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 JOHN LOWELL, ESQ. 
 
 REPLY TO A PUBLICATION ENTITLED 
 
 REMARKS ON A PAMPHLET, 
 
 PRINTED BY THE 
 
 PROFESSORS AND TUTORS OF HARVARD UNIVERSITY, 
 
 TOUCHING THEIR RIGHT TO 
 
 THE EXCLUSIVE GOVERNMENT OF THAT SEMINARY. 
 
 Boston : 
 
 OLIVER EVERETT, 13 CORNHILL. 
 
 1824. 
 
43 ,' k .^ 
 
 <£«- ^' j^d^VV-' 
 
 
-49 
 
 Dear Sir, 
 
 On the 17th of the last month, I received a 
 copy of the pamphlet entitled ' Remarks, &c.' from 
 the hands of Dr Ware, sent by yourself, as I un- 
 derstood, with several other copies, for distribution 
 among the members of the immediate college go- 
 vernment, and avowed to be your production. Un- 
 der these circumstances, I have taken the liberty 
 to address directly to you those observations, which 
 occur to me by way of reply to the statements con- 
 tained in the pamphlet. Though you have not 
 placed your name on its titlepage, yet as you have 
 distributed the pamphlet as your own, as the names 
 of the gentlemen whose statements you controvert, 
 the Resident Instructers here, are before the pub- 
 lic, as well as my own in this humble attempt at a 
 reply, I have deemed it every way proper to lay 
 aside the ceremony of addressing an anonymous 
 personage. This course I am the rather led to 
 adopt, as by keeping distinctly in view the charac- 
 ter of the gentleman I address, I shall be the surer 
 to reply to his remarks with the respect which is 
 due to him. If in the haste and warmth of the dis- 
 cussion I should seem to fail in that respect, as I 
 trust I shall not, your candor will forgive it as a 
 human imperfection. 
 1 
 
So 
 
 2 
 
 The remarks I have to offer in reply to your 
 pamphlet would, under other circumstances, have 
 been published as soon as the mechanical labor of 
 writing and printing them could be performed. 
 That an interval of two or three weeks has occurred 
 is OAving to the pressing engagements, amidst which 
 your pamphlet found me, and the indifferent state 
 of my health ; the latter of which you will have the 
 goodness to accept as an apology, for a more slo- 
 venly performance of this undertaking, than I should 
 otherwise myself have thought due to you and to 
 the subject. 
 
 It is my duty also to remark that I am alone re- 
 sponsible for the following observations. I have 
 written and printed them of my own accord. 
 Wherever I speak of and seemingly for my col- 
 leagues, the gentlemen with whom I had the honor 
 to be associated in signing the memorial to the 
 Corporation relative to the chartered constitution 
 of that body, I speak only from presumption. Nor 
 is any of them in any degree accountable for the 
 statements I am about to make, except so far as 
 he may have taken or may take some other occa- 
 sion to sanction them. 
 
 In undertaking the task of replying to your 
 pamphlet, I cannot but feel a mingled sentiment of 
 pleasure and of pain. The strong assurance I feel 
 of the correctness of the views contained in the 
 memorial, — views which your pamphlet is designed 
 to controvert, — occasions me a pleasure in find- 
 ing that no more can be urged against those 
 views by an individual like yourself. Your long 
 connexion with the college, your acquaintance with 
 its concerns, your sagacity as a reasoner, and your 
 formidable power as a controversial writer, are so 
 well known to me, that I cannot but feel gratified 
 
§1 
 
 in finding so little advanced against the memorial, in 
 a pamphlet from your pen. On the other hand, the 
 high private respect which I bear you, and the sin- 
 cere gratitude I feel for your long continued friend- 
 ship, cause me some emotions of pain in entering 
 publicly into this controversy. It shall be my endea- 
 vor to treat the matter, as much as possible, as an in- 
 offensive abstraction, on which friends may differ. 
 The first remark, which I beg leave to make, re- 
 spects the title of your pamphlet, which is the fol- 
 lowing, ' Remarks on a Pamphlet printed by the 
 Professors and Tutors of Harvard University, touch- 
 ing their right to the exclusive government of that 
 seminary.' I object to this title, on various grounds. 
 It is a piece of usual courtesy with controversial 
 writers, who are actuated by no personal bitterness, 
 (and none I know is felt by you,) to allow their op- 
 ponents to avow their own object, at least so far as 
 regards the names, by which they choose that they 
 or their systems should be called. Grotius says, 
 that this is a piece of justice we owe even to Ma- 
 hometans. Now the only caption to the Memorial 
 is < to the Reverend and Honorable the Corporation 
 of Harvard University,' and as such I think you 
 ought to have designated it, in the titlepage of your 
 reply. Had you thought it necessary to go farther, 
 and state on your titlepage the object of our Me- 
 morial, you ought, in my judgment, to have stated 
 it in the words, in which the memorialists have 
 done it, in their first sentence, words which are 
 italicised in the print, in the obvious design of 
 pointing them out as emphatical. Permit me to 
 quote that sentence. ' The subscribers, resident 
 instructers in Harvard University, beg leave to sub- 
 mit the following statements and considerations, 
 relative to the mode, in which, according to the 
 
ff% 
 
 Charter of the Institution, the Corporation of the 
 same ought of right to be constituted? With the 
 object of the Memorial so clearly expressed in its 
 first sentence, I cannot deem it just that you should 
 have stated that object in any other terms. 
 
 It is certainly only on the supposition that the 
 terms substituted by you were fairly equivalent, 
 that the substitution could properly be made. So 
 far is this, however, from the case, that by the spe- 
 cification in your titlepage, you ascribe to the 
 Memorialists an object, not only neither expressed 
 nor implied in the Memorial, but never, I take upon 
 me to say, so much as dreamed of by one of those 
 who signed it. For the purpose of prepossessing 
 the minds of your readers against the document 
 which you review, you attribute to those, by whom 
 that document is subscribed, an object they never 
 conceived ; an object so arrogant and odious, that 
 it is not without the strongest necessity to be laid 
 to the charge of any persons, who have not forfeit- 
 ed their character. 
 
 These exceptions to your titlepage are justified 
 by the fact, that you do not, in your whole pamphlet, 
 make a statement to bear it out. You do not at- 
 tempt to show that our Memorial asserts the right 
 of the professors and tutors ' to the exclusive go- 
 vernment of the seminary,' which on your titlepage 
 you avow to be its object. The most you endea- 
 vor to prove is, that the professors and tutors claim 
 the right of composing the corporation. Now I 
 shall presently offer some explanations, which will 
 show that much of what you have said on this point 
 might have been spared ; and that the Memorialists 
 did not intend merely as professors and tutors to 
 lay claim to the character of members of the cor- 
 poration, I need here only say, that if they had 
 
5$ 
 
 advanced this claim, which is the most you assume 
 in your pamphlet, it would not authorize you to say 
 they claimed to be the exclusive governors of the 
 college. 
 
 I believe I can put this beyond a doubt even in 
 your own mind. You were yourself for many years 
 a member of the corporation ; an active, efficient, 
 and valued member. Did you claim, at that time, 
 for the board of which you were a member, the ex- 
 clusive government of the seminary ? Did you and 
 do you hold, that the overseers (without whose con- 
 currence the corporation can do nothing, and who 
 are also in your opinion the visitatorial board) have 
 no share in the government of the college ? Would 
 you not have thought it hard, had you written, while 
 belonging to the corporation, a memorial touching 
 your right to be a member of that board, should 
 any one have pronounced it a claim to the exclusive 
 government of the university ? 
 
 You see, by this time, that it is not a harmless 
 substitution of words, but a heavy and a wholly un- 
 founded charge, which you have brought against 
 the Memorialists ; a charge, which you have done 
 nothing to support in the course of your remarks. 
 Though I have made this matter of demonstration, 
 you would justly complain, were I to entitle the 
 present letter, ' Remarks on a Pamphlet published 
 with the design of prejudicing the minds of the 
 public against the Memorial of the Professors and 
 Tutors of Harvard College.' If you might justly 
 complain of a titlepage like this, under the circum- 
 stances I have detailed ; I may well complain of 
 the wholly unfounded and injurious charge, which 
 is contained in yours. 
 
 But I proceed to the pamphlet itself. You ob- 
 serve, in the first sentence, that "although this 
 
5-A 
 
 6 
 
 pamphlet purports to be simply a Memorial to the 
 corporation, yet it is in fact an appeal to the whole 
 public, and as such is the fair subject of comment. 
 It is, we believe, rare for memorialists to print their 
 own memorial, before it has been submitted to the 
 body, to tohich it is addressed. The fair excuse 
 might be, that they wished to place a copy in the 
 hands of every member of the overseers ; but it is 
 a departure from usage, since it was competent to 
 the overseers alone to order the multiplication of 
 copies, if they should deem it expedient, and it is 
 well known to be the common course. We find 
 no fault, however, with the measure, since it has 
 placed it in the power of every friend of the college, 
 to treat it as a public question. " 
 
 There is some inaccuracy as to facts, in this 
 statement, and more, as I think, as to principle ; 
 and as the drift of it is to place on the Memorialists 
 the burden of having made the subject ' a public 
 question,' it is necessary to dwell a moment upon 
 it. — The Memorial was presented to the corpora- 
 tion about the last of March or first of April, in 
 manuscript. In the course of April, it was com- 
 municated to you in manuscript by the corporation, 
 and by you made the subject of four or five written 
 sheets of remarks; and it teas printed in the last 
 week of May, about two months after it teas in the 
 hands of the corporation. So inaccurate is your in- 
 timation that it was printed before it was submitted 
 to the body, to whom it was addressed. About six 
 weeks after the memorial was submitted to the 
 Corporation, finding that no answer was returned 
 by the Corporation, and no intimation given that 
 any would be returned but the contrary, and it 
 being matter of notoriety, that the Overseers were 
 to meet on very important business, touching the 
 
 
5S 
 
 whole concerns of the College, on the first of June, 
 it was determined to make a written Address to the 
 Overseers, to which the Memorial to the Corpora- 
 tion should be appended. The mode of doing this 
 was left to a Committee of the Memorialists, and 
 knowing the important business before the Over- 
 seers, the little probability that a document, which 
 it would take two hours and a half to peruse, would 
 even be read at the meeting, and considering the 
 size of that body, and the manifest impossibility of 
 furnishing written copies for all its members, the 
 Committee determined to print the Memorial to the 
 Corporation, and in that form append it to the writ- 
 ten address to the Overseers, to each of whom also 
 a copy was sent. — No part of our written address 
 to the Overseers has ever been printed, except that 
 a quotation from it is in your own pamphlet, it be- 
 ing in your hands as chairman of the Committee 
 to whom it stands referred. Whether this public 
 quotation, in an anonymous pamphlet, of written 
 papers officially in your hands, be ' a departure from 
 usage,' I am unable say. I may add to this state- 
 ment, that though the Memorial was printed, it was 
 not published, nor has a copy ever been sold. It 
 was sent only to the members of the Overseers in 
 the first instance, then to the Corporation by the 
 request of that body. A very few copies, perhaps 
 a dozen and a half in all, have been given to other 
 individuals, mostly on solicitation ; some of them 
 to gentlemen, understood to be unfriendly to the 
 Memorial. Under these circumstances, I am not 
 sure that in exposing your pamphlet for .sale in the 
 Booksellers' shops, and advertising it in the news- 
 papers, you ought not, at least, to divide the burden 
 * of bringing the question' before the public. 
 
 But I am not prepared to admit, that, even had 
 the Memorialists printed an address to the Over- 
 
&6 
 
 seers, before it was submitted to them, they would 
 thereby have been guilty of a departure from usage ; 
 or that 6 the Overseers alone are competent' to or- 
 der the multiplication of copies. I believe that 
 nothing is more common, than for memorials and 
 addresses of considerable length, intended for a 
 large body, to be printed ; often even in the news- 
 papers. It may indeed happen that Memorialists 
 will frequently prefer that the body they address 
 should be at that expense ; and I trust it is no inju- 
 ry to our Alma Mater to have been willing, at a 
 time when her funds are much straightened, to 
 relieve her even from this trifling charge. — As to 
 the intimation, that ' the Overseers alone are com- 
 petent to order the multiplication of copies,' did I 
 not suppose it had fallen from your pen in mere 
 haste, I should pronounce it a most extravagant 
 suggestion. I believe it was never before advanced 
 in this country, that any man or any body of men 
 were not competent to publish any thing they please ; 
 on their peril, of course, if they violate the law of 
 the land. I have not understood that the Jaw of 
 the land forbids the Professors and Tutors of Cam- 
 bridge University from printing a written docu- 
 ment of thirty close pages, chiefly of a historical 
 nature, and making that printed document the part 
 or the whole of a communication to the Overseers, 
 or to any other body in the State, or out of it. There 
 is, I apprehend, but one course, which the Over- 
 seers ' are competent to adopt,' if they wish to pass 
 the highest censure on the printing of such a docu- 
 ment, viz. to refuse to receive and consider it. 
 Did they do this, in the case of our Memorial ? No, 
 Sir ; they received it, and referred it to a most res- 
 pectable committee, of which you are the chairman. 
 On a document thus referred to you, I will not deny 
 
*; 
 
 your competence, as a private individual, to print 
 and publish any thing you might think proper ; but 
 whether, considering you are Chairman of the Com- 
 mittee, to whom the subject is officially committed, 
 the publication of an anonymous pamphlet on the 
 subject containing quotations from the written ad- 
 dress to the Overseers, which can only be officially 
 in your hands, be according to usage, I am again 
 unable to say. It is my private opinion, that (un- 
 less you have instructions from the Overseers to 
 that effect) not even the whole Committee, far less 
 any one member of it, has a right to publish a word 
 of that written address officially in their hands ; 
 and that your having done so is a just ground of 
 complaint. 
 
 Your next subject of remark, which you state as 
 the first objection that occurs in reading the Memo- 
 rial, is, that " the present officers of the College 
 should assume such a tone of complaint, and express 
 such a strong sense of injustice." Again, " it must 
 therefore excite surprise in all unprejudiced minds, 
 to read the following sentiments in the Memorial, 
 tending to fix the impression of purposed injustice 
 on the part of gentlemen, [the Corporation] who 
 had been invited to bestow their time and attention 
 on the concerns of that institution." — You then 
 quote two sentences, containing together six and a 
 half lines, and conveying the intimation, on the 
 part of the Memorialists, that the present Corpora- 
 tion had gradually formed itself between the Resi- 
 dent instructers and the Overseers, and excluded the 
 former from the exercise of many of its privileges. 
 
 Now I appeal in turn to all unprejudiced minds, 
 whether your charge be not wholly unfounded. 
 The Memorial is drawn up with an occasional an- 
 imation of manner, very natural to those who are 
 2 
 
tffe 
 
 10 
 
 deeply convinced and warmly interested; but I 
 hesitate not to pronounce it respectful to the gen- 
 tlemen of the Corporation addressed. There is no 
 imputation "of purposed injustice." In the course 
 of your remarks you expressly say that our state- 
 ments are brought forward as " new discoveries." 
 This is not wholly the fact ; but if we adduce them 
 as new discoveries, how could we accuse the gen- 
 tlemen of the Corporation of a purposed injustice, 
 in not having acted on facts supposed to be thus 
 newly discovered ? But however this be, besides 
 two or three very respectful notices of the Corpo- 
 ration, in the course of the Memorial, its general 
 tone is the remotest possible from any disrespect- 
 ful intimation. It is true, that in the course of the 
 Memorial, the members of the Corporation, at cer- 
 tain periods, are directly and openly charged with 
 oppressive and unjust conduct. Their order of 
 1716, that " a Fellow of the house" should be subject 
 to re-election every three years, was grossly unjust 
 and oppressive. It is no matter who enacted it ; 
 it was a cruel device to get rid of an obnoxious 
 man, against whom no charge sufficient for his re- 
 moval could be brought ; and the Overseers, in re- 
 fusing to concur, the first time the Corporation 
 attempted to displace a tutor in virtue of this rule, 
 gave a proof that they also esteemed it unjust. 
 But that the Professors and Tutors of the College 
 of the present day may not comment upon the con- 
 duct of the Corporation at any former period, with- 
 out exposing themselves to a charge like that you 
 now make, I cannot allow. 
 
 I pass over some more matter of the same gen- 
 eral character, to come on page 7th of your pam- 
 phlet, to the first direct counter statement, which you 
 make against the memorial. I will first observe 
 
*9- 
 
 H 
 
 that it has been charged on the memorial, (justly 
 perhaps,) that it is deficient in technical precision 
 and accuracy. I cannot but regret, however, that 
 in what little precision it has, you have not follow- 
 ed it. The general subject of the memorial, viz. 
 " the mode in which, according to the charter of the 
 Institution, the corporation of the same ought of 
 right to be constituted," is categorically stated in the 
 first sentence. After its having been next observed 
 in the Memorial, that the corporation subsists by vir- 
 tue of the charter of 1650, which charter in its pre- 
 amble speaks of the " President and Fellows" of the 
 college ; it is stated, that " the first object of this Me- 
 morial is to prove that Fellow, imported a person 
 resident at the college and actually engaged there 
 in candying on the duties of instruction or govern- 
 ment, and receiving a stipend from its revenues?** 
 In support of this proposition four arguments are 
 adduced, viz. 1. Analogy of the English Univer- 
 sities : 2. The form of induction anciently used 
 at Harvard, which was quoted at length : 3. Ad- 
 mission of the fact by members of the corporation : 
 4. The traditionary possession by the resident tu- 
 tors of a lot of land bequeathed to the Fellows. 
 
 Now whatever error of fact, or flaw in argument, 
 the memorialists committed, this course seems 
 direct and logical, and entitled to be met and an- 
 swered directly. I maintain that, when it is plain- 
 ly avowed to be the first object of a document to 
 prove a simple, intelligible proposition, and argu- 
 ments bearing on that point and no other are ad- 
 duced and numbered, that it is the duty of a 
 controvertist to meet the question on that ground ; 
 or at any rate, not to turn it to a very different 
 point, only deduced by inferences not acknow- 
 ledged by the memorialists. This, however, you 
 do in the broadest manner. You state, page 7th, 
 
60 
 
 12 
 
 " The claim set up by the memorialists is to the exclusive 
 possession of all the seats in the corporation. Nobody but 
 Fellows, they say, are eligible. Every tutor is ex officio a Fel- 
 low ; and although no professors existed in the college till 
 1721, yet they maintain, that every professor is also ex offi- 
 cio a Fellow. Nothing supporting this construction can be 
 found in the charter, nothing in the laws or statutes of the 
 university; but yet they contend, that they are all Fellows, 
 and that the choice must be confined to them. This is not 
 indeed directly asserted, but it is implied in every part of the 
 memorial." 
 
 This, however, is very far from being the real 
 state of the question, which is fairly propounded in 
 the first sentence of the memorial. I am willing 
 to allow, that there is one, and possibly a few other 
 detached sentences, which taken alone, and without 
 any reference to the train of argument, might au- 
 thorize the inference, that the memorialists claim 
 as a right, that all elections to the Corporation be 
 from their number. The last sentence particularly 
 of the memorial states the "claim of the resident in- 
 structed to be elected to vacancies," in the board of 
 President and Fellows. But yet, after all the labor 
 bestowed in the Memorial, to prove that the Fellows 
 were required " to be resident at the college and 
 actually engaged there in carrying on the duties of 
 instruction or government, and receiving a stipend 
 from its revenues," it might have been hoped that 
 the leading proposition of the memorial was too 
 obvious to be mistaken. Supposing it proved, that 
 fellows must, by the charter, be resident in- 
 structors or governors ; and the memorialists being 
 with one exception all that are usually reckoned as 
 such ; it will not be thought strange, that they 
 speak of their claim to be elected to places in the 
 Corporation. They did not mean to deny that any 
 person whatever could be elected a Fellow. They 
 
61 
 
 13 
 
 do not argue to the question > whether one of the 
 resident instructers must be chosen. It is the 
 converse of the position, which they maintain ; that, 
 in the intendment of the charter, the person elected 
 to the office of Fellow must, if he accept it, become 
 a resident instructer or governor. As it is plain, 
 that in almost every case, if this interpretation of 
 the charter were established, some one of the resi- 
 dents would be chosen, the memorial, somewhat 
 loosely perhaps, alludes to it as a matter of course. 
 But that the memorialists should (however loose 
 their language) be really thought to hold, that 
 " every tutor and professor is ex officio a Fellow," 
 would seem incredible, unless they are thought to 
 be idiots. The memorial is signed by eleven pro- 
 fessors and tutors. To suppose, that this memori- 
 al maintains, that all the professors and tutors are 
 ex officio Fellows, by virtue of a charter, that limits 
 the number to five, is to think more meanly of the 
 capacity of the memorialists than, I am sure, you do. 
 — I could have wished you had forborne to charge it 
 upon them, especially by way of inference ; and that 
 too, while you avoid meeting them on the point 
 which they do categorically maintain. That point 
 I will now repeat in a series of propositions, which 
 shall be as clear as I can make them. 
 
 1. The general question is as to the mode, in 
 which, according to the charter of the institution, 
 the corporation of the same ought of right to be 
 constituted. 
 
 2. By that charter, the College is made a corpo- 
 ration, consisting of a president, five fellows, and a 
 bursar or treasurer. 
 
 3. The first object of the memorial is to prove, 
 that " Fellow" imported a person resident at the 
 College, and actually engaged there, in carrying 
 
(52 
 
 14 
 
 mi the duties of instruction or government, and 
 receiving a stipend from its revenues. 
 
 But though you have not directly met the third of 
 these points, and though you have left unnoticed 
 many of the arguments adduced in the memorial in 
 support of it, you nevertheless reason incidentally 
 against it ; and as this is the only part of your pamph- 
 let, which touches the true question, I shall strive to 
 collect, arrange, and answer all your counter state- 
 ments on this point. — I will first examine your mode 
 of replying to the arguments, by which that propo- 
 sition is sustained in the memorial ; secondly, I will 
 state and if possible answer such arguments as you 
 bring against the proposition ; thirdly, I will state 
 such additional arguments, as occur to me in sup- 
 port of it. 
 
 The first argument in the memorial to this point 
 is, that such is the quality of Felloics in the English 
 Colleges, at which several of those, who framed the 
 charter of our College were educated. The argu- 
 ment is drawn out at too much length to be repeat- 
 ed, and may be seen on pages 2d and 3d of the 
 Memorial. It is, in brief, that in founding a college 
 here, there is a fair presumption, that the founders 
 used so well known a technical word, as Fellow, 
 in the same general sense, in which it was used in 
 the English colleges, in which some of these found- 
 ers were brought up. — How is this argument an- 
 swered in your pamphlet ? Incidentally, and in the 
 following terms. 
 
 " It surely will not be pretended, that by using the word 
 Fellows, in the Charter, our ancestors intended blindly to 
 adopt all the statutes affecting English Fellows, so as to re- 
 quire subscription to that hierarchy, which they regarded as 
 an abomination ; and yet it would be difficult to see on what 
 ground the mere use of a general term, applied to the associ- 
 ates of most other scientific societies should be construed to 
 
68 
 
 15 
 
 limit the choice to resident instructers by analogy to the 
 British usages, and yet reject the other, which are quite as 
 inseparable usages, of celibacy and subscription to Episco- 
 pacy." 
 
 But the simple question is, what did the found- 
 ers understand by the term ? Something, we pre- 
 sume, they meant, or they would have used neither 
 that nor any other term. If they be admitted then 
 to have meant any thing by the term Fellotc, the 
 next question is, what did they mean ? Now in 
 ascertaining the meaning of disputed words, it is a 
 fair course to reason from the analogy of the time. 
 In interpreting a charter for an American College, 
 framed by men, many of whom had been in Eng- 
 lish colleges, a fair argument from analogy may 
 be drawn from the meaning of the term in the 
 English colleges, to its meaning in the American. 
 It is accordingly well urged, that Fellow in the Eng- 
 lish colleges means a person resident, entrusted 
 with powers of instruction, or government, and 
 maintained by the college funds; and that, there- 
 fore, it may be presumed to have meant something 
 like the same thing in a new college charter, 
 framed at a time, when no other kind of college 
 Fellows are known to have existed. — You attempt 
 to meet this argument, by showing that it proves too 
 much ; for that Fellow not only imports in the Eng- 
 lish colleges a resident, but likewise carries with 
 it the obligations of celibacy and episcopacy. It is 
 not pretended, however, by the memorialists, that 
 the strictest identity between the English and 
 American Fellows is to be inferred ; but only a 
 similarity. The Fellows in many of the English 
 colleges were probably held by their foundations to 
 say mass. This was actually objected to the Fel- 
 lows of Magdalen, Oxford, by the agent of James II. 
 
6A 
 
 16 
 
 When those Fellows stood upon their right to 
 choose their own master ; saying, that their founda- 
 tion provided that they should choose him ; the 
 king's agent replied, that their statutes also pro- 
 vided that they should say mass ; — and he seemed to 
 think, as you do, that because they differed in one 
 point from their predecessors they might in all. I 
 am, however, willing to leave this argument to the 
 judgment of the unprejudiced, who shall say whether 
 it is probable, that Englishmen framing a charter 
 for a college, and using the word Fellow, without 
 any explanation, in the year 1650, could have in- 
 tended non-resident gentlemen, wholly disconnect- 
 ed with the instruction and immediate government 
 of the college, and receiving nothing from its funds; 
 and whether it is a fair and sufficient answer to our 
 argument to say, that they could not have intended 
 any similarity with English Fellows, because they 
 did not intend an identity. 
 
 It may just be observed, that all those points, 
 in which the English Fellows, since the refor- 
 mation, differ from those before, and the Fellows 
 of our charter of 1650 from both, are probably 
 connected with the subject of religion ; and that 
 no departure was made by our forefathers except 
 in matters affected by the progress of reforma- 
 tion, in which progress they went a little farther 
 than the English church. Thus in the English 
 colleges, founded before the reformation, the 
 Fellows were regular or secular priests, and as 
 such, bound to papacy and celibacy. After the re- 
 formation, the first, of course, fell away ; and Epis- 
 copacy (as the national communion) succeeded. 
 That the obligation to celibacy was not also re- 
 moved from the Fellows is probably owing to the 
 fact, that the fellowships in the colleges are con- 
 nected with livings in the church, to which the 
 
ff§ 
 
 17 
 
 Fellows succeed in order, and which, when attained, 
 furnish the means of supporting a family. In New 
 England, a farther reformation had been made, and 
 Congregationalism succeeded to Episcopacy. As 
 there was no established church with rich livings in 
 reversion for the Fellows, it is equally obvious, that 
 if the fellowships were designed to be made perma- 
 nent foundations, the injunction of celibacy must 
 here be disused. I make these remarks, merely to 
 show, that the various modifications of the office of 
 Fellow, which it must have undergone since its pri- 
 mitive establishment before the reformation, instead 
 of being effected by arbitrary statutes from time to 
 time, resting on new views of expediency, are only 
 such as the successive changes in the one great in- 
 stitution of religion have forced upon an office, 
 otherwise essentially unaltered. 
 
 The second argument, by which, in the Memori- 
 al, the proposition that Fellows were resident in- 
 structed or governors was attempted to be proved, 
 is drawn from the form of induction, anciently used, 
 into the office of Fellow. Being of moderate 
 length and of itself, in my judgment, decisive of 
 the question, I shall here quote it entire, in the 
 English translation of it, the original being in La- 
 tin. Its title is, " For the Admission of Fellows." 
 
 " 1. You will give all reverence to the honorable 
 Magistrates and venerable Ministers and President, 
 as overseers of the College. 
 
 " 2. You will be religiously careful, so long as 
 you shall here abide, of observing all the salutary 
 laws of this Society, as much a» in you lies, and 
 causing them to be observed by all the members of 
 the College each in his place. 
 
 " 3. You will be especially careful to instruct all 
 the Students committed to your charge, or who 
 3 
 
66 
 
 18 
 
 may hereafter be so committed, in all literature di- 
 vine and human, and in all blameless and virtuous 
 manners. 
 
 " 4. You will sedulously watch that the College 
 suffer no injury eithef in its property, its buildings, 
 its revenues, or other appurtenances belonging, or 
 which may belong unto it, during your residence 
 here. 
 
 " We, then, the Overseers of the College, promise, 
 on our part, that we will not be wanting to you, in 
 any wise ; that we will confirm you by our authori- 
 ty and power in your legitimate functions against 
 all opposers ; and, in proportion to the means of 
 the College and in our small measure, we will 
 appoint you stipends, which shall suffice for your 
 food and clothing and the prosecution of your 
 studies y 
 
 If any one doubt that the persons to whom this 
 ceremonial was administered, were residents at 
 Cambridge, employed in the instruction, govern- 
 ment, and management of its concerns, and as such 
 supported from its funds, I must with him resign 
 the argument, for want of common grounds of rea- 
 soning between us. — The question is, what was a 
 Fellow in the intendment of the charter ; and to 
 answer this question, the Memorialists produce the 
 form of admission of Fellows in existence when 
 the charter was given, in which form the points of 
 residence, instruction, and maintenance are all ex- 
 pressly enumerated. — Now, how is this argument 
 met in your remarks ; in the notes to which you 
 speak of " destroying the only remaining prop of 
 the Memorialists ?" You take no notice of it what- 
 ever, in the whole course of your pamphlet. The 
 question being, what was a Fellow in the intend- 
 ment of the charter, and the Memorialists having 
 
6 
 
 / 
 
 19 
 
 quoted from the college statutes a law, in which 
 various duties belonging to Fellows are enume- 
 rated, which law was in force before and after the 
 charter was granted, you pass it over in deep 
 silence in the body of your pamphlet. There is, 
 indeed, on the last pages of your appendix, an allu- 
 sion to this form of admission, which allusion I 
 have repeatedly read in the hope of extracting from 
 it the precise meaning with which you wrote it. In 
 this I have been unsuccessful ; and without any 
 wish to find, I have not been able to escape, the 
 appearance of contradiction between its consecu- 
 tive clauses. The sentence to which I refer is the 
 following, " There was a form of admitting Fellows 
 in the earlier days. If being a Fellow necessarily 
 made a man a tutor, or if in other words, the term 
 Fellow and Instructer were entirely in their im- 
 port alike, what was the condition of the instructers 
 or tutors, after the form required by the law of ad- 
 mission of Fellow was given up ? Since, whether 
 right or wrong, the corporation de facto have for 
 one hundred and fifty four years ceased to admit 
 any Fellows, and since none of the present incum- 
 bents pretend to any such election, or that they ever 
 made the very solemn declarations required by 
 the college statutes as conditions, how can they be 
 Fellows ? The college had an unquestionable right 
 to prescribe rules of admission and subscription 
 on the part of admitted Fellows. These rules have 
 never been repealed" 
 
 On this passage I would first remark, that it bears 
 not at all on the argument of the memorialists, 
 which is not that they, as instructers, are also Fel- 
 lows, but that the Fellows ought to become resi- 
 dents. But I propose to examine this passage for 
 a different purpose. It is said, toward the begin* 
 
68 
 
 20 
 
 ning of it, that this form, required by the law of 
 admission, has been given up, and it is by impli- 
 cation asserted, that it has been given up for one 
 hundred and fifty four years. At the close of the 
 quotation, however, it is stated, that the rules of 
 admission have never been repealed. This appears 
 to me inconsistent with the previous intimation. 
 There is only one way of explaining it, which avoids 
 this contradiction. When you say, in the first 
 place, that the form required by law of admission 
 as Fellow was given up, you may mean, that though 
 not repealed, it was neglected and disused ; and 
 this seems the only interpretation consistent with 
 the concluding remark, that " these rules of admis- 
 sion never were repealed." Supposing this to be 
 the case, you as a lawyer, are better able than I, to 
 pronounce on the conduct of the Corporation in so 
 long neglecting to enforce statutes that date from 
 the origin of the college, statutes on the faith of 
 which the early benefactions to it were wrung from 
 the poverty of the country by solicitations repeated 
 to importunity, and on the faith of which also the 
 State annually paid, what were then esteemed large 
 sums of money for the support of the college. 
 These statutes you say have never been repealed. 
 It is now, by your admission, the unrevoked law of 
 the college that every Fellow shall promise to reside 
 and instruct ? Has one of the present Corporation 
 promised this ? How then, on your own admission, 
 can either of them be Fellows ? The law (for such 
 you call it) was binding when passed ; for you say 
 "The college had an unquestionable right to pre- 
 scribe rules of admission and subscription, on the 
 part of admitted Fellows." The law is binding, for 
 you say in the next sentence : " these rules have 
 never been repealed."— What then becomes of the 
 
6 9 
 
 21 
 
 right of the present members of the Corporation, 
 chosen in defiance of binding unrepealed laws ? 
 
 I return, however, from this digression, to re- 
 peat my remark, that though you profess to make 
 thorough work with the Memorial, you pass over 
 in silence this very important argument, drawn from 
 the form of admission of Fellows, to ascertain the 
 nature of the office of Fellow, in the intendment of 
 the charter. You will observe that I say nothing 
 of that form being now binding. Whether it was 
 disused one hundred and fifty years ago, as I un- 
 derstand you say, whether it is nevertheless unre- 
 pealed, as you also say, I am ignorant. My own 
 opinion is that instead of being given up one hundred 
 and fifty four years ago, it continued in use till about 
 sixty years since ; but as it is a matter of no impor- 
 tance to this argument, I will not dwell on it. If 
 this form of admission is not repealed, I grant that 
 it might have been at any time, and any other or 
 no other substituted in its place. But what I do 
 urge and that with emphasis, is, that while it was 
 in use, it shows the nature of the office to which 
 it was applied. I do say that no Fellow could sub- 
 scribe that form, without residing at the college, and 
 without instructing such students, as were commit- 
 ted to his care. I do say, that this form is allowed 
 by you to have been in force till at least twenty years 
 after the charter ; and therefore I infer that you 
 did not answer the argument drawn from it as to 
 the meaning of the charter, because it is unanswer- 
 able. 
 
 The third argument, by which the Memorialists at- 
 tempt to prove that " Fellow," by the charter, intend- 
 ed a person residing at college, was the admission 
 of the fact by competent and unsuspicious authori- 
 ties. Those of the late Rev. Dr Eliot and of the 
 
/ 
 
 
 
 22 
 
 Corporation of 1812 were quoted. The nature of 
 this argument is as follows. Several years ago and 
 while no controversy then existed on the point, learn- 
 ed men, members of the Corporation or of the over- 
 seers are led, in their researches into the antiqui- 
 ties of the country or of the college, to state, without 
 any appearance of uttering a hazardous or doubtful 
 opinion, that Fellow and tutor originally were the 
 same ; and this, I maintain, is the very strongest 
 argument from authority that could be brought to 
 bear on this point. — The Rev. Dr John Eliot was 
 universally acknowledged to be as well versed in the 
 history and antiquities of New England and of the 
 college, as any of his contemporaries. — He was a 
 man of singular fairness, he had long been a mem- 
 ber of the board of overseers, and five years a menv 
 ber of the corporation, when in 1809, in a treatise 
 on the ecclesiastical history of Massachusetts, he 
 says of Samuel Mather " he was the first, who ever 
 held the office of Fellow, which then was the same 
 as instructer or tutor." I do not mean to ascribe 
 any weight to Dr Eliot's opinion beyond what be- 
 longs to the grounds on which he formed it. But 
 I maintain that an opinion so decidedly expressed 
 by a man so learned in this subject, so impartial, 
 and yet, as a nonresident member of the corporation, 
 so little likely to be swayed toward the views taken 
 in the memorial, is of very great weight in confirm- 
 ing those views. You, sir, as well as I, knew Dr 
 Eliot, and neither of us can believe him a man to 
 broach such a proposition, from his own imagina- 
 tion, or any thing in short but very clear grounds. 
 Though it does not fall within my design, in this 
 part of my remarks, to adduce new arguments in 
 addition to those contained in the memorial, yet I 
 shall, for the sake of clearness, appeal to another 
 
1± 
 
 25 
 
 authority, to the same effect as Dr Eliot's. The 
 Rev. Dr Holmes, who stands certainly without a su- 
 perior, if I ought not to say without an equal in his 
 acquaintance with the antiquities of our country, 
 whose research and exactness are known to all, to 
 whom American history is known, in relating the 
 life of Mitchell, observes in a note, (p. 49, history of 
 Cambridge,) " In the infancy of the Institution, a 
 tutor was ex officio a fellow of the college." — Will 
 any one say, that the authority of men like Dr 
 Holmes and Dr Eliot, on a point of ecclesiastical 
 antiquity in New England, a point not then matter 
 of controversy, and with respect to which nothing 
 existed to bias their minds, is not of very great 
 weight ? — Is it not entitled to notice ? Ought not 
 some attempt be made to explain the sources of the 
 error, if these gentlemen have fallen into one ? — And 
 yet of Dr Eliot's authority, which was quoted in the 
 memorial as a ground of argument, you take no no- 
 tice whatever. 
 
 But the memorial also quoted the authority of the 
 Corporation of 1812 to the same effect, and you 
 notice this their quotation, as containing an impor- 
 tant omission, made as you say, (italicising the word,) 
 probably by inattention. I will quote the passage. 
 
 " From the commencement of the college and for 
 more than half a century, the tutors, who with the 
 president conducted the instruction and immediate 
 government were called " fellows of the college. 57 
 [So far the memorialists cite the note, but they omit 
 the conclusion, as follows.] After the establish- 
 ment of the Corporation, there were " fellows of the 
 house or college" and " resident Fellows" and " Fel- 
 lows of the Corporation.' This name is now and 
 has been for more than sixty years, confined to the 
 " members of the Corporation" ; " that is, (you add,) 
 
/ 
 
 t 
 
 24 
 
 the others have been since discontinued, but the title 
 of fellows of the Corporation has existed from the 
 very day of the charter, without a moments interrup- 
 tion." 
 
 It is most true that this omission is made in the 
 memorial, but not through inattention, far less with 
 a design of suppressing the conclusion of the note, 
 on account of what it contains. Had this been the 
 design of the memorialists, they would not proba- 
 bly have been so minute in their reference to the 
 passage. I may state however what, of course, does 
 not appear in the memorial, that as that paper was 
 drafted, the whole note was quoted, and the last 
 clause made the subject of detailed animadversion. 
 But as those remarks were of the nature of a di- 
 gression, tenderness to the name subscribed to the 
 document of the Corporation of 1812, a name, how- 
 ever, as I understand from your pamphlet not ac- 
 countable for the contents of that document, led to 
 the suppression of those remarks, and the part of 
 the note to which they refer. But I will now say 
 that the part of the note omitted in the Memo- 
 rial, and quoted with some triumph by you, consists 
 of statements so gratuitous, so loose, and so contra- 
 dictory, as to excite emotions of regret. — The im- 
 plication, (for it is not asserted,) that with the charter 
 originated the distinction between Fellows of the 
 house and Fellows of the corporation, is made with- 
 out a shadow of proof. It is not merely gratuitous, 
 but contradicted by all we know of its history. 
 As to the fact, which you deduce from this note, (as 
 if the bare assertion of an interested party could 
 settle any question,) that the title of Fellows of the 
 corporation has existed from the very day of the 
 charter, without a moment's interruption ; that title 
 can never, in any proper sense, be said to have ex- 
 isted at all, not even now. It has been more or 
 
73 
 
 25 
 
 less used, in a loose way, especially of late years, 
 and as I still think for the reasons stated in the Me- 
 morial, p. 10. But it never was, and it is not now, 
 a title known to the charter. The corporation has 
 no other title, legally, than that of "President 
 and Fellows of Harvard College," and the very 
 phrase ' 'Fellows of the Corporation" is a barbarism. 
 The Fellows cannot be of the Corporation ; they 
 are the Corporation. They cannot be Fellows of 
 themselves. 
 
 The main reason, however, why the Memorial, in 
 its quotation of the note alluded to, stopped short 
 with the admission of the corporation, that for more 
 than fifty years the tutors were called Fellows of 
 the college, was, that this admission was all, that 
 concerned the memorialists. The fantastic device 
 of Fellows of the house, originally contrived to 
 evade the charter, and sanctioned by nothing in it, 
 was of no concern to the Memorialists ; and its 
 having been coeval with the charter being intimated 
 without a shadow of proof, as it did not deserve, so 
 it did not receive their attention. — I shall be happy, 
 however, to see an argument to prove that two 
 sets of Fellows were known to the charter, or the 
 earliest practice under it. 
 
 With the exception of your remark on this omis- 
 sion, you take no notice whatever of the argument 
 from authority adduced in the Memorial. 
 
 The fourth and last argument, to this point, in 
 the Memorial, is drawn from the traditionary pos- 
 session of a certain lot of land. A small field in 
 Cambridge was very early bequeathed to the Fel- 
 lows, and was called " Fellows' Orchard." That 
 field, till two years ago, was solely and exclusively 
 possessed and rented by the resident tutors. It was 
 therefore a permanent relic of times, when Tutors 
 4 
 
J4- 
 
 26 
 
 and Fellows were one ; and when funds left to the 
 maintenance of Fellows were applied to that pur- 
 pose. The argument is overwhelming. It is tan- 
 gible ; one may go and stand on the lot ; may 
 read the deeds, which give it to the socii, and then 
 find a reason, if he can, to account for its being in 
 the tutors' hands. Of this argument you take no 
 notice. Is it really so contemptible, that it deserves 
 none ? — I think not. 
 
 I have now gone through the four arguments, by 
 which the Memorial supported its first position ; of 
 two of which you have in the body of your pam- 
 phlet taken no notice, and to three of which you 
 have made no reply, — except to say, in terms which 
 I regret, that "the whole argument of the Memo- 
 rialists is founded on supposed analogies and gra- 
 tuitous conjectures, as to what the legislature might 
 have meant." The category of " supposed analo- 
 gies" evidently refers to the argument drawn from 
 the analogy of the English universities. So that 
 you must have intended to give the epithet of "gra- 
 tuitous conjectures" to the solemn law of admitting 
 Fellows, to authorities like those of Dr Eliot and 
 Dr Holmes, and to the actual transmission, in the 
 hands of the tutors, of real estate bequeathed to the 
 Fellows. This is a mode of discussion which does 
 not meet my views of the laws of controversy. 
 
 But I will endeavor, as proposed in the next place, 
 to arrange and answer, as far as I can, your coun- 
 ter statements, wherever they touch the question, 
 which, however, very few of them do at all. As 
 your suggestions are thrown together rather in a 
 loose way, without preserving a regular thread of 
 argument, I may make some unintentional error in 
 performing this part of my task. 
 
 The question then, I am constrained to repeat, 
 is, what did the charter intend by the five Fellows, 
 
7 
 
 $ 
 
 27 
 
 who were to be five out of the seven jpcmms, of 
 whom the corporation consisted ? The Memorial 
 answers, it intended persons residing at college and 
 employed in its instruction or government. This 
 you deny ; 
 
 1. Because " no such thing appears in the tenure 
 of the office, which is, not so long as they should 
 continue to be resident at Cambridge and to in- 
 struct students," but for life or " quamdiu se bene 
 gesserint." Did they forfeit their offices by leaving 
 the town of Cambridge ? If such had been the in- 
 tention, instead of the words " so oft and from time 
 to time, as any of the said persons shall die or be 
 removed" would not the accurate writer of that 
 charter have said, " so oft as any of the said persons 
 shall cease to be instructers in the said College f " 
 To this I may reply that, in my judgment, the ac- 
 curate writer of the charter would have said no 
 such thing, or if he had he would have been a very 
 inexact writer. — There is no dispute, that the ten- 
 ure of the office of Fellow was for life or " quamdiu 
 sese bene gesserint." The Memorialists will go 
 all lengths with you in asserting this. The ques- 
 tion is. w T hat is included in quamdiu se bene ges- 
 serint ; what is implied in conducting themselves 
 well ? The Memorialists say that it was redeem- 
 ing their solemn promise to reside, instruct, &c. 
 You reply that if this had been designed it would 
 have been expressed. But why ? Was it not 
 enough to provide the mode for filling vacancies or 
 removals, and leave those competent to it, to de- 
 cree removals ? Was it ever heard of, that every 
 sort of malpractice or nonpractice, by which a trust 
 could be forfeited, should be enumerated in a char- 
 ter ? You intimate yourself that " residence in the 
 Bay ,? is required of the Fellows ; and yet there is 
 
23 
 
 nothing said of a new election, whenever any Fellow 
 shall cease to be an inhabitant of the Bay. Resig- 
 nation, of course, would create a vacancy, but on 
 your principle it could not be filled ; for the char- 
 ter only authorizes a new choice when a Fellow dies 
 or is removed, it says nothing of voluntary resigna- 
 tion. I suppose, considering the known character 
 and principles of our fathers, you would grant that 
 becoming a Roman Catholic would disqualify a 
 person from continuing to be a Fellow of a college, 
 consecrated by strenuous protestants to the support 
 of their own religious views. Yet it is nowhere 
 provided in the charter that the office shall be va- 
 cated by a conversion to the Roman Catholic faith. 
 The only instances, I believe, in the history of the 
 College of a new choice, made other than in cases 
 of death or resignation, are those of Mr Graves, for 
 becoming an Episcopalian, in the time of President 
 Hoar, and of Mr Prince for intemperance in 1742. 
 But there is nothing said of Episcopacy or of in- 
 temperance in the charter. Why then should you 
 single out the qualities of residence and instruction, 
 and maintain that if these had been required of 
 Fellows, it would have been so stated in the tenure 
 of office. Supposing them (as we maintain) to be 
 of the essentials of the office, why are they not suf- 
 ficiently provided for, under the heads of death or 
 removal ? Your argument therefore from the tenure 
 of the office proves nothing, or it proves a great 
 deal too much. 
 
 But you attempt to strengthen it by a fact : 
 viz. that Samuel Danforth, one of the Fellows 
 named in the charter, soon after removed to Rox- 
 bury, and was there settled as a parish clergyman, 
 and, " it is believed, that he continued to hold 
 his seat till his death, which happened many 
 years after. This is inferred from a minute of the 
 
VI 
 
 29 
 
 President in the College Records, in which he no- 
 tices the death of Mr Danforth, at the time, and 
 adds that he was the oldest member of the Corpo- 
 ration." 
 
 You also state in confirmation of this remark, " that 
 in the abortive charter of 1672, the same Mr Dan- 
 forth is inserted as one of the new Fellows of the 
 College, and is there described as being at that 
 time fellow of the said College, and he is the only 
 person so described." 
 
 In a note, you quote from the Roxbury Church 
 Records this minute, " May 12, 1650. Samuel 
 Danforth recommended and dismissed from Cam- 
 bridge Church and admitted here :" being nineteen 
 days before the date of the charter in which his 
 name is inserted as a Fellow. He was ordained 
 at Roxbury 24th Sept. 1650. 
 
 I have thus conscientiously given the whole of 
 the facts, which you state to prove that Samuel 
 Danforth continued to be a Fellow twenty four 
 years after his leaving Cambridge, and from which 
 you argue that residence was not required by the 
 charter. The tone of triumph, with which you 
 repeat them, and the singular avowal you make in 
 conclusion, that " you never doubted the Memorial- 
 ists were mistaken in some of their most essential 
 facts," requires a deliberate examination of this 
 case : — the result may lead you to an opinion some- 
 what different from that which you now express. 
 
 In the first place, then, it is to be observed, that 
 Mr Danforth was a residing and instructing Fellow, 
 before the charter of 1650, probably several years 
 before. I do not know that the date of his elec- 
 tion is on record, but as he was graduated in 1643, 
 as Mather relates that " his learning with his virtue 
 ere long brought him to the station of a Tutor, 
 
/8 
 
 so 
 
 being made the second Fellow of Harvard College, 
 that appears in the catalogue of our graduates," it 
 may reasonably be inferred that, when the charter 
 of 1650 was granted, Danforth had been for a con- 
 siderable time a resident instructer at Cambridge. 
 This is all, on that point, which it behoves the 
 Memorialists to prove. If you maintain that Mr 
 Danforth continued to be one of the five Fellows 
 of the college, after his removal to Roxbury, the 
 burden of proof rests with you. Whether the two 
 circumstances you adduce as such proof, can be 
 fairly so considered, I much doubt. The first is 
 an entry, which you say, you have understood to 
 exist in the college records, made at the time of 
 the death of Mr Danforth, in which he is mention- 
 ed as the oldest member of the Corporation. Now 
 Mr Danforth died in 1674. The new charter was 
 granted in 1672, two years before ; and in that 
 charter, which, though not finally established, was 
 in some respects adopted, Mr Danforth was the 
 senior Fellow. The circumstance therefore that 
 at his death, in 1674, he was called senior Fellow^ 
 proves nothing, as to his character and connexion 
 with the college between his removal to Roxbury 
 and the date of the Charter of 1672. 
 
 The other circumstance which you adduce is, that 
 in this charter of 1672 he " is described as being at 
 that time Fellow of the said college." This is not 
 strictly accurate. The important words " being at 
 that time," you supply yourself. But he is named as 
 " Samuel Danforth, Fellow of the said college," from 
 which you infer it as certain that he was and had 
 been, during the twenty two years of his residence 
 at Roxbury one of the five Fellows. Were there 
 no reasons for doubting, I should be disposed 
 to allow this to furnish a strong presumption. But 
 
79 
 
 31 
 
 as a sole and unsupported argument, against the 
 whole current of proof to the contrary, I cannot 
 consider it sufficient. The circumstances that he 
 had loner been a resident Fellow and that his name 
 is in the first charter, and had stood on the college 
 catalogue with the title of Socius, or Fellow an- 
 nexed, will probably furnish the true account of his 
 being styled Felloic, in the charter of 1672. Had 
 he been called Felloic, because he actually filled 
 that office at the time of giving the charter of 1672, 
 there is no reason why the same title should not 
 have been given to Messrs Brown and Richardson 
 who were both Fellows and Tutors at the time the 
 new charter was conferred : — but being young men 
 might not have been entered as yet in the printed 
 college catalogue as Socii. You say yourself " he 
 is the only person described as a Feljow," which 
 is unaccountable, if you suppose it thereby proved 
 that he was actually a Fellow previous to and at 
 the time of the charter of 1672. Had Mr Danforth, 
 during the long space of twenty four years' residence 
 at Roxbury? remained a Fellow of the college, it is 
 highly probable that some trace of it would be 
 found on the records of his church, which I pre- 
 sume not to be the case ; since, as they have ap- 
 parently been searched for you, you would have 
 stated it. A biography of him is contained in the 
 Magnolia. The intimate acquaintance of Cotton 
 Mather with our early college history and the par- 
 ticular design of the fourth book, (in which the life 
 of Danforth is contained,) viz. the history of the 
 college, would lead us to expect an intimation of 
 the fact, if it were one ; but no such intimation oc- 
 curs in his account of Danforth. In the year 1668, 
 Mr Danforth, with five others, v was appointed to 
 manage the public dispute with the Anabaptists. 
 
SO 
 
 52 
 
 None of the historians, who relate this fact, men- 
 tion him as a Fellow of Harvard College, which, 
 was. at that time, certainly, if he were non-resident, 
 an honor, which he shared with no one else. In 
 the Dorchester church records, the death of Mr 
 Danforth is mentioned without any notice of his 
 being a Fellow. These circumstances may cer- 
 tainly awaken a doubt, whether so extraordinary a 
 fact is to be admitted, simply in virtue of the title 
 Fellow, which follows Mr Danforth's name in the 
 charter of 1672. From this fact alone, you would 
 prove that he had actually been a Fellow during the 
 twenty two years of his nonresidence ; whereas, it 
 is quite possible that the title was given him, be- 
 cause he had been a Fellow, and as such was nam- 
 ed in the first charter. It is plain that the question 
 must be settled by some proof of his acting as Fel- 
 low in the interval. Is there any such proof ? I 
 know of none ; none is alleged. 
 
 A very recent example will show how unsafe it 
 is, to draw inferences of this kind from the use of 
 official titles. In our late editions of the college 
 catalogue, it is stated that Christopher Gore, Isaac 
 Rand, William Phillips, and a number of other 
 gentlemen, were appointed members of the Over- 
 seers in 1810 ; that Mr Gore, Dr Rand, and sever- 
 al others ceased to be Overseers in 1815 ; that 
 William Phillips and several others still continue 
 to be Overseers. Now here is a much stronger 
 case, than that of Danforth. Here is the college 
 catalogue, published by authority, purporting to 
 give, in one column, the time when the gentlemen 
 were chosen and in another the year when they 
 retired from office. How cogently might it be 
 argued one hundred and fifty years hence, should 
 our contemporary accounts and traditions be 
 
81 
 
 33 
 
 lost, that the gentlemen in question continued 
 to be Overseers from 1810 to 1815, or to the 
 present time. Far otherwise the fact. All the 
 gentlemen named as having become Overseers by 
 the act of March 16, 1810, ceased to be so by an 
 act of February 29, 1812. It is true, they were 
 again restored, two years after, by an act of Febru- 
 ary 28, 1814 ; but during two years they were 
 wholly disconnected with the college, notwith- 
 standing the almost irresistible presumption to their 
 continuance uninterrupted till 1815 or longer, which 
 arises from the silence of the catalogue. 
 
 It is by this time, I presume, apparent that there 
 is little reason to think, that Mr Danforth continu- 
 ed one of the five Fellows, during his residence of 
 twenty four years at Roxbury ; and notwithstanding 
 the paucity of documents in this early period of our 
 history, I shall adduce two authorities which, taken 
 with what has already been said, go very near in 
 my mind to a final decision of the question. 
 
 The first is that of Dr Hoar, afterwards Presi- 
 dent, in a letter written to his nephew, while a stu- 
 dent at Cambridge. Dr Hoar took his first degree 
 in 1650, the year of Mr Danforth's removal to Rox- 
 bury. In this letter he thus speaks. 
 
 " Mr Alexander Richardson's tables would be an Ariad- 
 ne's thread to you, in this labyrinth, which, with other of his 
 manuscripts in logic, physic, and theology, by transcribing, 
 have been continued in your college, ever since the founda- 
 tion thereof, among most that were reckoned students indeed. 
 And if you have now lost them, I know no way to recover 
 them but of some, that were of that society in former times. 
 I suppose Mr Danforth, Mr Mitchell and others have them."* 
 
 Here Dr Hoar mentions those, who were Fel- 
 lows and tutors while he was a. student, and who 
 
 * Histor. Col. vi. 103. 
 
 5 
 
8-2 
 
 34 
 
 probably had instructed him, from the manuals to 
 which he refers ; and he mentions them as those, 
 who were of that society informer times. 
 
 The other authority is still more direct. One of 
 the most authentic and valuable works on the early 
 history of our country is Johnson's wonder-working 
 Providence. That Johnson was much versed in 
 the affairs of college, may be inferred, as well from 
 his book, as from his being placed, three years af- 
 ter the time of Mr Danforth's removal to Roxbury, 
 on a most important committee, upon college af- 
 fairs, as will be seen below. — Of his work one en- 
 tire chapter, the nineteenth, is devoted to the his- 
 tory of the college, and contains some information, 
 which I do not meet in any other place. In this 
 chapter, I find the following notice of our MrDan- 
 forth, which will probably lead you to reverse your 
 opinion with respect to him. 
 
 " Also the godly Mr Samuel Danforth, who hath not on- 
 ly studied divinity, but also astronomy. He put forth many 
 almanacs, and is now called to the office of a teaching elder 
 in the church of Christ at Roxbury, who was one of the 
 Fellows of this college."* 
 
 This, as appears from the next line, was written 
 in 1651, the first year after the charter was granted, 
 and the first after Mr Danforth's removal to Rox- 
 bury. — Till some further proof can be brought, on 
 the other side, this settles the question, that Mr 
 Danforth ceased to be a Fellow on his leaving 
 Cambridge. 
 
 Your next argument, and the only other one di- 
 rectly to the point in hand, is, that the charter con- 
 tains no limitation as to persons eligible. It does 
 not provide that the Fellows should be chosen out 
 of the instructers. This I freely grant ; nor was it 
 
 * Historical Collections. New Series, vii. 29. 
 
8§ 
 
 35 
 
 the object of the Memorial, in any degree, to touch 
 that point. It went indeed on the assumption, that, 
 if the charter required Fellows to be resident in- 
 structors, whenever a vacancy occurred some one 
 of the latter would, almost as a matter of course, be 
 chosen ; because, whoever was chosen must come 
 and reside at Cambridge. That, however, the 
 charter prescribed that some one already resident 
 should be chosen, it is not the drift of the Memo- 
 rial to prove. 
 
 These are all the arguments, which I can find 
 stated by you in form, to prove that Fellow in the 
 intendment of the charter, was not a person resid- 
 ing at the college. 
 
 I now proceed to the third part of my attempts, 
 which is to state some additional arguments in sup- 
 port of the Memorial, in doing which I shall have 
 an opportunity of noticing every other suggestion 
 and counter statement in your pamphlet, which re- 
 quires a reply. — I shall also be obliged to repeat a 
 part of what has been stated in the Memorial, with 
 a view to clearness and order. 
 
 The question is still then, what was the quality 
 of the five Fellows in the intendment of the char- 
 ter. And here I must make a reluctant observa- 
 tion, viz. that you appear to me to sneer at the ef- 
 forts of the memorialists to ascertain the meaning 
 of the charter in this respect. You contrast (page 
 12,) " the words of the charter," which " are not 
 doubtful," with the argument of the memorialists, as 
 " to what the legislature might have meant" This 
 looks like a resolution to stand upon the letter, in 
 contempt of the spirit. But I apprehend that when 
 you speak of the " words being not doubtful," you 
 also must intend the meaning of the words ; and 
 that if it can be made out, to the satisfaction of the 
 
QA 
 
 36 
 
 impartial, that the legislature, in incorporating Fel- 
 lows, meant resident persons, no one will risk the 
 attempt to set up another sort of Fellows, which the 
 charter did not mean. I now proceed to the ar- 
 gument. 
 
 It is alleged in the memorial, that Fellows were 
 known in the college before the charter. This the 
 preamble to the charter states. It declares that 
 legacies had been left, among other objects, " for 
 the maintenance of the Fellows," and it is expressly 
 avowed not in the preamble, but in the body, nay 
 in the enacting clause of the charter, that it is given 
 " for the furthering of so good a work, and for the 
 purposes aforesaid" You have labored, and as I 
 think I shall show with great want of success, to 
 prove that these Fellows were, I know not what, 
 titular, academic Fellows, and that there was no 
 authority before the charter of 1650 to create Fel- 
 lows: — you even say that till the charter of 1650, 
 the college was not properly founded and charter- 
 ed, — and that there was nobody existing authorized 
 to create Fellows. I believe I shall show that this 
 part of your remarks is wholly erroneous. 
 
 In the first place, the college was properly found- 
 ed. Foundation, in law, I understand to be of two 
 kinds, fundatw incipiens and fundatio perjiciens. 
 The fundatio incipiens is the act of incorporation 
 by the government. The fundatio perfciens is the 
 dotation or endowment ; in which the first donor is 
 esteemed the founder. Now, sir, in each sense, and 
 in all respects, the college had been founded long 
 before 1650. 
 
 In 1636, September 8, fourteen years before the 
 charter, the general court bestowed four hundred 
 pounds for a college, and in reference to this, it is 
 slated in the appendix to the document published 
 
S£> 
 
 37 
 
 by the Corporation in 1812, (and which I understand 
 you to ascribe to the late chief justice Parsons, then 
 the leading member of the corporation,) that " the 
 foundation of Harvard College was laid by the 
 general court of the colony of Massachusetts Bay, 
 in September 1636." Moreover, as this legal act was 
 an appropriation of money, it would seem to com- 
 bine the qualities of incipient and perficient founda- 
 tion. It may here also be observed, that the go- 
 vernment, being the founder of the college is the 
 visiter of it, unless it has deputed the visitatorial 
 power to some other body ; an important enquiry, 
 to which I shall have occasion to revert. 
 
 After the foundation of the college and its dota- 
 tion by the colonial government, it was still farther 
 endowed by individuals among whom Harvard is 
 the most conspicuous. 
 
 In 1642 the college was incorporated, by a char 
 ter still in force, and which remained in unaltered 
 integrity, till the year 1810; the act, I mean, by 
 which the board of overseers was created. In the 
 preamble to this act, the foundation and endow- 
 ment of the college are expressly asserted in the 
 following terms : — " Whereas, through the good 
 hand of God upon us, there is a college founded 
 in Cambridge, in the county of Middlesex, called 
 Harvard College, for the encouragement of which 
 this court has given the sum of four hundred pounds, 
 and also the revenue of the ferry betwixt Charles- 
 town and Boston, &c." The overseers, who were 
 created by this act, were not created merely as 
 such, but as feoffees (to use the term in the margin 
 of the manuscript colony records, of Governor 
 Winthrop's journal, and of the ancient printed edi- 
 tion of the laws) " to dispose, order, and manage 
 to the use and behoof of the college and the mem- 
 
8^ 
 
 38 
 
 bers thereof ail gifts, legacies, bequeaths, revenues, 
 lands and donations.'' As these feoffees were a self- 
 perpetuated body, viz. the magistrates and minis- 
 ters of the six neighboring towns, this act was 
 complete in all the essentials of a charter. 
 
 Here then we have the college complete in its 
 foundation and incorporation. The board created 
 by this charter had "full power and authority to 
 make and establish all such orders, statutes, and 
 constitutions, as they shall see necessary for the 
 instituting, guiding and furthering the said college," 
 &c. It is true no power is expressly given the 
 overseers to sue or be sued, or have a common seal, 
 but these, it is well known, " are incidents, which 
 are tacitly annexed of course, as soon as a corpo- 
 ration is duly erected."* 
 
 Now under this charter, and previous to the char- 
 ter of 1650, there were Fellows at the college, who, 
 with the President, were maintained from its funds. 
 This, in the first place, is asserted in the charter of 
 1650, for notwithstanding your disparaging remarks 
 on the value of preambles, which I shall presently 
 consider, it is not to be supposed that the preamble 
 to the charter of 1650 asserts a falsehood. Now 
 that preamble says, that " many well disposed per- 
 sons have been and daily are moved and stirred up 
 to give and bestow sundry gifts, legacies, lands, 
 and revenues for the advancement of all good liter- 
 ature, arts and sciences, in Harvard college in 
 Cambridge in the county of Middlesex and to the 
 maintenance of the President and Fellows, &c." 
 
 You say, in the face of this, that there were no 
 Fellows before 1650, because the college was then 
 first incorporated. I maintain that it was incorpo- 
 rated in 1642; and the charter of 1650 says that 
 
 * Blackstone, J. 475. 
 
°7 
 
 39 
 
 foundations had been made for the maintenance 
 of Felloics, and that the new act is passed to further 
 that, among other purposes. 
 
 To put this matter in a little stronger light, I will 
 here state that the famous " Tutor's lot," or " Fel- 
 lows' orchard" as it was earlier called, was one of 
 these very foundations. It was given to the Fel- 
 lows in 1645, five years before the charter of 1650; 
 and though the corporation, some twenty five years 
 ago, refused to let the tutors sell it, the tutors con- 
 tinued to let it on their own account, till a year or 
 two since. 
 
 But what concludes this point, and that, as would 
 seem, by your admission is, that it is from this pe- 
 riod, anterior to the charter of 1650, that the "form 
 required by laic of admission as Felloic" (I use 
 your own words) takes its date ; that law which, 
 as I understand you also to say, has never been 
 repealed. It was not only enacted by the over- 
 seers, but in every instance of its application, must 
 have been administered by them, for the last sen- 
 tence begins, " We, then, the overseers of the col- 
 lege, &c." 
 
 I consider it then as incontestibly proved that, be- 
 fore the charter of 1650, the college was founded, 
 endowed, and administered by a President and 
 Fellows, maintained by legacies and bequests for 
 that purpose, and subject to the revision of the over- 
 seers. To further these purposes (for so the instru- 
 ment in the body of it says) a new charter was 
 granted, fixing the number of Fellows to five, and 
 providing for their succession, by election in their 
 own body, and this, with the enumeration of certain 
 powers which are, without specification, incident to 
 corporations, is about all that the charter of 1650 
 contains. 
 
B6 
 
 I have already reviewed the arguments by which 
 it is attempted to be shown, in the Memorial, that 
 the term Fellow, in the charter, imported persons 
 maintained at the college. With as little repetition 
 as possible of these, I will pursue the argument. 
 And, first I must insist on the significance of the 
 preamble. You make a remark very familiar, but 
 as I conceive, of little pertinency, that it is a dan- 
 gerous practice to recur to preambles, to explain 
 the meaning of law-makers, 
 
 « Because the preamble was written with less care, and 
 often did not set forth all the reasons, which induced the leg.s- 
 lature to make the law, or set them forth imperfectly. Hence 
 the legislators of the United States have gradually abandoned 
 the usage of setting forth, in a preamble, the reasons of their 
 acts, leaving to the courts of law to infer the intent from the 
 enactments and provisions" 
 
 I cannot but enter a protest against this kind of 
 argument, which is altogether ad ignorantiam, and 
 wears the appearance of being designed to make 
 the memorialists think, that no argument can be 
 drawn from this preamble, because preambles have 
 been drawn with less care than the acts they intro- 
 duce and are now disused. The only argument 
 of this kind of any weight, would be one deduced 
 from the looseness, imperfection, or inacuracy of tins 
 particular preamble. Is any such defect shown r 
 Is it pretended ? You call the charter itselt lull, 
 clear, definite ; you say its framers were not illiter- 
 ate men, that they comprehended the law of corpo- 
 rations, that they did not use language at random; 
 (p 19) and you again repeat that the charter must 
 have been drawn by an accurate writer.— Where 
 then is the reasonableness of intimating, that a 
 preamble of eight lines, drawn by these learned, 
 precise, and accurate persons is an unsafe ground 
 
*9 
 
 41 
 
 of argument as to the intent of the charter ? Take 
 away this preamble, and there are but two lines 
 left in the whole instrument, which ascertain the 
 nature of the establishment to be literary. With 
 the exception of two lines in the last paragraph, 
 and those by no means so distinct as the preamble, 
 there is nothing but this preamble, with which you 
 are so unceremonious, to keep the college from 
 being a riding school, a bank, or a woolen factory. 
 
 But the argument does not rest on the preamble, 
 which, however, you acknowledge to be " a recital 
 of well known facts." — In the body and enacting 
 clause of this instrument, drawn by an accurate 
 writer, versed in the law of corporations, and not 
 using language at random, we read, " It is therefore 
 ordered and enacted by this Court and the authori- 
 ty thereof, that for the furthering of so good a work 
 and for the purposes aforesaid," &c. Now what 
 are the purposes aforesaid? They are " the ad- 
 vancement of all good literature, arts, and sciences 
 in Harvard College, and to the maintenance of the 
 President and Fellows, and for all accommodations 
 of buildings and all other necessary provisions, that 
 may conduce to the education of the English and 
 Indian youth of this country in knowledge and god- 
 liness." I wish to know whether any thing can by 
 words be made plainer than that the " maintenance 
 of the Fellows" is one of the objects of the charter ? 
 
 But an argument of still greater weight may be 
 drawn from the phraseology of the charter. In this 
 instrument it is ordered and enacted, by the Court 
 — " that the said college in Cambridge, in Middle- 
 sex, in New England, shall be a corporation." 
 Here there is a peculiarity, as it appears to me, in 
 the choice of the language. The college is order- 
 ed not to have or to be governed by a corporation, 
 6 
 
5 
 
 0* 
 
 42 
 
 but to be a corporation. This form of words is not 
 preserved in the charter of 1672 ; but the clause 
 " that the college shall be a corporation " is wholly 
 omitted. Now this use of college is worthy of note. 
 We generally understand by college either the build- 
 ings or the whole aggregate of the institution, as a 
 system. Here, however, the word is used in a still 
 different, and exceedingly narrow sense, to signify 
 the members of the corporation : — " the said college 
 shall be a corporation consisting of seven persons." 
 Now as the college is expressly defined and fixed 
 to be at Cambridge, the corporation must be there. 
 If the corporation are in Boston and Roxbury, as 
 at present, they cannot be the college in Cam- 
 bridge. If, as the charter says, the corporation are 
 the college ; wheresoever the corporation is, there 
 the college is ; and if the corporation is not at 
 Cambridge, the college is not at Cambridge ; and 
 if the college is not at Cambridge, the charter is 
 violated. 
 
 If the thing be diligently weighed, I am per- 
 suaded it will appear that the residence of the cor- 
 poration is not only the true intendment of the 
 charter, but is the essence and fundamental provi- 
 sion of it. No one will deny that the college must 
 be at. Cambridge. To remove it, would be, ipso 
 facto, to break the charter. It may well be a 
 question, whether the temporary removal to Con- 
 cord, in the time of the war, can be justified on any 
 other ground, than that of necessity superseding 
 law ; certainly it is only as a temporary removal, 
 that it could be justified at all. A permanent re- 
 moval to any place would be the directest contra- 
 vention of the charter of " Harvard College at 
 Cambridge, in Middlesex County, in New Eng- 
 land," as it is twice called in the instrument itself, 
 
91 
 
 43 
 
 with great particularity of location. It being obvi- 
 ous then that the college must be and abide at 
 Cambridge, the question is all important, what the 
 college is defined to be in the charter ; to which of 
 the abstract ideas, attached by popular use to the 
 word college, does the charter technically give that 
 name ? Is it the college buildings ? No ; and if 
 it were, the charter has lately been violated in 
 erecting a new building and establishing one whole 
 department in Boston. Is it the body of instruct- 
 ers, who are defined to be the college in Cambridge, 
 in Middlesex ? No ; and if it were, the charter 
 would be again violated, since more than a third of 
 the instructers live in Boston. What then is de- 
 fined to be the college in Cambridge ? precisely the 
 corporation, " The said college in Cambridge, in 
 Middlesex, in New England, shall be a corpora- 
 tion, consisting of seven persons, to wit," &c. The 
 English language does not possess terms, by which 
 two ideas can be more effectually predicated of 
 each other, than those, by which the " college in 
 Cambridge" is here predicated of " corporation" 
 and the " corporation" of the "college in Cam- 
 bridge" It is not merely said, as in the charter of 
 1672, that certain persons shall be the corporation. 
 It is not said, the college shall be governed and 
 administered by a corporation. It is said, in the 
 shortest and the plainest terms the language ad- 
 mits, that " the college in Cambridge shall be a 
 corporation." Since then the corporation are the 
 college ; they must reside at Cambridge, or they 
 cannot be the college at Cambridge. Whitherso- 
 ever the corporation travels, the college travels with 
 them ; because, says the charter, the college is the 
 corporation. If the corporation, as at present, be 
 in Boston and Roxbury, the college in Cambridge 
 
gk 
 
 44 
 
 has ceased to exist, unless indeed it can be in two 
 places at once. 
 
 It will not probably be denied, that if the word 
 residing had been used in the charter, residence 
 would have been a necessary qualification of Fal- 
 low. And yet this word residing must be supplied 
 by irresistible inference. The college is specified 
 to be the college at Cambridge. If by college 
 were understood the college buildings, the word to 
 be supplied would be erected or standing at Cam- 
 bridge. If the college be considered as a person, 
 a corporate body, then the word to be supplied is 
 residing at Cambridge. The only way in which a 
 corporation of men can be said to be at & place, is 
 by usually residing at it. 
 
 I can foresee how this argument will probably 
 be met ; — by an attempt to avoid the direct terms 
 of the charter, and substitute something in their 
 place. It will be said, that the charter did but in- 
 corporate the governors of a college ; which college 
 was at Cambridge. This, however, is in direct 
 contradiction of the words of the charter, which 
 says nothing of governors, directors, or trustees, 
 but beginning with " the college at Cambridge," 
 orders and enacts that said college at Cambridge 
 shall be a corporation consisting of seven persons. 
 It would be a waste of time to insist further on 
 the force of such a language ; or to attempt to 
 prove, that where a college is made to be a corpo- 
 ration, that college cannot be in Cambridge, unless 
 the corporation is in Cambridge. The simple 
 rules of grammatical interpretation require this ; 
 but when we add that we have to do with a legal 
 instrument, drawn by a learned and accurate writer, 
 versed in the law of corporations, the inference is, 
 of course, irresistible. 
 
93 
 
 45 
 
 It is another very strong consideration in favor 
 of the doctrine of the Memorialists, that on that 
 doctrine alone rests the subjection of the corpora- 
 tion to a visitatorial power without itself. As the 
 existence of that power is unquestioned, the only 
 interpretation of the charter on which it can rest, 
 viz. that of the Memorialists* should be equally 
 unquestioned. By the charter, as understood by 
 the Memorialists, one of the declared objects of 
 the incorporation is the maintenance of the Presi- 
 dent and Fellows ; and they are empowered to 
 take and hold for their own use and behoof in the 
 service of the college. By the law of eleemosynary 
 corporations, therefore, some person or body, with- 
 out this corporation, is entrusted with the visitato- 
 rial power. But if the trustees do not take and 
 hold for their own use, behoof, and maintenance, 
 but in trust for others, then the trustees are visi- 
 ters. If the Fellows of the corporation hold the 
 college stock not for their own maintenance in the 
 service of college, but that of others, call them what 
 you will, then the Fellows themselves are visiters. 
 No point of law is better established than this, from 
 Lord Coke's time to the modern decisions.* In 
 Mr Webster's speech on the Dartmouth College 
 question, the array of authorities is produced, and 
 the principle is declared in his opinion to " be set- 
 tled and undoubted law."t The same opinion 
 from the same high source is expressed in the de- 
 bates in the Massachusetts Convention. By this 
 principle the corporation, as now constituted, would 
 be the visiters of the college : and so clear was the 
 distinguished jurist, whom I have just quoted, of 
 the principle in question, that (taking the now pop- 
 
 * 10 Coke's Reports, p. 31. 
 
 t Dartmouth College Case. p. 253. 
 
fA 
 
 46 
 
 ular construction of the charter as the true one) he 
 does not hesitate, both in his speech on the Dart- 
 mouth College case and in the Convention, to ex- 
 press the opinion that the corporation are the visi- 
 ters of college. This however, sir, is not your 
 opinion, you expressly call the overseers the visi- 
 ters ; and others of equally high authority conceive 
 the visitatorial power to be reserved to the founder, 
 viz. the State. And yet the authorities cited by 
 Mr Webster, not less than his own, prove that if 
 the corporation are merely non-resident trustees 
 they are visiters ; if they reside and are supported 
 by the college funds they are not visiters. These 
 principles, as they are undoubted law, as they were 
 solemnly so decided in the case of Sutton hospital 
 in 1613, and as they were emphatically reported by 
 Lord Coke the following year, in the tenth book of 
 his reports, must have been fully known to the 
 accurate writer, well acquainted with the law of 
 corporations, by whom the college charter was 
 drafted. And now I follow you in appealing to gen- 
 tlemen conversant with judicial enquiries, whether 
 it is not a most extravagant pretension that a cor- 
 poration shall have a right, by a mere bye-law, to 
 change their constitution in the fundamental point 
 of the visitatorial power ; to make themselves visi- 
 ters instead of objects of a charitable foundation ; 
 to apply funds, which the Fellows were incorpora- 
 ted to employ, among other things, in their own 
 maintenance in the service of college, to the main- 
 tenance of another order of men. For this is the ten- 
 ure on which all the general funds of college are be- 
 stowed, as much the latest as the earliest donations, 
 it being an equally established principle, that " a 
 subsequent donation, or engrafted fellowship falls 
 under the same general visitatorial power, unless 
 
p- 
 
 47 
 
 otherwise specially provided. M It is one of the 
 most obvious principles of the law of corporations, 
 " that a bye-law may regulate, or modify the. con- 
 stitution of a corporation, but cannot change it."* 
 But surely no one will deny that to change the 
 Fellows, from a body of persons incorporated to be 
 maintained in the service of the college, to a body 
 of Trustees ; to take the visitatorial power out of 
 the hands, where it would otherwise rest, into their 
 own, is to alter the constitution of a corporation. 
 It is to alter it in a most essential feature. 
 
 But this is not the only essential alteration in the 
 constitution of the college, which results from the 
 choice of non-resident fellows. While the corpo- 
 ration was composed of resident Fellows, main- 
 tained in the service of the college ; instruction, go- 
 vernment, and administration were in the same 
 hands. I speak not now of the expediency of such 
 an arrangement, but of the fact. From this ar- 
 rangement would result several very important fran- 
 chises. The Fellows, being instructers, might re- 
 quire the assistance of certain books, in their courses 
 of instruction. They would be able to purchase 
 them for the college library, out of the college 
 funds, subject to the approval of the overseers. 
 Their experience as governors of the college might 
 show them the necessity of some new law. They 
 would have power to pass it, subject to the revision 
 of the overseers. The harmony and success of 
 their service of the college might depend on their 
 being associated with colleagues of their own pre- 
 ference. They would have power to choose such, 
 subject of course to the revision of the overseers. 
 Nay more, appointments of responsibility, honor, 
 and profit are within the gift of the fellows ; the 
 
 * Kyd on Corporations, ii. 113. 
 
c )6 
 
 48 
 
 election of the president is within their control ; 
 they may choose one of their own number, and the 
 non-resident fellows in the last century actually 
 formed the habit of doing it. Chief Justice Mar- 
 shall, in his opinion on the Dartmouth College 
 question, says, " according to the tenor of the char- 
 ter [of Dartmouth College] the trustees might, 
 without impropriety, appoint a president and other 
 professors from their own body. This is a power, 
 not entirely unconnected with an interest." By the 
 charter of Harvard College, the Fellows have the 
 same beneficial interest, the same vested right. If 
 the Fellows reside and instruct, then those, by 
 whom instruction is given, possess all that advan- 
 tage, respe lability, weight, and influence, which 
 resides in this beneficial interest ; — in the power 
 of choosing without impropriety, themselves or oth- 
 ers to confidential and important trusts. No cor- 
 poration in the State, at this moment, possesses so 
 valuable a patronage as the corporation of Harvard 
 College. To place that patronage within the col- 
 lege walls, giving dignity and character to its ad- 
 ministration ; and to carry it away from the college 
 walls, to take it out of the hands of those, on whose 
 respectability and efficiency the whole effect of the 
 system as a place of education must rest, are surely 
 very different things. To change from one to the 
 other is surely a fundamental change in the con- 
 stitution of the college. It is to take from the resi- 
 dents a very valuable property, a very important 
 vested right. And I do apprehend that merely on 
 loose notions of expediency, addressed in popular 
 appeals to the community, the very importance and 
 value of a right will not be made the ground of 
 taking it away. It may be thought dangerous to 
 the college welfare, that men like Dr Ware, Dr 
 
9J 
 
 49 
 
 Hedge, Dr Popkin, Mr Willard, and Mr Farrar, 
 should be trusted with the selection of a person to 
 fill the vacant chair of moral philosophy or the Latin 
 tutorship ; and it maybe thought safer that this should 
 be done by Mr Otis, Mr Prescott, Dr Porter, and 
 Dr Channing. But still, if the charter intended to 
 unite the honorable labor of instruction with the 
 honorable trust of electing to offices in the col- 
 lege, then I apprehend that, in a government of 
 laws, this important franchise cannot be taken 
 away, on grounds of expediency. — These rights 
 and franchises are the only privilege of what 
 the great man, from whom I am proud to quote the 
 sentiment, has called " a most deserving class of 
 men, those who have devoted their lives to the in- 
 struction of youth." You are pleased to speak of 
 their title, their rank, their honorable salaries, 
 and pleasant duties, as great things. What you 
 would intend by their title and rank I know *not. 
 Their salaries are less than those in the professions 
 considered on the same footing, and are now threat- 
 ened with a reduction, which will leave them bare- 
 ly adequate, with economy, to the support of a fam- 
 ily at Cambridge. As for the pleasant duties, 
 with which you taunt us ; if you will come here, 
 sir, in a time of a high combination ; if you will sit 
 with us eight, ten, twelve hours a day ; find your- 
 self constrained, as you think, in duty, to inflict the 
 severest censures on young men, many of whom 
 you respect and love ; obliged to meet the re- 
 monstrances of their parents and friends ; to pass 
 days, and weeks, in a state of the intensest anxiety, 
 and know that for it all, your reward is to be cer- 
 tain odium ; if you will do this you will perhaps 
 say less of our pleasant duties. A very considera- 
 ble part of the business here is far from pleasant, 
 7 
 
3-8. 
 
 50 
 
 And there is not a body of men, as I think, in the 
 world, to whom you ought more willingly to grant 
 every privilege, to which they are any way entitled. 
 So far from this, all the confidential and important 
 trusts connected by the charter with the office of 
 resident Fellows have been taken away. By slow 
 degrees, they have been deprived of one seat after 
 another in the corporation, till for the last eighteen 
 years, the entire control of the college has been 
 carried from its walls and monopolized by the lead- 
 ing gentlemen of Boston. Have they not enough 
 without this ? — Or if the gentlemen desire to have 
 a part in the administration of college, is it not 
 enough that every one of the Fellows of the Corpo- 
 ration is now actually a member of the board of 
 overseers, where they may approve, and have by 
 their casting votes in that board approved, their 
 own votes as members of the corporation ? And 
 will they, above all, contend that this change of the 
 constitution, this disruption of the duties and trusts 
 united in the character of resident Fellows, this 
 transportation of the corporation away from the 
 place where it was appointed to be, that all this is 
 no departure from the charter ; this it is only a little 
 affair of bye-laws which leaves the constitution of 
 college unaltered ? 
 
 At the risk of seeming to labor on a point proved, 
 I must ask permission to make an observation on 
 an argument adduced in the memorial, and contro- 
 verted by you : It is stated in the memorial, that 
 " the very order of the words, in the charter, op- 
 poses this singular interpretation of its provisions. 
 It does not say a president, a treasurer and five 
 other Fellows ; (or members ;) but it says a presi- 
 dent, five Fellows, and a bursar or treasurer. 
 Moreover, in thus making Fellow to signify no more 
 
59 
 
 51 
 
 than member, the corporation is made to consist of 
 seven Fellows, instead of five. The president, and 
 treasurer are, by the charter, members of the cor- 
 poration, and if Fellow imports only member, then 
 there are seven Fellows, contrary to the provision 
 of the charter, which limits the number to ftve. v 
 
 You first attempt to throw discredit on this rea- 
 soning, by speaking of it as " verbal niceties or sub- 
 tleties mingled with more sober argument," and as 
 a piece of " refined criticism." It is somewhat un- 
 expected to me, I confess, to hear that verbal sub- 
 tlety is opposed to sober argument, or that refined 
 criticism is out of place, in interpreting a legal 
 instrument drawn by an " accurate writer." If 
 there exist on earth any thing, which will bear re- 
 fined criticism, I should think it was such an in- 
 strument ; and I doubt whether " the intelligent 
 part of the public, especially those conversant with 
 legal inquiries," will bear you out, in your implied 
 preference of a loose over a subtle or refined inter- 
 pretation. 
 
 It is, however, a little curious that in quoting an 
 instance to show the fallacy of the latter part of the 
 argument of the memorial just cited, you have ad- 
 duced the amplest confirmation of the soundness 
 of the first. It is observed, in the memorial, that 
 " the very order of the words in the charter op- 
 poses this singular interpretation ; [that Fellow 
 meant only member.] It does not say a president, 
 a treasurer, and five other Fellows, (or members ;) 
 but it says " a president, five Fellows, and a bur- 
 sar or treasurer." To meet the other part of the 
 illustration in the memorial, you say " a religious 
 body is incorporated by the name of the rectors, 
 wardens, and vestry. — All these persons are equally 
 members of the corporation, but the vestry are not 
 
jOO 
 
 52 
 
 wardens, nor the wardens rectors, nor the rector 
 and wardens vestrymen." — Granted : and what do 
 we observe in the order of the words ? Do not those 
 members of the religious incorporation who, besides 
 being members, are something else, stand first 
 in the enumeration ? It is not rector, vestrymen and 
 wardens. Your case requires that the corporation of 
 the college should have been styled president, treas- 
 urer, and Fellows. That was the very argument 
 of the memorial, and to meet that argument, you 
 bring a case which confirms it in the amplest manner. 
 But I have further reason to thank you for that 
 case. Suppose that before any other church had ever 
 been incorporated or even established in America, a 
 charter were granted in 1650, by which it was or- 
 dered that Trinity Church in Boston should be a 
 corporation consisting of a rector, five vestrymen, 
 and wardens. Suppose that in the English church- 
 es, vestrymen were usually resident within the 
 cloisters of the church. Suppose farther that, pre- 
 vious to this charter, a body of Overseers appointed 
 by law had established certain vestrymen, to reside 
 within the cloisters of the same church and dis- 
 charge its functions, and that legacies had been be- 
 queathed to maintain such resident vestrymen. Sup- 
 pose the charter in its preamble to recite these 
 " well known facts," and to set forth that it is itself 
 granted for the furtherance of the same objects. Sup- 
 pose it accordingly enacted by the charter that said 
 church in Boston should be a corporation consisting 
 of a rector, five vestrymen and wardens. Suppose 
 that of the vestrymen named every one was at the 
 time resident within the cloisters ; and finally that 
 the general court, at a subsequent period, should ir- 
 regularly enact new charters, under the temporary 
 operation of which, the power should get into the 
 hands of non-residents, who to perpetuate it there, 
 
101 
 
 53 
 
 and yet seemingly to save the charter, should set 
 up a distinction of vestrymen of the church and 
 vestrymen of the corporation ; that these latter 
 should not reside even in the town of Boston, and 
 yet claim and exercise all the higher powers of the 
 body. I wish to know whether all this would not be 
 thought a gross departure from the constitution of 
 the church ; an introduction of a new body unknown 
 to the charter, a degradation of the real vestry- 
 men, a total change of the principle on which the 
 church was incorporated, which was that those who 
 did service in the cloisters should be made respect- 
 able, by being clothed with responsible powers. 
 Here is a parallel case, and to the judgment of 
 every fair man upon it, whether conversant with 
 legal enquiries or not, I am willing to leave the de- 
 termination of the whole matter. 
 
 I will here briefly notice some observations of 
 your's relative to an expression occurring incident- 
 ally in the Memorial, to which you have thought ne- 
 cessary to allude in two or three places. It was ar- 
 gued, at the close of the Memorial, that for the 
 vigorous execution of their duties, the immediate 
 government need to be clothed with greater re- 
 sponsibility than they can have, as mere " servants 
 of the corporation." — This phrase is not at all dwelt 
 on in the Memorial ; no use is made of it, except in 
 this one incidental allusion, and what I beg particu- 
 larly to have noticed, it was marked with inverted 
 commas, to intimate that it was a quotation. With- 
 out pretending to assert the fact, and very willing to 
 confess the error, if it be one, I am not the only one 
 of the signers of the Memorial, who understand it to 
 have been an usual thing for the immediate govern- 
 ment to be called the " servants of the corporation," 
 by the corporation themselves. This therefore is not 
 
10 
 
 54 
 
 a name, which the memorialists, as you intimate, for 
 invidious purposes, fix on themselves. Neither is it a 
 name of which they complained. The allusion was 
 slight, and intended to be good humored. You have 
 thought necessary to dwell upon it ; to bring it to view 
 at three different times ; and what I have a right to 
 call unjustifiable, to make it the ground of twice 
 calling in question the feelings of the memorialists. 
 You have said, " No, that expression was misplaced. 
 It was the proof of some feeling, that should have 
 been concealed." In reference to this, I would re- 
 mind you of the rule either of Dr Franklin's club 
 or that of the Spectator, that " no member should 
 call his brother member's motion strange or extra- 
 ordinary." By a still stronger delicacy, I think no 
 controvertist should say that his opponent has given 
 proof of feelings, which ought to be concealed. 
 The arguments of the memorialists are fair game ; 
 their feelings, as I conceive, like those of other men 
 are sacred, till they forfeit their character and 
 standing. Of my own, I will not presume to say 
 anything. But of the other subscribers to the Me- 
 morial, I must be permitted to say, that I am well per- 
 suaded their feelings, on every point touched in the 
 Memorial, were such as need no concealment. 
 Some of them are older than you or I, and their 
 feelings are entitled to all the tenderness due to 
 hairs which have grown grey in the service of the 
 communitv. 
 
 An argument was drawn in the Memorial from 
 the variations of the charter of 1672, from that of 
 1650. In this charter certain non-residents were 
 named as Fellows ; and it was intimated in the 
 Memorial that the new charter was procured to 
 give a legal sanction to their title. You observe of 
 this, that it "is matter of regret, that such an argu- 
 
jU 5 
 
 55 
 
 ment should have been used, and that suggestions 
 aflectin g character should not be hazarded without 
 the fullest proof." Neither should an opponent be 
 censured for the very thing we practice ourselves. 
 The college in 1672 and 1673 was very much re- 
 duced, and in the former year there was no class 
 graduated. You mention (p. 11.) the dwindling of 
 the college and the introduction of a majority of 
 non-residents into the new charter, as a proof that 
 the administration of the resident Fellows up to that 
 period was neither successful or popular. This is 
 a grave charge against the men, who in the infan- 
 cy of the institution discharged the laborious office 
 of instructing and governing it. It appears to me 
 one of those " suggestions affecting character, that 
 should not be hazarded without fullest proof." The 
 period of sixteen or seventeen years of President 
 Chauncey's administration, the period immediately 
 preceding the new charter, which was granted in the 
 year 1672, is one of uncommon respectability, as far 
 as the immediate instruction and government of the 
 college went. President Chauncey himself w T as one 
 of the most learned men of any age, and indefatiga- 
 ble in his office. Cotton Mather relates that 
 
 "After age had enfeebled him, the Yellows of the college 
 once leading this venerable old man to preach a sermon on a 
 winter day, they, out of affection unto him to discourage him 
 from so difficult an undertaking, told him, Sir, you will cer- 
 tainly die in the pulpit. But he, laying hold on what they 
 said, as if they had offered him the greatest encouragement in 
 the world, pressed the more vigorously through the snow drift, 
 and said, how glad should I he if what you say might prove 
 true. " 
 
 This is the head of that unsuccessful and uniwpu- 
 lar administration of college. The real causes, as 
 I understand, of the decline of the number of stu- 
 
/ 04 
 
 56 
 
 dents about this time were various. The old col- 
 lege was ruinous, and in this very year, 1672, was 
 pulled down and rebuilt. This may possibly be 
 the reason that there was no commencement this 
 year. President Chauncey's death may have con- 
 tributed to the same effect. Great agitations existed 
 in the churches, relative lo baptism and consociation. 
 In 1670, a violent controversy arose on account of 
 Mr Davenport's call to the first church in Boston, 
 which according to Hutchinson " produced two 
 parties, not in the churches only, but also in the 
 State ;" and was finally taken up by the general 
 court, whose committee on the subject denounce 
 the evils complained of as " leaven, the corrupting 
 gangrene, the infecting spreading plague, the pro- 
 voking image of jealousy set up before the Lord, 
 the accursed thing, which hath provoked divine 
 wrath, and doth further threaten destruction." Add 
 to this that the troubles with king Phillip began, at 
 this time, to threaten ; and I think you will have 
 causes enough for any apparent decline of the col- 
 lege previously to the election of Dr Hoar in 1672. 
 After that election, the following extract from Cot- 
 ton Mather will inform us, whether it was incompe- 
 tency on the part of the Fellows, or interference 
 from without, that affected the prosperity of the col- 
 lege. 
 
 " Were he considered either as a scholar, or as a christian, 
 he was truly a worthy man ; and he was generally reputed as 
 such, until happening, I can scarce tell how, to fall under the 
 displeasure of some that made a figure in the neighborhood, 
 the young men in the college took advantage therefrom to 
 ruin his reputation as far as they were able. — The young 
 plants turned cud weeds, and with great violations of the fifth 
 commandment, set themselves to travesty whatever he did and 
 said, and aggravate every thing in his behavior disagreeable to 
 them, with a design to make him odious ; and, in a day of 
 
laa 
 
 57 
 
 temptation, which was now upon them, several very good men 
 did unhappily countenance the ungoverned youths in their un- 
 governableness. Things were at length driven to such a pass, 
 that the students deserted the college, and the Doctor on 
 March 15, 1675, resigned his presidentship. 
 
 Thus much for the want of success and popularity 
 on the part of the resident Fellows. 
 
 You endeavor to convict the Memorialists of ab- 
 surdity in arguing, that the non-resident Fellows 
 procured the charter of 1672, to cover the defect of 
 their title, and after obtaining it did not accept it, 
 but declined acting under it. But the Memorial- 
 ists do not say, that the charter was never accepted. 
 They say " its history is obscure, that many of its 
 most important provisions appear never to have 
 gone into operation." But in order to preclude 
 any argument drawn from it by the corporation or 
 their champions, the Memorialists subjoin the re- 
 mark, that, " in the appendix to the collection of 
 documents published in 1812, it is observed, ' that 
 there is no evidence that the President and Fellows 
 ever accepted this charter or acted under it.'" — 
 These are the words of the document, which I un- 
 derstand you to ascribe to Chief Justice Parsons. 
 If this be the document, to which you refer, you 
 are not correct in your report of it. You say, " the 
 late Chief Justice Parsons, after full research into 
 the history of the college, asserts this to be the fact" 
 (that the charter was not accepted nor acted under). 
 But the Chief Justice is much more guarded in his 
 language. He makes no stronger assertion than 
 that, " there is no evidence that the President and 
 Fellows ever accepted this charter." This is true, 
 but there is no evidence that they rejected it. 
 There is no evidence on either side. In another 
 document in the same appendix, also probably 
 8 
 
10 6 
 
 58 
 
 written by the Chief Justice, it is said, that " the 
 new charter is not on the records either of the 
 overseers or corporation." This also I take to be 
 correct. But you make the chief justice say, (if it 
 is this passage you allude to, and you must ex- 
 cuse the error if I err, as you give no reference,) that 
 "the corporation never recorded the charter of 
 1672." This the chief justice does not say : and 
 if, as I believe, the records of the Corporation, at that 
 period, are not extant in the original, and only in 
 an imperfect copy, there is good reason to say that 
 it is not on the records ; but very little to say that 
 " they never recorded it."* Whether they did or 
 not, they preserved it, and it is now kept by the 
 president of the college, I believe, and in the same 
 place of deposit with the charter of 1650. 
 
 In confirmation of the interpretation given by the 
 memorialists to the charter of 1650, they urged that 
 the charter of 1672 differed from it in those parts, 
 by which the residence of the Fellows was enjoin- 
 ed. They observed that " the old charter ordered 
 that the corporation should consist of " a President, 
 five Fellows, and a Treasurer." The new charter 
 omits this specification wholly, and merely enumer- 
 ates the persons, who shall be the President and 
 Fellows respectively." — You have appended a note 
 to your pamphlet, for the sole purpose of contro- 
 verting this statement ; and wind it up with sug- 
 gesting, that the memorialists probably omitted to 
 read the whole charter. Your words are, " The me- 
 morialists are not quite correct in saying that ' the 
 charter of 1672 omits the specification of five Fel- 
 lows, and a Treasurer, and merely enumerates the 
 persons, who shall be President and Fellows res- 
 
 * The records of the Overseers first began to be kept in 1707; a good 
 reason for their not containing the charter of 1672. 
 
10 
 
 I 
 
 59 
 
 pectively.' — The charter (of 1762) distinctly de- 
 clares that the President, Fellows, and Treasurer 
 or the Fellows alone, when there is no President, 
 shall be the immediate governors. — There is no 
 change in this respect. This mistake was proba- 
 bly owing to the memorialists omitting to read the 
 whole charter." 
 
 Now I might content myself with leaving the 
 thing on your own statement. The words you 
 quote from the charter of 1672, and in regard to 
 which you say ' there is no change in this respect' 
 have nothing corresponding to them, in any part of 
 the charter of 1650. The word " governors' is 
 not found in it. Nor is there any sentence corres- 
 ponding with the one you quote ; and of which you 
 say it makes no change. But you have both mis- 
 quoted and misinterpreted what the memorialists 
 do really say. You put words between inverted 
 commas as said by the memorialists, which they do 
 not say, either exactly or in substance. The me- 
 morialists said, that it was ordered, by the old char- 
 ter, that the corporation should consist of a Presi- 
 dent, five Fellows, and a Treasurer, and that the 
 charter of 1672 wholly omits this specification, viz. 
 that the corporation should consist of these persons. 
 You represent the memorialists as saying " that the 
 charter of 1672 omits the specification of five Fel- 
 lows," &c. To put the matter in a clear light, and 
 show how far you are borne out, in saying that the 
 charter of 1672 made no change in respect to the 
 specification in question, I will quote the beginning 
 of both charters. 
 
 Charter of 1650. Charter of 1672. 
 
 Whereas, by the good hand 
 of God, there has been erected 
 and continued a college in Cam- 
 bridge, in the county of Middle- 
 
/ Ob 
 
 60 
 
 Whereas, through the good 
 hand of" God, many well devoted 
 persons have been and daily are 
 moved and stirred up to give and 
 bestow sundry gifts, legacies, 
 lands, and revenues for the ad- 
 vancement of all good literature, 
 arts, and sciences in Harvard 
 College in Cambridge, in the 
 county of Middlesex, and to the 
 maintenance of the President 
 and Fellows thereof, and for 
 all accommodations of buildings 
 and all other necessary provi- 
 sions, that may conduce to the 
 education of the English and In- 
 dian youth of this country in 
 knowledge and godliness : 
 
 It is therefore ordered and 
 enacted by this court and the 
 authority thereof, that, for the 
 furthering of so good a work, 
 and for the purposes aforesaid, 
 from henceforth that the said 
 college in Cambridge, in Middle- 
 sex, in New England, shall be a 
 corporation, Consisting of seven 
 persons, to wit, a President, five 
 Fellows, and a Treasurer or 
 Bursar ; and that Henry Dun- 
 ster shall be the first President, 
 Samuel Mather, Samuel Dan- 
 forth, Masters of Arts, Jonathan 
 Mitchell, Comfort Star and Sam- 
 uel Eaton, Bachelors of Arts, 
 shall be the five Fellows, and 
 Thomas Danforth to be the pre- 
 sent Treasurer, all of them be- 
 ing inhabitants of the Bay, and 
 shall be the first seven persons, 
 of which the said corporation 
 shall consist, &c. 
 
 sex, called by the name of Har- 
 vard College, and that by an 
 instrument or charter dated the 
 31st of May, 1650, the Presi- 
 dent and Fellows thereof were 
 established to be one body cor- 
 porate, by the authority of this 
 court : And whereas seveial gifts 
 and donations have been made 
 and are still making, by many 
 well devoted persons, inhabitants 
 of this country, as also strangers, 
 for the maintenance of the 
 
 GOVERNORS and GOVERNMENT 
 
 thereof, and for all the accom- 
 modations of the scholars there- 
 of in books, buildings, lectures, 
 scholarships, and all other neces- 
 sary and fitting provisions, that 
 may conduce to the education of 
 the English and Indian youth ; 
 now for the perpetuation and 
 further advancement of so good 
 a work and for the better encour- 
 agement of all persons therein 
 concerned, or to be concerned, 
 it is ordered and enacted by this 
 court and the authority thereof, 
 that Leonard Hoar, Doctor in 
 Physic, be the present President 
 of said Harvard college, Mr 
 Samuel Danforth, Fellow of the 
 said college, Mr Urian Oakes 
 Pastor of the church of Cam- 
 bridge, Mr Thomas Shepherd, 
 teacher of the church of Charles- 
 town, Mr Joseph Brown and Mr 
 John Richardson, Masters of 
 Arts, be the Fellows, and Mr 
 John Richards the present Trea- 
 surer of the said college and cor- 
 poration for the time being ; and 
 that the President, Fellows, and 
 Treasurer of the said college, or 
 the Fellows alone, when there is 
 
m 
 
 61 
 
 no President established, and 
 their successors from time to time 
 be the immediate governors 
 thereof, &c. 
 
 The reader may now judge whether the new 
 charter " made no change," in respect to the speci- 
 fication, that " the corporation should consist of a 
 President, five Fellows, and a Treasurer," which the 
 memorialists assert, and I must reassert to be 
 wholly omitted in the charter of 1672. Nay, though 
 the simple phrase "five Fellows," was not the spe- 
 cification intended by the memorialists, I will now 
 go farther and say that that phrase does not occur 
 in the charter of 1672. 
 
 In pursuance of this part of my attempt, I shall 
 now adduce a series of Public Acts, which all con- 
 firm the interpretation here given of the charter, 
 and which speak of the Fellows as persons sup- 
 ported at the college. With one exception, they 
 are now, I believe, for the first time presented to 
 the public, having been copied for the present oc- 
 casion, from the manuscript records of the Court. 
 
 In August, 1652, a collection was directed to be 
 made by the various towns, in the jurisdiction, for 
 the service of the college. There is no doubt, from 
 the document I shall immediately cite, that this col- 
 lection was designed for the maintenance of the 
 President and Fellows of college ; but as that does 
 not appear on the face of the act, I shall pass it 
 over. 
 
 Under date of October 19th, of the same year, 
 (two years after the charter was granted,) the pub- 
 lic records contain what is called "a Declaration for 
 the advancement of learning," from which I extract 
 the following passage. After stating, by way of 
 
HJ> 
 
 62 
 
 preamble, that the young men educated at Harvard 
 college are apt, on their graduation, to seek em- 
 ployment in foreign parts, this Declaration pro- 
 ceeds. 
 
 "It is therefore ordered and hereby enacted, by this court, 
 that a voluntary collection be commended to the inhabitants 
 of this jurisdiction, for the raising of such a sum, as may be 
 employed for the maintenance of the President, certain Fel- 
 lows, and poor scholars, in Harvard college, and for that 
 purpose do further order that every town in this jurisdiction 
 do choose one meet person, to take the voluntary subscrip- 
 tions of such as shall underwrite any sum or sums of money 
 for that purpose, and to make return thereof to the next court : 
 and for as much as all the colonies are concerned therein, 
 this court doth order the secretary to signify to the governors 
 of the several colonies our endeavors herein, and to commend 
 the same unto them, for their help and furtherance in so good 
 a work." 
 
 These collections throughout the State and the 
 other colonies were actually made. Not only the 
 towns in Massachusetts, but of Plymouth, New 
 Hampshire, and Connecticut contributed their share 
 " to the maintenance of the President and Fel- 
 lows" of Harvard college, under the charter of 
 1650. 
 
 II. 
 
 In June 1653, a noble donation was made by the 
 court to the same end, and in the following words, 
 
 " For the encouragement of Harvard College and the so- 
 ciety thereof, and for the more comfortable maintenance and 
 provision of the President, Fellows and Students thereof, in 
 time to come, this court doth grant unto the said society and 
 corporation, for the ends aforesaid, two thousand acres of 
 land, within this jurisdiction, not formerly granted to any 
 other, to be taken up in two or three places, where it may be 
 found convenient, and to this end it is desired that the said 
 corporation of the college will appoint some persons, in their 
 
JJj 
 
 63 
 
 behalf, to find out the places where said land may be freely 
 taken, and to make return as soon as they may, that the court 
 may more particularly and expressly confirm the same." 
 
 In 1658 this liberal grant was laid out to the col- 
 lege, for the more comfortable maintenance and 
 provision of the President, Fellows, and Students, 
 in time to come. 
 
 III. 
 
 Again in August 1653, we have on the records 
 of the court a document of some length, but of such 
 particularity and interest, in this connexion, that I 
 shall venture to quote the whole of it. 
 
 " The court being informed that the present condition of 
 the college at Cambridge calls for supply, do order that Cam- 
 bridge rate for this year, now to be collected, be paid in to 
 the steward of the college, for the discharge of any debt due 
 from the country to the said college ; and if there be any 
 overplus, to be and remain for the college stock and for fur- 
 ther clearing and settling all matters, in the college, in refer- 
 ence to the yearly maintenance of the President, Fellows, and 
 necessary officers thereof, and repairing the houses, that so 
 yearly complaints may be prevented, and a certain way set- 
 tled, for the due encouragement of all persons concerned in 
 that work. The court doth hereby appoint Mr I. Nowell, 
 Capt. Daniel Gookin, Capt. John Leverett, Capt. Edward 
 Johnson,* and Mr Edward Jackson, or any three of them to 
 be a committee to examine the state of the college, in all re > 
 spects, as is hereafter expressed, Mr Nowell to give notice of 
 the time and place of meeting : 
 
 1. To take account of all the incomes of the college 
 and profits arising due to the officers thereof, either by gift, 
 revenues, study rent, tuition fees, commencements, or any 
 other profits, arising due from time to time, as near as may 
 be since first the President undertook the work. 
 
 2. To examine what has been paid and disbursed either 
 for buildings, repairing, or any otherwise paid or reserved an- 
 nually for maintenance of the President, Fellows, and other 
 officers thereof 
 
 * Author of Wonder working Providence, see above, page 34, 
 
jfjfa 
 
 64 
 
 3. To consider what may have been yearly received by 
 the President, out of any of the incomes and profits aforesaid, 
 for his own use and maintenance as near as conveniently may 
 be, ever since he came to the place of President ; also what 
 allowances have been made yearly to the Fellows and other 
 officers. 
 
 4. To weigh and consider what may be fit for an honora- 
 ble and comfortable allowance annually to the President 
 heretofore, and for the future, and how it may be paid here- 
 after. 
 
 5. To consider what number of Fellows may be necessary 
 for carrying on the work in the college, and what yearly al- 
 lowance they shall have and how to be paid. 
 
 6. To direct some way how the necessary officers, as 
 steward, butler, and cook may be provided for, that so the 
 scholars' commons may not be so short, as they are now oc- 
 casioned thereby. 
 
 7. To take cognizance of all and every matter and thing 
 concerning the said college, in reference to the welfare there- 
 of, in outward things and to present a way how to regulate 
 and rectify any thing that is out of order. 
 
 8. To examine what sums have been and of late are pro- 
 mised, by several towns and persons, for the use of the col- 
 lege and to give order for the collection thereof, and propose 
 a way how such monies may be improved for the best benefit 
 of that society for the future, and this committee are hereby 
 authorised to make return of what they do to the next court 
 of election to be confirmed, if they shall judge meet." 
 
 From this important document many inferences 
 might be drawn. It is superfluous to say, that it 
 establishes, in the most ample manner, the resi- 
 dence of the Fellows, the point now under con- 
 sideration. It proves, that the government claimed 
 and exercised the visitatorial power : and whereas 
 you have intimated, (p. 25) that the instructors of 
 the college were alluded to, by that provision of 
 the charter, which authorizes the President and 
 Fellows to choose the necessary officers, you here 
 see, by the sixth article of these instructions, that 
 
in 
 
 65 
 
 the officers alluded to are steward, butler, and 
 cook. 
 
 IV. 
 
 The committee thus raised made a report, which 
 is not preserved, but the records of the court con- 
 tain the doings had thereon, August, 1653. 
 
 " The court on perusal of the return of the com- 
 mittee appointed to consider the college business, 
 do judge, that the ten pounds brought in upon 
 account by the President of the college, for his care 
 and pains for this twelve years last past, in looking 
 after the affairs of the college in respect of build- 
 ing, repairing, or otherwise be respited, till this 
 court take further order thereon ; and that the con- 
 tribution and subscriptions lately given in, or which 
 shall hereafter be given in, by several towns and 
 persons, together with all other stock appertaining 
 to the college shall be committed to the care and 
 trust of the overseers of the college, who have 
 hereby power to give order to the Treasurer of the 
 college to collect the several subscriptions, which 
 are or shall be hereafter due from time to time ; 
 and in case of non-payment thereof, that it be se- 
 cured by the several towns and persons, so long as 
 it shall remain unpaid, and the produce of it to be 
 paid to the said Treasurer, and to be for the main- 
 tenance of the President, Fellows, and other ne- 
 cessary charges of the college, and the several yearly 
 allowances of the President and Fellows, to be 
 proportioned as the said overseers shall determine 
 concerning the same." 
 
 This document is of very great importance. It 
 
 proves that the subscriptions so often alluded to 
 
 made one fund with the other college stock, which 
 
 fund was pledged, among other necessary charges, 
 
 9 
 
J1A 
 
 66 
 
 to the maintenance of the President and Fellows. 
 It proves that the distinction of two sorts of Fel- 
 lows, those of " the House" and of " the Corpora- 
 tion" was not yet known ; since had it been, the 
 Fellows of the corporation, and not the overseers, 
 would have fixed the stated salaries. Of the stock 
 alluded to, the rents of Charlestown ferry were of 
 course a part. Those rents were given as early 
 as 1638, and considering the antiquity of the ap- 
 propriation, its increased value, and its permanency, 
 it is much the most valuable donation ever made 
 the college. It is as solemnly pledged, as any act 
 of those who gave it could pledge it, to " the main- 
 tenance of the President and Fellows of the college, 
 and other necessary charges." 
 
 V. 
 
 To put this matter beyond question, I quote the 
 following act of the year 1654. As it has been 
 often printed* and the preamble, though interest- 
 ing, contains nothing particularly to the point, I 
 shall only quote the body of the act. 
 
 " It is therefore ordered by this Court and the authority 
 thereof, that, besides the profit of the ferry formerly granted 
 to the college, which shall be continued, there shall be yearly 
 levied by addition to the country rate, one hundred pounds to 
 be paid by the Treasurer of the country to the college Trea- 
 surer, for the behoof and maintenance of the President and 
 Fellows, to be distributed between the President and Fellows 
 according to the determination of the Overseers of the college, 
 and this to continue during the pleasure of the country." 
 
 The document proves, if it needed proof, that 
 the income of Charlestown ferry was appropriated 
 to the maintenance of the President and Fellows. 
 
 * The General Laws and Liberties of the Massachusetts Colonv, Cambridge, 
 1672, p. 30. 
 
 Charters and Laws of the Colony and Province, p. 80. 
 
as 
 
 67 
 
 This act expressly says, that besides the profits of 
 the ferry formerly granted to the college, there shall 
 be yearly levied one hundred pounds for the behoof 
 and maintenance of the President and Fellows. 
 The mention of the gift of the ferry was not mere- 
 ly a historical mention of it as a fact ; for then the 
 original donation of 400/. which was laid out in 
 erecting the buildings, would have been also com- 
 memorated, or alone commemorated, as the more 
 important at that time. Instead of this, it is said, 
 that besides the ferry formerly given, one hundred 
 pounds more shall now be given, for the mainte- 
 nance of the President and Fellows. — The proceeds 
 of the ferry, without reckoning interest upon them, 
 have probably amounted to as much as all the other 
 unappropriated funds of the college at the present 
 day, and in the plain interpretation of the acts and 
 laws of those who gave them, they cannot legally 
 be applied to any other object. But whatever be 
 thought of this, which it was no part of my present 
 object to urge, I apprehend that we shall not again 
 be told, that the proposition relative to the resi- 
 dence of Fellows, in the intendment of the charter, 
 rests upon " supposed analogies and gratuitous con- 
 jectures." — The acts I have cited were passed by 
 the men, who gave the charter, and knew what 
 they intended to provide in it. 
 
 There is one remark relative to these dona- 
 tions, which irresistibly forces itself upon the 
 mind. This annual grant of one hundred pounds 
 to the President and Fellows — a munificent sum 
 considered in reference to the poverty of the 
 times — though annually expended in the support 
 of these personages, is in reality to be considered 
 a permanent stock or fund, of which the college, 
 at the present day, is deriving the full benefit. 
 It was given to support and uphold the college ; 
 
di6 
 
 68 
 
 it did support and uphold it in times and cir- 
 cumstances, trying beyond the imagination of 
 these prosperous days. It therefore lays the pre- 
 sent generation as much under an obligation to 
 administer the college according to the charter, as 
 then understood, as if all those sums given, and all 
 the interest on them, were now at interest and ready 
 to lapse to the Commonwealth, if not appropriated 
 agreeably to the conditions on which they were 
 bestowed. It is observed in your pamphlet, that 
 M a very large proportion of the college funds have 
 been given to the college, under the present organ- 
 zation ; and much larger sums since the non-resi- 
 dent fellows constituted the majority than before ; 
 and it is fair to presume, that the donors placed a 
 confidence in the corporation as at present consti- 
 tuted," &c. — I have often heard statements like 
 this, but never with full conviction of their justice. 
 If money properly expended in the necessary ser- 
 vice of the college be as truly invested in a perpet- 
 ual fund, as if it had been put out at interest, there 
 is no question but that the donations of the first 
 thirty years are more important and valuable, than 
 all the munificence of modern days. The contri- 
 butions raised " in pecks, in half bushels, and bush- 
 els of corn," and turned in kind into the college 
 buttery, look humble at the present day ; but had 
 it not been for them, not only the college would 
 not have existed, but the State might never have at- 
 tained and supported that character, which our 
 fathers constantly ascribed in part to the happy in- 
 fluence of this seat of letters. 
 
 Having thus gone through a list of some public 
 acts, I shall mention some private donations, ex- 
 pressly given for the support of resident Fellows, 
 and which I must leave it to gentlemen " conversant 
 
441 
 
 m 
 
 with judicial inquiries," to pronounce upon, in the 
 present administration of the college charter, by 
 which there are no Fellows to be supported. 
 
 To the first of these I have already alluded. It 
 is the " Fellows' orchard," afterwards called " Tu- 
 tors' orchard" and "Tutors' lot," given in 1645, 
 for the use of the resident Fellows ; and though 
 about twenty five years ago claimed by the non- 
 resident corporation to be their property, yet still 
 rented by the tutors on their own account, down to 
 the present day. I would fain know why this alone 
 of all the college property has been separated from 
 the stock of the corporation, and retained in the 
 hands of the residents ? 
 
 II. 
 
 In 1652, two years after the charter, a merchant 
 of Boston, named Coggan, gave a piece of real 
 estate to Henry Dunster, President of Harvard 
 College, "for the use of the President and Fellows 
 of the said college, so long as they and their suc- 
 cessors profess and teach the good knowledge of 
 God's holy word and works, and such languages, 
 arts, and sciences as truly and christianly further 
 the said good and profitable ends." — Here, I appre- 
 hend it to be exceedingly obvious, that the Fellows, 
 for whom this foundation was made, were actually 
 teachers. It cannot be said, that any of the present 
 Fellows of the college teach any languages, arts, 
 or sciences whatever. 
 
 III. 
 
 In 1653, John Glover of Boston, in his last will, 
 bearing date April 11, gave a legacy to Harvard 
 
MS 
 
 70 
 
 College at Cambridge, "for and towards the main- 
 tenance of a Fellow there, jive pounds forever" 
 
 IV. 
 
 In 1653, also Robert Keyne left three hundred 
 and twenty pounds, and about as much more con- 
 tingently, " for poor and hopeful scholars, and for 
 some addition yearly to the poorer sort of Fellows" 
 
 V. 
 
 In 1670, the Pennoyer fund was given, by which 
 it was ordered, that " two Fellows and two scholars 
 forever, should be educated, brought up, and main- 
 tained in the college at Cambridge." 
 
 # * #• 
 
 These foundations, some as I know, all as I 
 presume, are still in existence and still productive. 
 Terrific representations have been made, openly 
 and privately, of the effect that the claim of the 
 Memorial would have on the college funds, if it 
 should be sustained. I should be glad to be in- 
 formed what is the effect, on funds given for the 
 maintenance of resident Fellows, of an administra- 
 tion of the charter, by which no such Fellows exist. 
 Who receives that money given, on their death 
 beds, by pious men, in times of small things, for 
 the support and maintenance of the resident Fel- 
 lows ? How much or how little was given in this 
 way, I do not know. The five foundations I have 
 enumerated are all, of which I made a note in cur- 
 sorily examining some of the college books, more 
 than a year since, and with no view to this contro- 
 versy. Very possibly much larger sums were given 
 in the same way. I find in a document of Ran- 
 dolph, addressed to the privy council and bearing 
 date October 12, 1676, after the new college char- 
 
&3 
 
 71 
 
 ter, the following account of the support of the 
 Fellows, which would lead us to suppose, that very 
 considerable permanent foundations were made for 
 them, were it not that a part of their maintenance 
 was derived from the annual State grant and from 
 tuition fees. " The allowance of the President," 
 says Randolph, " is one hundred pounds a year and 
 a good house. There are but four fellowships; the 
 two seniors have each thirty pounds per annum ; the 
 two juniors fifteen pounds, but no diet is allowed. 
 These are tutors to all such as are admitted stu- 
 dents.*" 
 
 I consider it, by this time, pretty well made out, 
 that the Fellows, by the intendment and provisions 
 of the charter, by many laws, and many foundations, 
 were resident. It is obvious to enquire how the 
 departure could be made at the first ; and in what 
 mode the consciences of those, who made it, were 
 satisfied. — Though the paucity of documents does 
 not enable us to point out the precise dates of the 
 different stages of the progress, there can be but 
 little division of opinion, as to the mode in which it 
 was effected. I agree entirely with you, in thinking, 
 that five Fellows were more than was wanted for 
 the instruction of the small number of students, who 
 resorted to the college in its early periods, espe- 
 cially as the President took part in the business of 
 instruction. Though it is probable that some duty 
 was required of all the Fellows, as a quid pro quo 
 for the stipends they received, yet it is highly prob- 
 able that three or four only had a considerable 
 maintenance and one or two only a trifle toward 
 their support. But in the process of time, as the 
 country increased in population, and numerous es- 
 tablishments in the church were opened to the 
 
 * Hutchinson's Papers, 502. 
 
JW 
 
 72 
 
 graduates, the necessity of a provision for them at 
 college became less urgent ; and as the funds of 
 the college at the same time were straightened, it 
 was extremely natural that instead of fae resident 
 Fellows, non-residents should be introduced to fill 
 the places not actually wanted for instructers. The 
 habits of administering law were very loose, and 
 unbounded liberties were taken with the college. 
 Hutchinson says " the president of the colony and 
 afterwards the governor assumed the whole author- 
 ity, when they thought fit." The overseers, in 
 their turn, were equally arbitrary, and even the pre- 
 sident, Dr Hoar, expelled a Fellow for being of the 
 church of England.* In 1672, a charter, with a 
 majority of non-residents, was enacted. In 1673, 
 according to Hutchinson, more members were ad- 
 ded to the corporation. In 1692, a charter with 
 eight Fellows was ordered; in 1697, another with 
 a vice president and fourteen Fellows ; nor was it 
 till 1707, after an interregnum of thirty five years, 
 that the charter of 1650 was professedly re-estab- 
 lished. So long and in part so stormy a period for 
 the college was sufficient to break up all steady ad- 
 ministration, on the primitive construction. 
 
 The immediate salvo, made use of to cover the 
 most important deviation from the charter, was the 
 discrimination between Fellows of the house and 
 Fellows of the corporation. When this discrimi- 
 nation was first made, it is out of my power to say. 
 There is not the shadow of evidence, that it was 
 coeval with the charter of 1650, and there are tra- 
 ces of its non-existence as late as 1707. Hutchin- 
 son, quoting the public records, says that Leverett 
 was declared President January 14, 1707, and the 
 
 * Hutchinson's Papers, 502. This however rests on Randolph's authority 
 and may be exaggerated. 
 
Jli 
 
 73 
 
 college was put under his care, " agreeably to the 
 choice of the Fellows of the house, approbation of 
 the overseers, and votes of the council and assem- 
 bly in their last preceding session."* Here Fel- 
 lows of the house, in the official records of the gov- 
 ernment, are plainly put for the whole corporation. 
 Moreover, in the controversy relative to Messrs 
 Sever and Welsted, they are repeatedly called Fel- 
 lows by the Overseers, without any such qualifica- 
 tion as that of Fellows of the house. When this 
 name was devised is of little consequence. It is 
 sufficient that it is unknown to the charter, and that 
 as has already been shown it entirely changes 
 the legal constitution of the college. 
 
 One word more, with respect to the nature of this 
 change and the consequent introduction into the col- 
 lege of a new board of non-residents, interposed be- 
 tween the overseers and the resident immediate go- 
 vernment. You observe (p. 5) that as the president, 
 a resident officer, is ex officio a member of the corpo- 
 ration, and as the memorialists contend that for near- 
 ly fifty years there was, besides the president, a ma- 
 jority of residents in the board, " how the non-resi- 
 dent fellows could have forced themselves into the 
 board, against the will of the officers, and against 
 the will of the overseers, who are visiters, it is not 
 easy to perceive." — Though the difficulty is not 
 great in my mind, I will endeavor to remove it. 
 The first non-residents were introduced by acts of 
 the government, altering the charter. When in 
 1707 the board was reduced from fifteen to five, it 
 was made to consist of three non-residents and two 
 residents. By what process this was effected I 
 know not. By no process which you would call le- 
 gal, for neither the general court, nor overseers have 
 
 * Hutchinson, i. 175. 
 
 10 
 
74 . 
 
 the power to do such an act, (on the principles, which 
 you maintain,) and there was no legal corpo- 
 ration. — When in subsequent times the board has 
 been constituted of three residents, and two non- 
 residents, the death or removal of one of the former 
 would of course leave the residents and non-resi- 
 dents balanced ; and the president naturally inclines 
 to the former, because the introduction of other 
 residents into the corporation lessens his weight 
 there. As to the overseers, their power is only 
 negative, and could extend only to defeating the 
 election of individual candidates. — They might in- 
 definitely negative non-residents, as decidedly as 
 they did Dr Sewall in 1720; but the corporation 
 could indefinitely choose them. — Besides both they, 
 the resident Fellows, the public, and the non-resi- 
 dent members of the corporation themselves appear 
 to have been willing, that the affair should rest on 
 the loose footing of a compromise. It is only till 
 our own day, and since the year 1806, that the 
 non-residents seem finally to have settled it, that 
 no member of the immediate government, is fit to 
 be introduced into the corporation. You say you 
 read with wonder the statement of the memorialists, 
 that " this privilege (that of being of the corpora- 
 tion) was in 1806, after one hundred and seventy 
 years possession, entirely wrested from them by the 
 non-resident members of the corporation." — The 
 statement, however wonderful, is strictly true. Till 
 1806, with the exception of one short period at the 
 end of the last century, some one at least, common- 
 ly two, often three residents had for one hundred 
 years been Fellows. And it is only since 1806, 
 that out of a body of instructers more numerous, 
 and I hope not less respectable, than at any former 
 period, the non-resident gentlemen have not found 
 
JW> 
 
 75 
 
 a man worthy to sit by their side. Dr Ware was 
 proposed, and strongly recommended, on your re- 
 signation, two years ago. His long connexion 
 with the college, his devotedness to its interests, 
 his thorough acquaintance with its concerns, his 
 acknowledged energy and efficiency in administer- 
 ing its government, taken in connexion with the 
 resolution adopted, when his professorship was 
 founded, and adhered to for seventy years, that " the 
 professor of divinity should always be a member of 
 the corporation" led to a very strong hope, on the 
 part of many, that he would be admitted. But the 
 non-resident gentlemen judged that the Hon. H. G. 
 Otis was better acquainted with the college affairs, 
 and more conversant with the administration of lit- 
 erary institutions, and he was accordingly elected. 
 
 It is now necessary to say something of the case 
 of Sever and Welsted, " the tools with which an 
 unholy and illiberal work was to be accomplished," 
 as you call them, by rather a strong phrase, consid- 
 ering that the work in question is one, which you 
 only " think you have discovered." — I would first 
 premise, that you have taken no notice of the refu- 
 sal of the overseers to confirm the election of Mr 
 Sewall of Boston to the vacancy occasioned by Mr 
 Stevens' death, and their requisition, that the vacan- 
 cy be filled up by a resident Fellow. Since Mr 
 Sewall's character was unexceptionable, and Mr 
 Robie (the resident) had no particular recommen- 
 dation beyond residence, you ought, I think, to 
 propose some explanation of this step, on the part 
 of the overseers. 
 
 But to return to the case of Sever and Welsted, 
 which I think I shall show you have hastily treated. 
 You first demur to the jurisdiction of the court, 
 and argue that ".the legislature had no authority in 
 
d^ 
 
 76 
 
 the case," and intimate, that instead of quoting it 
 as a precedent " the memorialists ought to blush 
 for the legislature." Reserving the right of blush- 
 ing, as one of those franchises which we are all 
 free to exercise at our own discretion, let me ob- 
 serve that the legislature acted by request of the 
 overseers. Yes, this " barefaced usurpation," as 
 you call it, was actually undertaken by the general 
 court, in consequence of a Memorial presented to 
 them by the overseers, a body consisting of the 
 governor, the eighteen councillors, and the minis- 
 ters of the six neighboring towns, in which memo- 
 rial, bearing date June 13, 1722, the overseers 
 prayed the general court, that the number of the 
 corporation might be enlarged, and that in so do- 
 ing, regard be had to the " resident Fellows or 
 Tutors, that they be of that number." — And now, 
 dear sir, what becomes of this " barefaced usurpa- 
 tion ;" of your position, that the legislature had no 
 authority in the ca^e, that they attempted " to ex- 
 ercise powers truly despotic," that two discontented 
 tutors " instead of applying for a mandamus or a 
 quo warranto to settle the question of right, went 
 directly to the legislature to ask them to judge upon 
 private rights," and that in so doing they were but 
 " the tools of an unholy and illiberal work," of which 
 the authors and plotters, by a rather comprehen- 
 sive denunciation, you assume to be " the Mathers 
 and the rulers of the church and State generally ?" 
 It is, you perceive, entirely imaginary. The motion 
 was given by the overseers, who asked an enlarge- 
 ment of the numbers of the Corporation, in order 
 that the resident Fellows might be brought in. 
 
 This memorial of the overseers was committed 
 to a joint committee of both houses, which consist- 
 ed of the following persons, — for it is important to 
 
J25 
 
 ii 
 
 name the individuals, that stood forward, in dealing 
 out "the fury of the popular branch" on this occa- 
 sion. — The committee consisted of ten, five from 
 the house and five from the council. The mem- 
 bers from the house were John Clark, very often a 
 representative from Boston, and whose character 
 may in some degree be inferred from his place as 
 speaker of the house ; Elisha Cook also a Boston 
 member, clerk of the Supreme Court, and at a sub- 
 sequent period agent of the colony at London and 
 a councillor. He was a very decided member of 
 the popular party, but receives from Hutchinson, 
 whose testimony on such a point is certainly impar- 
 tial, the character of " a fair, honest man, open in 
 his conduct and actuated by love of his country." 
 John Wainwright, of Ipswich, another of the com- 
 mittee was often employed in high trusts. John 
 Stoddard, of Northampton, was a fourth. "Few men, 
 says Hutchinson, were more universally esteemed ;" 
 and his father, famous Solomon Stoddard, whose 
 memory is still as a pot of frankincense in North- 
 ampton, who was graduated twelve years after the 
 charter of 1650 was given, and who had been a 
 Fellow under it, was still living and able to inform 
 his «on, what the provisions of the charter, in those 
 primitive times, were understood to be. Lastly, of 
 the committee of the house was, John Quincy, an 
 honorable name of an honorable man, whom I shall 
 not waste words in vindicating from the general 
 charges, which you make against the promoters of 
 this measure. Now let us look at the committee of 
 the council. They were, first, Thomas Hutchin- 
 son, father of the governor, a distinguished Bos- 
 ton merchant ; for twenty five years consecutively 
 a member of his majesty's council ; a man allow- 
 ed to merit the pious testimony of his son, " that 
 
4*L6 
 
 78 
 
 regardless of the frowns of a governor or the threats 
 of the people, he spoke and voted according to his 
 judgment, attaching himself to no party, any further 
 than he found their measures tend to the public in- 
 terest." Next was Edmund Quincy, a man in 
 whose praise the pages of our history are eloquent. 
 From youth till death, he was an object of love, con- 
 fidence, and pride ; an active and skilful soldier ; 
 an eloquent speaker, an upright and honorable 
 judge ; one of the most useful and accomplished 
 gentlemen in the province, who died as he had 
 lived, in the service of his country, and was honor- 
 ably buried at London, at the public expense of his 
 native land. Another of this committee was Ad- 
 dington Davenport ; of his history and character I 
 know nothing, but that he was Chief Justice of the 
 Supreme Judicial Court. Another was Benjamin 
 Lynde, also Chief Justice of the Supreme Judicial 
 Court. He was chairman of the committee ; of 
 which, finally, the last member was Paul Dudley, 
 then the first name in the province, son of the vet- 
 eran governor, Chief Justice of the Supreme Court, 
 Fellow of the Royal Society of London. Let me 
 have the pleasure of transcribing his character, in 
 the glowing words of his successor, Chief Justice 
 Sewall. 
 
 " Here (on the bench) he displayed his admirable talents, 
 his quick apprehension, his uncommon strength of memory 
 and extensive knowledge ; and at the same time his great 
 abhorrence of vice, together with that impartial justice, which 
 neither respected the rich, nor countenanced the poor man 
 in his cause. Thus, while with pure hands and an upright 
 heart he administered justice, in his circuit through the pro- 
 vince, he gained the general esteem and veneration of the 
 people. As his presence always commanded respect, so it 
 might justly be said of him, that he scattered iniquity with 
 his eyes, which struck with awe the most daring offenders. 
 
</£/ 
 
 79 
 
 When he spoke, it was with such authority and peculiar en- 
 ergy of expression, as never failed to command attention and 
 deeply to impress the minds of all, who heard him ; and his 
 sentiments of law and evidence, in all cases before the court, 
 had generally a determining weight with those, who were 
 charged with the trial of them." 
 
 Such is the splendid character of Chief Justice 
 Dudley, given by one authorized to do it ; and such, 
 as we have seen, the committee to whom the ques- 
 tion relative to the college was entrusted, and whose 
 report we shall presently quote. A committee 
 composed of what was wisest, most learned, most 
 patriotic in Massachusetts, containing, without ex- 
 aggeration, some of the most venerated names of 
 that period of our history ; — three individuals, who 
 filled successively the office of Chief Justice of the su- 
 preme court, a fourth a side Justice of the same court; 
 and the others, as far as we know them, men of the 
 most respectable standing. These were the leaders 
 of what you call an unholy and illiberal work ; these 
 the men who committed a barefaced usurpation, 
 who assumed an authority to which they had no 
 title ; who transgressed the dictates of British law 
 and well regulated liberty. 
 
 There are one or two facts relative to Chief Jus- 
 tice Dudley, which deserve particularly to be taken 
 along with us, in estimating the merits of this trans- 
 action. — He had himself been a Fellow and Tutor 
 of the college; and he is the first individual on the 
 catalogue, to whose name the title Tutor is given. 
 He took his first degree in 1690, and allowing him 
 to have been made tutor the same year, a space of 
 forty years from the charter of 1650 had elapsed, 
 in all which, not an individual is entered in the 
 college catalogue as a tutor ; and the only college 
 titles to be found are President, Fellow, and 
 Treasurer. As there were no Professors, till about 
 
M& 
 
 80 
 
 1721, this fact alone proves one thing, viz. that 
 there were no instructers at college, who were not 
 Fellows ; and that there must, down to a period 
 as late as 1690, have always been as many resident 
 Fellows as were needed for the business of in- 
 struction. 
 
 But there is another remark relative to Chief 
 Justice Dudley's connexion with the college. He 
 was born twenty three years after the charter of 
 1650, and of course was near enough the period of 
 it, to receive from his father and the older members 
 of the community direct information of the nature 
 and provisions of the charter in its original intend- 
 ment. Being himself the first individual with whom 
 a discrimination between the offices of Fellow and 
 Tutor was attempted, his attention must have been 
 specially turned to that point. Having studied law 
 at the Temple, and being a lawyer acknowledged 
 without a superior, and at the moment when the 
 report was brought in, a Judge on the bench of the 
 Supreme Court, he knew both the legal interpreta- 
 tion of the charter and the powers of the Legisla- 
 ture relative to the college. 
 
 It may be thrown out, that we know not that the 
 report was unanimously made by the committee. 
 True we do not know this. But as the committee 
 consisted of ten, the report must have been adopted 
 by at least six, on the most unfavorable supposition. 
 There is, in no part of the account, a hint of a di- 
 vision ; and no trace is to be found of any opposi- 
 tion to it, in its progress through the House, or 
 Council. 
 
 Such then was the constitution of the committee 
 appointed on this occasion, and the following the 
 report presented by Chief Justice Lynde : — 
 
 " The committee appointed to consider the me- 
 morial of the Overseers of Harvard College in 
 
m 
 
 81 
 
 Cambridge, having perused and considered the 
 Charter granted to the said College, by the General 
 Court of the Colony of Massachusetts Bay in the 
 year 1650, (which is their present constitution,) and 
 also the memorial aforesaid, came to the following 
 resolutions, which being put in practice would 
 answer the end of the memorial and be more bene- 
 ficial to that Society, than enlarging the number of 
 the Corporation. 
 
 " 1. That it was the intent of the said College 
 Charter, that the Tutors of the said College, or 
 
 SUCH AS HAVE THE INSTRUCTION AND GOVERNMENT OF 
 
 the Students, should he the Felloics and members 
 of the Corporation of the said College, provided 
 they exceed not five in number. 
 
 " 2. That none of the said Fellows be Overseers. 
 
 " 3. That the said President and Fellows of the 
 said College, or the major part of them, are not 
 warranted by the said Charter of the College to 
 fix or establish any salary or allowance for their 
 services, without the consent of the Overseers." 
 
 Now, considering that the Legislature was re- 
 quested by the Overseers, in a formal memorial, to 
 enlarge the numbers of the corporation " regard be- 
 ing had to the resident Fellows or Tutors, that 
 they be of that number;" it seems rather hard to de- 
 nounce it as a barefaced usurpation, that they re- 
 ported their opinion of the meaning of the charter 
 and ordered that to be enforced. This order they 
 had as good a right to pass, as the one which they 
 were requested to pass by the Overseers; and 
 even you will allow, that had the Overseers and 
 Corporation accepted this order or act, it would 
 have been legal. There was then no usurpation in 
 passing the Act ; the only usurpation (on your own 
 principles) would have been in violently carrying in- 
 11 
 
430 
 
 82 
 
 to execution an act passed and not accepted by the 
 Corporation and Overseers. It is certainly free to 
 the Legislature to offer a new charter or a modified 
 charter to any institution. 
 
 But if my recollection serves me, the Corpo- 
 ration did not, as you do now, demur to the au- 
 thority of the Court. I may err, for I speak from 
 a recollection of more than a year, which I have 
 not the means of refreshing, and I shall cheerfully 
 confess the error if it be one. But I think the 
 Corporation did not call in question the legality of 
 the Order ; that they argued to the intent and 
 meaning of the Charter and the expediency of the 
 change proposed. I do not recollect that they dis- 
 claimed the right of the Court to pass the order. — 
 My own opinion is, that by the power reserved to the 
 State by the law of 1642, and also as visiters, they 
 had a right to enact the order. But this opinion I 
 suggest with distrust, as I am aware that it is a 
 qucestio vexata, who are the visiters of Harvard 
 College. Mr Webster thinks the Corporation are 
 visiters. You think the Overseers are visiters. 
 The General Court of the Commonwealth in 1812, 
 supported as I have heard by the late Hon. Mr 
 Dexter, claimed and exercised the visitatorial 
 power, not only without the assent, but against the 
 remonstrance of the Corporation. — It seems there- 
 fore without warrant, that you call the exercise of 
 this power by the Legislature of 1722, a barefaced 
 usurpation. 
 
 To proceed, however, with the narrative; the 
 House of Assembly accepted their committee's re- 
 port, namely, " That the tutors of the college, or 
 such as have the instruction and government of the 
 students, should be the Fellows and members of 
 the corporation, provided they exceed not five in 
 
J$i 
 
 83 
 
 number," such, according to the report, being 
 "the intent of the charter:" and it was therefore 
 ordered that " the corporation for the future prac- 
 tise accordingly." The council concurred in this 
 order ; and the governor signed the order, with 
 the proviso, that " the Rev. B. Colman, Rev. B. 
 Wadsworth, and Rev. N. Appleton are not re- 
 moved by said order, but still remain fellows of the 
 corporation." It was on the view of these facts, 
 that the memorialists observed that " the order in 
 question passed in perfect legal form, notwith- 
 standing governor Shute's proviso ; an anomalous 
 nullity of no account." At this, you exclaim ; you 
 call it " strange." But you do not answer the ques- 
 tion fairly put in the memorial, and on which the 
 whole matter turns. The assembly passed the 
 bill, the council concurred, the governor signed it, 
 with a proviso. — Now it is asked in the memorial ; 
 " If he could subjoin a proviso one moment after 
 signing, why not an hour, a day, or a year ?" I 
 presume that with respect to giving his assent to 
 bills, the governor then, as now, could do only one 
 of two things, give his assent or not give it. I 
 never heard of a power to give it with a proviso ; 
 and I still think such a proviso " an anomalous 
 nullity." But why should we stand on words ? 
 Did the governor object to the principle of the 
 order ? No. — The order was, that henceforth the 
 resident tutors or instructers be the Fellows of the 
 corporation, in which there was at that time one 
 vacancy. The governor signs this order, only sti- 
 pulating that the present non-residents should not 
 be turned out. — Is there not here ground enough 
 for saying that all branches concurred ? The facts 
 are before the reader, and I will submit ta his 
 judgment. 
 
j(t2 
 
 84 
 
 But the House of Assembly justly conceiving 
 that the governor's proviso, if carried into effect, 
 would defeat the main design and purpose of their 
 votes, requested him to withdraw it. You infer 
 from this, that the main design was a vindictive one, 
 " instantly to get rid of certain obnoxious men ;" 
 and you endeavour to show that Dr Colman was 
 obnoxious. He was so, and though a very great 
 and good man, he was naturally obnoxious ; for he 
 was introduced into the ministry, against the order 
 of the churches then established. That this should 
 render a man obnoxious, one hundred years ago in 
 Massachusetts, does not imply a " furious" character 
 or a thirst for ( * summary vengeance" on the part of 
 the people or their leaders. Moreover, you speak of 
 " obnoxious men ;" but I never before heard that Mr 
 Wadsworth or Dr Appleton, the other two individu- 
 als in question, were obnoxious. There is no neces- 
 sity then for thus vilifying the House of Assembly. 
 The overseers had asked them for an order, of 
 which the only alleged design was to introduce the 
 residents into the corporation. The house passed 
 an order, of which this was the main design. The 
 governor assented to it, with a proviso, which would 
 have admitted one only of the residents at present, 
 and would have excluded two more, who had the 
 same right, for an indeterminate period. The as- 
 sembly therefore said the governor's proviso de- 
 feated their main design. The house requested 
 the governor to withdraw his proviso, which he 
 declined doing, as he had made it by advice of the 
 council and of the overseers. On this the house 
 voted, that the council in giving this advice had 
 contradicted their vote of concurrence in the order. 
 This was certainly true, and being so, it cannot be 
 called a burst of popular fury to assert it, in a sim- 
 
</$* 
 
 85 
 
 pie moderate way, and it will not be said, that the 
 house did more than this. 
 
 Notwithstanding the impatience of " a restraint 
 on their summary vengeance," which you ascribe 
 to the house, they did nothing further this session. 
 The next session, they only passed a resolution 
 counselling the corporation to adhere to their char- 
 ter. When the corporation requested to be heard, 
 in opposition to the principle of a measure, which 
 had passed the house, passed the council, and re- 
 ceived the governor's assent, with a saving only of 
 the individual seats of the non-resident incumbents, 
 the house, I will not say properly, but very natural- 
 ly, refused to hear them. The corporation wished 
 to argue against a principle, which every branch of 
 the government, with the assent of the overseers, 
 had already enacted. 
 
 The next year, in the winter session, the subject 
 was resumed ; the three resolutions re-enacted, 
 and sent up to the council, who deferred the mat- 
 ter till May, and nothing was done by " the fury of 
 the popular branch" to hasten them. — In May, 
 1723, poor Sever and Welsted, (the discontented 
 tutors,* whom you represent as having gone direct- 
 ly to the Legislature a year before, and having been 
 the tools, by whom this " unholy work" was put in 
 motion,) presented a memorial praying that they 
 might have the benefit of a principle, in which 
 every branch of the government had, a year before, 
 concurred. On receiving the petition, the House 
 sent to the council to know, what they had done 
 with the resolutions re-enacted the previous ses- 
 sion. The council informing them they had done 
 
 *Five years after, Mr Welsted became pastor of a church in Boston, and is 
 called by Father Barnard of Marblehead, (in his letter to President Styles,) 
 " A man of learning, a pious, humble, prudent and useful man in his day." 
 
JW 
 
 86 
 
 nothing, the house brooked this restraint on their 
 summary vengeance, so far as to put off the matter 
 till another session, for three were then annually 
 held. The first day of the next session, the house 
 took up the affair ; as the council did also. The 
 council requested the house to give the corporation 
 a joint hearing against a principle, which all 
 branches of the legislature had sanctioned ; and the 
 house refused, unanimously refused. The corpo- 
 ration were then heard before the council, who non- 
 concurred the resolutions, and here the affair stop- 
 ped. It stopped, in its outward management, but 
 not in its effects on the corporation. They had 
 from two legislatures received a useful lesson. The 
 house that enacted the orders in 1723 and on whom 
 you bestow such bitter reproaches, but who never- 
 theless contained among them some of the noblest 
 and purest sons of New England, were dissolved 
 and returned to the bosom of the people. A new 
 house was chosen and confirmed the doings of their 
 predecessors, and, finally, by an unanimous vote. 
 — What ! was every individual of that house con- 
 cerned in a barefaced usurpation, led away " by 
 popular fury," kept up for five or six sessions ? Is 
 this a probable account to give of the fathers of 
 Massachusetts ? This the character of the Quincys, 
 the Dudleys, and their colleagues ? — I do not believe 
 it. Moreover there is very strong reason, to 
 think that the corporation finally procured the 
 non-concurrence of the council by engaging to 
 compromise the matter ; for Professor Wiggles- 
 worth was chosen to the existing vacancy, and tu- 
 tor Sever to the next, at a time when tutor Flynt 
 was already in the board. 
 
 Such is this affair and such the grounds on which 
 you accuse the Legislature of " haste, passion and 
 
z/3 3" 
 
 87 
 
 unfairness," of " acting against the fixed principles 
 of British law and regulated liberty," of being "ut- 
 terly unworthy of notice," a "disgrace to the State," 
 of setting an example which, instead of quoting, the 
 memorialists ought to blush for, of being a body 
 concerned in " an unholy and illiberal work," and 
 more in the same strain. 
 
 I now come down to the period when our State 
 constitution was formed, and the privileges of 
 the college confirmed by it. You draw an argu- 
 ment from this, which from the summary and em- 
 phatic manner in which you pronounce it, you 
 appear to think of itself decisive. Your argument 
 is as follows. 
 
 " As all the charters had fallen by the revolution, or might, 
 (if the people had so pleased,) be considered as fallen, they 
 were at liberty to remodel all the corporations of the State. 
 At least there could then have been no power to control them. 
 Towards Harvard college their attention was specially di- 
 rected, and they made its concerns the subject of a special 
 chapter. — The corporation was then full ; full of non-resi- 
 dents except one. It is admitted by all that the office is a 
 franchise ; in this case, a freehold to the members. They 
 were personally confirmed in their franchise. This was the 
 most solemn construction and decision, by an authority before 
 which all legislatures and courts, which derive authority under 
 it, must bow." page 31. 
 
 As, in various parts of your pamphlet there is a 
 semblance of laying down legal principles, in op- 
 position to crude and merely popular notions on the 
 part of the memorialists, I must here observe that 
 your suggestion relative to the effect of the revolu- 
 tion on charters is wholly groundless, both in reason 
 and in law. Strange indeed, it would be, if a revo- 
 lution of a sober and virtuous people, and having 
 for its main objects the security of right and pro- 
 perty, had begun by annulling all the obligations 
 
f$6 
 
 88 
 
 of the social compact with respect to both. But* 
 however, to establish the point, Chief Justice Mar- 
 shall says, " It is too clear to require the support of 
 argument, that all contracts and rights respecting 
 property remained unchanged by the revolution. 
 The obligations, which were created by the char- 
 ter to Dartmouth college, were the same in the new 
 that they had been in the old government.* Mr 
 Justice Story in the same case says, " It is a prin- 
 ciple of the common law, which has been recog- 
 nized in this as well as in other courts, that the 
 division of an empire works no forfeiture of pre- 
 viously vested rights of property. And this maxim is 
 equally consonant with the common sense of man- 
 kind, and the maxims of eternal justice."! 
 
 But I am willing, for the sake of argument, to 
 concede, that the college charter was, or might have 
 been vacated by the revolution, and that it rested 
 with the people, in framing the constitution, to con- 
 firm it in whole or in part, or not, as they pleased. 
 The only question then is, what did the constitution, 
 or the people in framing it, confirm and establish 
 with respect to the President and Fellows of Har- 
 vard college ? You say that the incumbents at that 
 time were personally confirmed, in their franchise, 
 as members of the corporation. The whole argu- 
 ment, of course, rests upon the word personally, 
 and you have very naturally distinguished it in the 
 print. — The members of the corporation, at that 
 time, were, I think, Mr Bowdoin, Dr Cooper, Dr 
 Howard, Dr Lathrop, (of Boston,) and Professor 
 Wigglesworth of Cambridge. You argue that these 
 gentlemen (four of whom were non-residents) were 
 confirmed personally in their franchise as members 
 
 * Dartmouth College Case, p. 326. t lb. p. 373. 
 
=w 
 
 89 
 
 of the corporation, by the constitution. — On turn- 
 ing then to the fifth chapter of the constitution, 
 which is wholly occupied with the college, we may 
 verify the soundness of the argument. The only 
 passage, which relates to this point, is the follow- 
 ing. 
 
 " The President and Fellows of Harvard college, in their 
 corporate capacity, and their successors in that capacity, their 
 officers and servants, shall have, hold, use, exercise, and en- 
 joy all the powers, authorities, rights, liberties, privileges, im- 
 munities and franchises, which they now have, or are entitled 
 to have, hold, use, exercise, and enjoy, and the same are 
 hereby ratified and confirmed unto them, the said President 
 and Fellows of Harvard college and to their successors, and 
 to their officers and servants respectively forever." 
 
 This is the provision, on which your argument 
 rests, and it is not to be wondered at, that you do 
 not quote it, for it does not bear you out, in pre- 
 cisely the point to be proved. No one doubts that 
 the constitution confirmed the privileges of the cor- 
 poration of the college. The question is, did it 
 confirm the privileges of those, who were or should 
 be rightfully the Fellows ; or did it confirm the 
 then incumbents, rightfully or wrongfully, in their 
 offices, or, in your own language, did it confirm them 
 personally. Certainly it did not the latter. No 
 allusion is made to them personally; it is not said 
 that " Hon. James Bowdoin, Rev. Dr Cooper, Rev. 
 Dr Howard, Rev. Dr Lathrop, and Rev. Professor 
 Wigglesworth, the present Fellows of Harvard 
 college, in their corporate capacity, &c." They are 
 not named. They are not personally alluded to. 
 All questions of fact are wisely left untouched. 
 Who were the rightful Fellows, it was no part of the 
 business of the framers of the constitution to settle. 
 
 12 
 
d3$ 
 
 90 
 
 A moment's reflection on the intention of the 
 constitution is enough to refute the present argu- 
 ment. Who can suppose that the framers of it, in 
 proposing this chapter to the people, meant to ask 
 them to pass sentence on the respective titles of the 
 individuals personally to their offices ? The busi- 
 ness of the framers of the constitution was to se- 
 cure the college, not to secure Mr Bowdoin nor Dr 
 Wigglesworth. They either intended to confirm 
 those who were rightfully members of the corpo- 
 ration, or those who were wrongfully. It would 
 be derogatory to their probity to say, they meant to 
 confirm those who were wrongfully members, and 
 if they meant to confirm only those, who were right- 
 fully members, then the question at any time recurs, 
 who were rightfully members of the corporation. — 
 Suppose (for argument's sake) that one of the cor- 
 poration of 1780, like one of the corporation of 
 1 740, had been notorious for intemperance ; would 
 this provision of the constitution have saved him, 
 and continued him in office ? Suppose the corpo- 
 ration had claimed at this time to possess a tract of 
 land, but by a bad title ; would this provision of the 
 constitution bar the legal claimant? Certainly not. 
 The constitution meant to heal no defective titles, 
 to cover no violations of chartered rights, intention- 
 al or unintentional. It cannot seriously be thought, 
 that in the very act of confirming a charter, it in- 
 tended to shut the door to all remedy against a 
 capital violation of it. There seems to me absurd- 
 ity in the terms of the proposition. 
 
 There is one topic, which I had intended to treat 
 in some detail, but from which the length to which 
 I have already been led, obliges me almost entirely 
 to abstain ; I mean the visitatorial power. No 
 part of your pamphlet has appeared to me more 
 
: !/3J 
 
 91 
 
 hasty than that, where you deny the competency of 
 anybody, short of a court of justice, to grant relief, 
 supposing the grievance alleged in the Memorial 
 to be sustained. On any mere point of law, I should 
 place no reliance on my own opinion, in opposition 
 to the views of a jurist distinguished like yourself. 
 But you repeatedly recognize the visitatorial pow- 
 er ; you suppose it to reside in the board of Over- 
 seers ; and nothing is better settled than that the 
 law very much favors the jurisdiction of visiters in 
 colleges, and discourages a resort to courts. The 
 English courts have refused to take cognizance of 
 cases attempted to be brought before them, on the 
 ground that it was for the interest of the colleges, 
 that controversies arising in them should not be 
 brought before the public. Mr Christian, in his 
 notes to Blackstone, thus expresses himself. 
 
 "It is the duty of the visiter, in every instance, to effectu- 
 ate the intention of the founder, as far as he can collect it 
 from the statutes and the nature of the institution ; and in the 
 exercise of this jurisdiction he is free from all control. Lord 
 Mansfield has declared, that l the visitatorial power if proper- 
 ly exercised without expense or delay, is useful and con- 
 venient to colleges,' — and it is now settled and established, 
 that the jurisdiction of a visiter is summary, and without ap- 
 peal from it. 1 Burr. 200.*" 
 
 Mr Justice Story, in his learned opinion in the 
 Dartmouth college case, is equally full to the same 
 effect. He observes, 
 
 11 To all eleemosynary corporations a visitatorial power at- 
 taches as a necessary incident ; for these corporations, being 
 composed of individuals subject to human infirmities, are lia- 
 ble, as well as private persons, to deviate from the end of 
 their institution. The law therefore has provided, that there 
 shall somewhere exist a power to visit, enquire into, and cor- 
 
 * Christian's Blackstone, 1. 484. 
 
/Jlitf 
 
 92 
 
 rect all irregularities and abuses in such corporations, and to 
 compel the original purposes of the charity to be faithfully 
 fulfilled."* 
 
 A good proportion of the cases, in which the visit- 
 atorial power has been exercised in the English col- 
 leges, concern the claim to Fellowships, on which 
 claims the visiters have never scrupled to decide. 
 Nay, even in our own college, in the only instance 
 of which any detailed account remains of the re- 
 moval of a Fellow, the Overseers exercised the 
 visitatorial power of removing him, without the aid, 
 and against the protest of the corporation. The 
 appendix lo the Memorial of the corporation, pub- 
 lished in 1812, pronounces this " a singular pro- 
 cedure on the part of the Overseers." — Nothing, 
 however, could be more regular, nor better sup- 
 ported by the whole law of visitation ; supposing 
 the Overseers to be the visiters. — But the truth is, 
 the constitution of Harvard college does not rest 
 merely on the common law of visitation. The 
 charter of 1642 reserves to the State an unlimited 
 control over the affairs of the college. If the 
 Overseers then are visiters, they have sovereign 
 power to administer a remedy to any evil not 
 fatal to the charter. If they are not visiters, the 
 State is doubly competent, 1st, as visiter; 2d, by 
 power reserved ; and if the infraction of the char- 
 ter is of such a nature as to operate a forfeiture, 
 the State alone, in its capacity of sovereign, can 
 afford a remedy, by regranting the franchises. 
 This, no doubt, the State is fully competent 
 to do. Four new charters have been granted 
 to the college, since the original appointment of 
 the overseers as perpetual feoffees in 1642, and 
 
 * Dartmouth College Case, p. 346. 
 
Ui-d 
 
 93 
 
 when, on the revolution, that board expired by the 
 change in the form of government, their successors, 
 by an act of sovereign authority, were designated in 
 the constitution. In 1722, the overseers requested 
 the legislature to enlarge the number of the corpo- 
 ration, by adding the resident Fellows or tutors to 
 it. And though there may be doubts whether the 
 visitatorial power in itself extends to the appoint- 
 ment of Fellows ;* there is no doubt that in virtue 
 of the powers reserved to the State, and often ex- 
 ercised by it, a full remedy exists to fill up the 
 whole corporation, should all its seats at once be 
 vacated. Our fathers had no idea of putting this 
 power out of their hands. The legislature was, 
 from the first, nursing father and mother to the 
 college. The college came to it for every thing ; 
 for annual supplies ; for frequent extraordinary 
 grants ; for new charters ; for remedies under the 
 old ; sometimes even for bye-laws. Of the latter, 
 the early records of the court contain the following 
 curious example, which may be added to those al- 
 ready quoted to prove the residence of the Fellows. 
 
 " 1656, Oct. 14. It is hereby ordered, that the 
 President and Fellows of Harvard College, for the 
 time being, or the major part of them, are hereby 
 empowered, according to their best discretion, to 
 punish all misdemeanors of the youth in their so- 
 ciety, either by fine or whipping in the hall openly, 
 as the nature of the offence shall require, not ex- 
 ceeding ten shillings, or ten stripes for one offence ; 
 and this law to continue in force until this court or 
 the overseers of the college provide some other or- 
 ders to punish such offences." 
 
 If then the memorialists, as you intimate, are 
 very careful not to specify the remedy, which they 
 
 *It is laid down by Kyd, ii. 270, that the visiter, as such, has not this power. 
 
94 
 
 expect, it was not from any doubts of the full pow- 
 er vested in the proper quarter to afford it. The 
 memorial, you will remember, was addressed to 
 the corporation, and it was in the trust and hope 
 that the subject would there be amicably arranged. 
 That a different course has been adopted is well 
 known not to be the fault of the memorialists. 
 
 I have now gone through, I believe, the whole 
 argument of right, and it would be next in order to 
 follow you into that of expediency. This I would 
 very cheerfully do. The topic is one, which it 
 would be in my power to treat, much more fully 
 than that of law or of right. It is one, moreover, 
 in which all the advantage in the discussion would 
 be on my side ; for while you, in setting forth the 
 evils of a resident corporation,, have nothing but 
 conjecture, or if you please, probability to go upon, 
 at least for the last century, I might, in arguing in 
 favor of a resident corporation, review the whole 
 history and administration of college for years past ; 
 and it would of course require but little skill to 
 gain the victory, in such a contest of fact with con- 
 jecture. 
 
 But I forbear to enter into the discussion. I 
 have protracted this letter beyond the limits, to 
 which most readers will accompany me. The sub- 
 ject of expedience is a wide field, of itself enough 
 for separate discussion, and I must add that your 
 remarks, on this head, are of such a nature, that I 
 could not trust myself to engage in a full reply. I 
 shall only, in an exceedingly cursory manner, ad- 
 vert to a few of your statements. 
 
 You first endeavor to burden the doctrine of the 
 memorialists with the odium of the abuses in the 
 charitable establishments in England. You ob- 
 serve 
 
95 
 
 " We had supposed every reading man in Great Britain 
 and in America had been satisfied, from the investigation in 
 Parliament, as to the charities for education, that there had 
 never been laid open before such a scene of corruption and 
 abuse, and that this had arisen, precisely because these cor- 
 porations had been in the hands of the incumbents, under 
 the visitation sometimes of those self-chosen masters and Fel- 
 lows of colleges, and sometimes of right reverend bishops, but 
 whose visitation had become perfectly nominal." 
 
 I must confess the reading men of Great Britain 
 and America have enjoyed sources of information, 
 beyond my reach, if they have ever read of colleges 
 " under the visitation of self-chosen masters and 
 Fellows." — Moreover if I mistake not, the col- 
 leges in the two universities of Oxford and Cam- 
 bridge, of Eton, Winchester, and Westminster, 
 and several others, were excepted from the ju- 
 risdiction of the parliamentary committee, to which 
 you refer. 
 
 You next argue, that though the residents may 
 be (as the memorial alleges) practically acquaint- 
 ed with the business of education, this circumstance 
 does not fit them for administering the college. 
 On the contrary, it prevents them " from being 
 practical men, in a more extended sense : precise- 
 ly in proportion as they shall devote their lives to 
 the business of education, they must have had fewer 
 opportunities of knowing the world, its wants and 
 expectations ; its opinions and feelings ; its busi- 
 ness and concerns." — This, I confess, passes my 
 comprehension. To say that men, whose profession 
 it is to conduct the immediate instruction and go- 
 vernment of the college, who receive annual depu- 
 tations, (as they may be called) of the rising gen- 
 eration from all parts of the country, with the wants, 
 wishes, and opinion:: of parents and guardians, ex- 
 pressed with the most anxious detail ; who by 
 
96 
 
 ^very mail almost receive letters, in which some 
 opinion or fact relative to every branch of educa- 
 tion or discipline, as considered by the community, 
 is illustrated ; who read the newspapers, go into 
 society, and enjoy precisely the means of general 
 information, which the most non-resident member 
 of the corporation can enjoy ; to say that such men 
 do not know the wants of the community, as to ed- 
 ucation, is in my mind mere paradox. It is too 
 much to argue that the insurance offices must be 
 frequented, the courts of law followed, or the duties 
 of a pulpit discharged, in order to give a man such 
 a knowledge of the world, as would enable him to 
 administer a college. Let us reverse the proposi- 
 tion. Let the memorialists adopt your language 
 and say to the directors of the Suffolk bank or the 
 marine insurance office ; " gentlemen, you may un- 
 derstand banking and insurance, but that is not be- 
 ing practical men in a more extended sense. You 
 ought to move away from Boston, come and fix 
 yourselves at Cambridge ; plunge deeply into books ; 
 study the human heart ; learn the wants and ex- 
 pectations, the opinions and feelings of the world, 
 from the volumes of those, who have speculated 
 most deeply upon it, and then you will be qualified 
 to send down your orders to the clerks, and the 
 business will go on well." 
 
 You next argue against the convenience and ex- 
 pediency of vesting the power of election, of fixing 
 salaries, and assigning duties to the actual incum- 
 bents. But, in the first place, no measure, in re- 
 ference to either, can pass without the approbation 
 of the overseers ; a check, to which you have not 
 thought proper, I believe, so much as once to al- 
 lude. You not only charge the memorialists with 
 seeking " the exclusive government" of the college ; 
 
97 
 
 but in detailing the fancied evils of having the cor- 
 poration composed of residents, you speak, as if 
 their acts were final. It is as if a politician, argu- 
 ing against entrusting certain powers to congress, 
 should insist on considering the house of represen- 
 tatives as a sole independent body, and wholly shut 
 his eyes on the negative of the senate. Moreover, 
 the evil, in one respect, according to you, already 
 exists, on the present system. You say that, as to 
 the elections of tutors and the assignment of all 
 the duties of instruction and government, the resi- 
 dents, even at present, have this power ; — that the 
 corporation at present generally conform to their 
 recommendations. — In this there is too much truth. 
 The corporation, themselves of necessity ignorant 
 of the details of college, several of them, from never 
 having been instructers, being in want of that tact, 
 which nothing but experience ever gave or ever 
 will give, are obliged to come to the immediate 
 government, to know what laws they shall pass, on 
 many very important subjects. As the president 
 is the only member of the immediate government 
 in the corporation, the effect of this state of things 
 is to put almost the whole control of the college 
 into his hands, and instead of having the college 
 administered by six residents, it is administered by 
 one. — When you say that the president always has 
 represented the opinions and views of the immedi- 
 ate government to the corporation ; you advance, 
 (to say the least) what you could not by any possi- 
 bility know. 
 
 You ask also whether the non-resident profess- 
 ors " will be more contented, more disposed to 
 submit to the government of their own associates, 
 in the election of whom they have no voice, than 
 they now are to a body of disinterested indepen- 
 13 
 
98 
 
 dent men, who cannot even be suspected of personal 
 views ?" This is what is called making the most 
 of a thing. The non-resident professors are, with 
 two exceptions, medical or law professors, who 
 scarce come in contact with college ; and as far as 
 their own interest is concerned, I do conscientious- 
 ly believe, that Dr Warren, and Dr Gorham, and 
 Chief Justice Parker, would as lief submit the college 
 to the government of a resident as of a non-resident 
 corporation. I say, as far as their own interest as 
 professors is concerned. You speak of the non- 
 resident corporation as a body of " disinterested, 
 independent men, who cannot even be suspected 
 of personal views." — Why not ? Whence this sov- 
 ereign virtue of non-residence ? What is there to 
 secure gentlemen living in Boston, from the reach 
 of the same suspicions, as would affect other men, 
 in the administration of a patronage of twenty or 
 thirty thousand dollars a year ? You reply, per- 
 haps, they are not themselves candidates. — For the 
 liighest and most lucrative office in their gift, they 
 are ; and the history of the college, for the greater 
 part of the last century, shows that they are not on- 
 ly candidates, but have been the successful candi- 
 dates. In 1724, two members of the corporation 
 were successively chosen presidents, " though the 
 voice of the people, says Dr Eliot, cried aloud in 
 favor of another candidate ;" and, in 1773, three 
 members of the corporation were successively cho- 
 sen to the president's chair, in like defiance, (accord- 
 ing to the same candid historian,) of the public 
 sense of decorum. From the practice, which has 
 long prevailed, of having two clergymen in the cor- 
 poration, it is obvious that the most prominent 
 candidates for the president's office will be in 
 that body, as long as this practice is kept up. 
 
99 
 
 I see no plausible ground, therefore, on which you 
 speak of a non-resident corporation as necessarily 
 a body of disinterested, independent men, who can- 
 not even be suspected of personal views. Even as 
 to the other offices, for which the members of a 
 non-resident corporation are not likely themselves 
 to be candidates, they are not, on this account, be- 
 yond the possible reach of interested motives. 
 They are men : they have human hearts, human 
 weaknesses ; they have relatives and friends. — 
 You have the kindness, after setting forth the scene 
 of corruption, which would ensue from making the 
 corporation consist of a sworn Professor of Divinity, 
 of moral philosophy, of mathematics, &c. — the hun- 
 gry scramble for preferable offices, the unrighteous 
 diversion of the college funds into extravagant ad- 
 ditions to their own salaries, the cabals and in- 
 trigues ; — to say that you acknowledge these things 
 would not happen, under the administration of the 
 present instructers, but only under that of the in- 
 structed, who might hereafter succeed them. For 
 one, I cannot find it in my heart to be grateful for a 
 saving clause like this ; nor will I, (though I well 
 might,) imitate you in its application. I will rather 
 say, that I heartily allow the present non-resident 
 gentlemen of the corporation to be men of disinter- 
 ested independent character, and I have no doubt 
 they will transmit their places, in any event, to men 
 honorable like themselves. But I cannot admit 
 that their honor is by any necessity to be more un- 
 suspected than that of any other men, in stations 
 equally high and confidential. I cannot admit that 
 the security against corruption is to be sought 
 merely in the impossibility of committing it; that 
 conscience, and sense of character, and the obliga- 
 tion of an oath are to pass for nothing ; and that the 
 
100 
 
 resident instructers, if they were clothed with the 
 powers of the corporation, would be immediately 
 open to the suspicion of abusing them all, for their 
 own base emolument. I believe it would be just 
 as reasonable to say, that if a resident officer were 
 the Treasurer, he would run off with the college 
 funds. — Nothing is to prevent him, but sense of 
 character and the power of principle ; and why 
 should it not be assumed as a maxim, that men of 
 the standing, which is requisite to the offices and 
 government here, will always be under that same 
 moral influence ? Or if you will not allow that ; if 
 you maintain that, in the natural operation of things, 
 the members of a resident corporation would en- 
 gage in a profligate scramble for better places and 
 higher salaries ; then I would fain know what ex- 
 empts the members of a non-resident corporation 
 from the same suspicion of grasping themselves at 
 the office within their reach, and with regard to 
 those which are not, securing them for brothers, 
 sons, cousins, and nephews ? 
 
 You have said much of the little probability that 
 a resident corporation would enjoy that public 
 " confidence, which is necessary to the success of 
 such an institution as Harvard university." You 
 mention the superior advantage of men, who pos- 
 sess " a wider and more commanding influence in 
 the government," than the instructers here can be 
 supposed to possess. And you maintain that to 
 adopt the views of the memorialists would be "to 
 surrender all the college concerns to persons, whose 
 interests can never be precisely the same as those 
 of the public, and may sometimes be directly op- 
 posed to them." Permit me to say, that I have 
 dwelt upon these and several similar intimations in 
 your pamphlet, with much regret, and with no little 
 
101 
 
 » 
 
 embarrassment as to the sort of answer, which ought 
 to be made. It is certainly no secret, that the pre- 
 sent mode, in which the corporation is composed, 
 viz. that of having three of its five Fellows select- 
 ed from the leading civil characters, has had the 
 effect of committing the college on the score of 
 party politics, rendering it an object of suspicion 
 and odium to a majority of the community, and 
 drawing down upon it repeated and heavy acts of 
 public dislike. I am willing to allow the most that 
 can be claimed, that all this has been an unavoid- 
 able consequence of the deplorable state of political 
 excitement. It may not have been possible for the 
 members of the opposite parties, to meet on the 
 benches of the corporation with that harmony, 
 which is necessary to transact business. The re- 
 volution effected by the corporation of 1810 in the 
 board of Overseers, the oldest literary body in the 
 country, which had existed one hundred and sixty 
 eight years, may have been equally necessary, to 
 prevent a clashing between the corporation and the 
 Overseers. But if these are the necessary conse- 
 quences of having a non-resident corporation ; if 
 these are the unavoidable effects of putting the col- 
 lege into the hands of gentlemen, who, by their 
 station in society, have led the ranks in the politic- 
 al warfare, what stronger argument of expediency 
 can exist, for a different organization ; an organiza- 
 tion, which should bring into the corporation, a class 
 of men, necessarily in a good degree removed from 
 political controversy, and whose administration 
 could not have the effect of identifying the college 
 with any party ? 
 
 But it is more than time that this letter should 
 be brought to a close. I can of course be no com- 
 petent judge of the opinion, which the public will 
 
LIBRARY. . OF.,,CONGF|ESS ^ 
 
 029 892 557 6 
 
 102 
 
 form of the merits of the controversy ; but I have 
 no fears that the final decision will not be that, 
 which truth and reason shall dictate. I join with 
 you in indulging the hope that " the tendency of 
 the discussion will be to make the affairs of the 
 college better known to the public." I believe it 
 is possible for the institution to become again the 
 favorite, as it is the first born child of the common- 
 wealth. By care bestowed in lessening the ex- 
 pense of an education within its walls, in adapting 
 the system to the practical spirit of our country and 
 age, and in bringing back the college to the pater- 
 nal roof of the commonwealth, I believe it can be 
 made to take deep root in the hearts of the people. 
 In no other soil will it ever flourish. 
 
 Asking your candid indulgence for any error, in- 
 to which I may have fallen in the hasty preparation 
 of this letter, especially for any undue warmth, into 
 which the discussion may have betrayed me, I re- 
 main, with high respect, 
 
 Your faithful, humble servant, 
 
 EDWARD EVERETT. 
 
 Cambridge, Sept. 25, 1824. 
 

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