that prerogative.  Yet, in this instance, it appeared that even these were not now secure from invasion.  The privileges of a college are attacked; men are illegally dispossessed of their property for adhering to their duty, to their oaths, and to their religion.”

This measure King James lived to repent, after repentance was too late.  When the charter of London was restored, and other measures of violence were retracted, to avert the impending revolution, the expelled president and fellows of Magdalen College were permitted to resume their rights.  It is evident that this was regarded as an arbitrary interference with private property.  Yet private property was no otherwise attacked than as a person was appointed to administer and enjoy the revenues of a college in a manner and by persons not authorized by the constitution of the college.  A majority of the members of the corporation would not comply with the king’s wishes.  A minority would.  The object was therefore to make this minority a majority.  To this end the king’s commissioners were directed to interfere in the case, and they united with the two complying fellows, and expelled the rest; and thus effected a change in the government of the college.  The language in which Mr. Hume and all other writers speak of this abortive attempt of oppression, shows that colleges were esteemed to be, as they truly are, private corporations, and the property and privileges which belong to them private property and private privileges.  Court lawyers were found to justify the king in dispensing with the laws; that is, in assuming and exercising a legislative authority.  But no lawyer, not even a court lawyer, in the reign of King James the Second, as far as appears, was found to say that, even by this high authority, he could infringe the franchises of the fellows of a college, and take away their livings.  Mr. Hume gives the reason; it is, that such franchises were regarded, in a most emphatic sense, as private property.[49]

If it could be made to appear that the trustees and the president and professors held their offices and franchises during the pleasure of the legislature, and that the property holden belonged to the State, then indeed the legislature have done no more than they had a right to do.  But this is not so.  The charter is a charter of privileges and immunities; and these are holden by the trustees expressly against the State for ever.