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Friday,]

MARVIN — KNOWLTON.

(July 15th.

Vacancies Filled.

not affect any person who has the right to vote The PRESIDENT appointed Mr. Knowlton, at present, nor any one who might become enof Worcester, to fill the vacancy in the Commit- titled to the right of suffrage previous to that tee, on Reporting and Printing the Debates and time. All young men, who are eighteen years Proceedings of the Convention, occasioned by the of age, and upwards, would have three years in death of the Hon. F. R. Gourgas.

which to learn to read ; and, as we have the Also, Mr. Bird, of Walpole, to fill the vacancy means of education provided for all who choose in the Committee, on the Preservation of the to avail themselves of it-both children and Records.

adults—there is no reason why every man in the

Commonwealth, in the course of three years, Orders of the Day.

should not be able to read the English language. On motion of Mr. BROWN, of Medway, the That was the object I had in view, and it apConvention proceeded to the consideration of the peared to me to be an object highly worthy of Orders of the Day.

our attention, if, by any possibility, it could be

reached. Reconsideration.

Some few years ago, it was recommended that The first subject on the Orders of the Day, all persons should be compelled to send their was the motion of Mr. Marvin, of Winchendon, children to school. I suppose, however, that that to reconsider the vote by which the Report of could not be done. Indeed, I suppose it never the Committee on the Qualification of Voters, would be done—at least, I hope not, for I dislike was accepted.

compulsion in this matter; but if a provision of Mr. MARVIN, of Winchendon. I ask the that kind was made, there would be an induce. indulgence of the Convention for a few minutes, ment held out to every man to learn to read. to explain the design which I had in offering this I will not dwell upon the subject longer, except order. The order, as will be seen, requires that to say that nothing would contribute more to all persons who may attain to the right of voting the honor of Massachusetts, than that every man in the year 1856, shall be able to read the Con- who was a voter was able to read; and secondly, stitution of this Commonwealth, printed in the that having such a provision in our Constitution, English language ; and, as the object which I it would make every man who might come to our had in view in offering it, has been much mis- State from other countries, truly American. I do understood, I have desired the privilege of briefly not mean by this, that we should do anything stating what that object was. This is the reason to prevent foreigners from coming amongst us ; why I made the motion to reconsider.

I hope that every foreigner who comes into the From conversations which I have had with va- country will be welcomed by us with cordialityrious gentlemen, I believe that there is very little that they will feel that they are at home here, and probability of this order being passed, and I sup- that they will learn our customs, and support and pose, probably, the chief reason is, that it is too honor our institutions. far in advance of the times. I merely wish to Having made this explanation, and understandexplain it.

ing that there is no hope of this order being The object, as will be seen, is so to provide in adopted, I will now move to lay the motion to the Constitution, that from and after the year reconsider on the table. 1856, all persons admitted to vote for any officer The motion was accordingly laid upon the table. in the State of Massachusetts, shall be able to read the Constitution of the Commonwealth, in

Harvard College. the English language ; because, I think if they On motion by Mr. KNOWLTON, of Worcescan read that, they can read almost anything else.

ter, the Orders of the Day were laid upon the The design is not, as many gentlemen suppose, to

table, and the Convention resolved itself into restrict the right of suffrage at all; and the order

COMMITTEE OF THE WHOLE, was submitted to the Committee for the Encouragement of Literature, because the object of it On the Report of the Committee on Harvard Colwas the promotion of education. It did not, by lege, Mr. Morton, of Taunton, in the chair. any means, look to the restriction of the right of The resolution reported by the Committee, was suffrage. I will go as far as any gentleman, in read, as follows: extending that right; but it seems to me, in

Resolved, That the Constitution ought to be adopting this order, we put into operation a

amended by adding to chapter 5, section 1, the strong motive to induce every person, and es- following article, to wit:pecially every man, to learn to read. It would The legislature shall forever have full power

Friday,]

KNOWLTON.

[July 15th.

and authority, as may be judged needful for the and what is not law, upon a question of so much advancement of learning, to grant any farther importance as this. But I understand, Sir, that powers to, or alter, limit, annul, or restrain, any of

our laws and the laws of England are coincident the powers now vested in the President and fellows of Harvard College : provided, the obliga- upon this subject; and that the general principle is tion of contracts shall not be impaired; and shall

that the founder of the college—be he the king, have the like power and authority over all cor- an individual, or the state—is the one who first porate franchises hereafter granted for the pur- erects and endows it; and that all subsequent poses of education in this Commonwealth.

donors stand to it in the relation of benefactors. Mr. KNOWLTON, of Worcester. Mr. Chair- | It matters not how great or how numerous may man. It would have been more agreeable to me, be their donations; they cannot dispossess the and more just to the cause, if the duty of sustain- founder of his rights as such. He may transfer ing this Report had been ned to one of lar them to another ; but he cannot rightfully be experience in deliberative assemblies. But trust-deprived of them ; and if he does not part with ing to the forbearance of the Convention, I shall them, they descend to his heirs or successors. present some of the considerations which seem to What, then, are the rights of the founder? If me to be pertinent to the subject. My colleagues he places the property in the hands of trustees, he of the Committee will be able to supply my parts with none of his rights, but may recall the deficiencies.

trust. But if he places it in the charge of a Harvard College, Sir, is not alone a question of corporation, the right of control is then vested in to-day; but in many of its phases it is a question the corporation; and nothing remains to the of the past and of the future. It covers a period founder but the right of visitation; that is, a sort of more than two centuries of our history; start- of judicial authority over the corporation to call ing from a point almost back to that in which the the corporators to account for any perversion of germ of our civilization, now so largely devel- the funds, or any divergence of the corporation oped, was perilled in a bleak winter, upon a des- from the aim originally given it. This great olate coast. The college was, undoubtedly, right of visitation exists of necessity. If the among the ideas which the colonists brought with founder fails to provide for its exercise, then the them, for its foundation was laid only sixteen law provides it for him. If Harvard, as some years after the landing at Plymouth. Something assert, was the founder of the college, and failed of history, as well as of legal and moral right, to provide for a visitor, or if the right was parted must therefore enter into the discussion of this with or lost, then the general court is in full posresolution.

session of it. But if the Commonwealth was the The rights of the Commonwealth in the col-founder, then the State, having a self-perpetuating lege, and the power of this Convention to inter- existence, retains the right forever unbroken. fere with its organization, depend largely upon Now, Mr. Chairman, what are the facts which certain facts in history. Those facts must arrange history teaches on this subject ? themselves around one or two points: first, who At a session of the general court held in Boswas the founder of the college; and second, what ton in September, 1636, as the record says,

" the were the rights of the founder, and were they court voted, for the erecting of a public school or ever transferred or surrendered ?

college, at Cambridge, £400, to be paid out of the These two questions involve two theories, the country treasury.” has been found convenpractical results of which are wide asunder. ient, in later times, to deny that this sum was

If John Harvard was the founder of the col- ever paid; but the denial will avail nothing lege, by his own will or the will of the govern- against the fact of the grant; and besides, the ment, and his rights as founder were never trans- treasurer of the college, in a recent publication, ferred or surrendered, then the power of this places this grant of the general court of 1636 at Convention to touch the organization of the col- the head of the list of donations to the college. lege, may perhaps be questioned. But if, as I In 1637, Nathaniel Eaton was chosen professor believe, the Commonwealth was the founder, and of the school, and was charged with the managehas never parted with its rights as founder, then ment of the donations, or funds, or

“ college the whole subject is clearly within the power of stock," as the properties of the college were desigthis Convention. We may do what we please, nated in those times. and as we please, with the college, provided we In the following year, 1638, the Rev. John do not subvert or contravene the original pur- | Harvard, of Charlestown, died, and made by will poses of its foundation.

a donation to the college of £779 in money, and It does not become me, Mr. Chairman, in this 320 volumes of books. The general court, the Convention, or elsewhere, to assert what is law same year, in gratitude for this princely be nefacFriday,]

KNOWLTON.

(July 15th.

tion,- for such it was in those times, and in the tion, founded upon the Christian doctrine of the then condition of the infant colony,-ordered that equality of all men, in the state as in the church. the name of Harvard should be given to the He recognized, in its full force, the democratic idea college. At that time, there was no corporation of popular sovereignty, and of the capacity of the in existence. None was then created. It was people to make a perpetual demonstration of the emphatically the college of the general court. Christian rule that the powers of government are The court had established the rights of the Com- | in the people themselves, and not in the institutions monwealth as founder by making the first dona- of government which they themselves may organtion. It appointed the first officers. It directed ize. Acting upon this idea, he placed his munificent where and how the college should be built. It donation in the hands of the general court, with took John Harvard's donation, and, to perpet- no injunction, but to TAKE IT—USE IT ; in the conuate his memory, it gave the college his name. cise explicit language of Puritan legislation, But nowhere, and at no time, did it decree that “For the advancement and education of youth in he should be held as the founder of the college, all manner of good literature, arts, and sciences.” or that his heirs or successors should have the He did not ask that a self-perpetuating corporaordinary visitatorial powers that attach to the tion should be established, to watch over his dofounders of such institutions. On the contrary, nation; but he trusted to that strong sense of four years afterwards, in 1642, the general court right that pervades the broad bosom of the peoproceeded to establish-not a corporation-but a ple, in full assurance that his confidence would Board of Overseers, with power to manage the never be found misplaced. He no more disfunds, and make all necessary laws for the gov- trusted the future than he distrusted the Ruler of ernment of the college; and, at the same time, the universe. He believed that the living ages, accountable in all things to the general court. as they should advance in perpetual succession,

Such was the character and condition of the would be just to the ages gone by; and, while he college for the first fourteen years of its exist- had faith in their integrity, he believed in their ence-from 1636 to 1650; and during those four- right to adapt their institutions to their existing teen years there was no act of the government condition. that declared Harvard the founder of the college, I come now, Mr. Chairman, to the consideraor even indicated an intention of the court to tion of the second period in the existence of the recognize in him, his heirs or successors, the well-college-that of its charter, in 1650. The genestablished rights of the founder of such an insti- eral court then gave it form, substance, and existtution. It is not to be supposed that there was ence, as a corporate body. Did the general court any accidental omission to make such recognition; give it the character of a close corporation ? or for the colonists, be it remembered, had but re- was there an essential reservation in the charter ? cently left the mother country, where the whole By the charter, the corporation was to consist of subject of college law was thoroughly understood, seven persons, with power to receive and manage and in whose colleges many of them had been the college funds; to fill vacancies caused in their educated.

body by death or resignation; to choose college Harvard himself was a remarkable man. He officers or servants; and, generally, to make all was an educated clergyman, comparatively afflu- necessary rules for the government and conduct ent, as money was then valued, and yet bestow- of the college. But there was an important resing his wealth in the full confidence of one gifted ervation in the charter. The counsel and consent with the power to anticipate the wants of the of the board of overseers, as established in 1642, advancing generations of men, and to foresee the were required, to give force and effect to the acts coming glories of the land on which he had of the corporation. That board is fully recogscarcely pressed his foot before he went to sleep nized, but was not established, by the charter. in its bosom. Yet nowhere, and at no time, did As its name implies, it was not an independent he express a desire to be considered as the founder body, but stood around the college to oversee and of the college, or to reserve to his heirs or succes- guard the rights of the Commonwealth in the sors the ordinary visitatorial power incident to a institution. Neither body alone was the governfounder.

ment; and conjointly their powers were not full He came up to the general court with no such powers. The corporation, with the consent of petty interrogatory upon his lips as, “What se- the overseers, had the power to fill vacancies in curity can you give me for my money?" No, its body, but it had not the power to create vaSir; he participated in the idea common to the cancies. It could, by the terms of the charter, colonists, that it was their mission to establish, choose its officers, and remove them ; but it could upon the new continent, a new order of civiliza- not, by the charter, remove one of its fellows, Friday,]

KNOWLTON.

(July 15th.

that power belonging to the founder in the exer- benefactors, in successive generations, from Harvcise of his visitatorial or judicial authority over ard to Bussey, and Lawrence, and Phillips. the college. The visitatorial right, as we have I have said that it was not an absolute corposeen, was never in John Harvard, or in any of ration. The act of 1642 established the board of his heirs or successors. It was originally in the overseers as the representatives of the general general court, as the founder; it was not trans- court. In the college charter granted in 1650, ferred or surrendered by the court when it grant- | the power of the corporation is qualified by an ed the charter, in 1650 ; it has never, as I believe, explicit recognition of the board of overseers, in been transferred since that day; and being in these words :the law-making branch of the government, in the outset, it has continued so through the suc

"And the said seven persons, or the greater

number of them, procuring the presence of the cessive generations of men that have held in their

Overseers of the college, and by their counsel and hands the legislative power of the Commonwealth

consent shall have power, and are hereby authorduring the two centuries that have passed ; and ized, at any time or times, to elect a new Presimust, of necessity, continue there through all dent, Fellows, or Treasurer, so often, and from time, unless specially and explicitly transferred time to time, as any of the said persons shall die, by the people, or their authorized representa

or be removed," &c. tives.

Through the whole original charter, and in its The charter of the college was subsequently subsequent modifications—none of which were amended in 1657 and in 1672, but was in no way material—the counsel and consent of the overmaterially changed. Other changes were subse- seers were made essential to render valid the acts quently made, and with like effect.

of the corporation, with the single exception of In 1691, the provincial government was estab- receiving and investing of funds, or dealing in lished by William and Mary, in place of the col- real estate for the use and benefit of the college. onial government; and in 1707, the general court

The power of the overseers was not a mere confirmed the college in all the rights it had by advisory power. Their consent was necessary to the charter of 1650. That confirmation was

most of the acts of the corporation. They had given in these words :

the power to render null the elections and ap.

pointments of the corporation. They and the And inasmuch as the first foundation and establishment of that house, (Harvard College,) corporation had the power to dismiss the officers and the government thereof, had its original from and servants of the college ; but the two boards, an act of the general court, made and passed in the neither separately nor conjointly, had the power year 1650, which has not been repealed or nulled, to dismiss a member of the corporation. That power the President and Fellows of the said college are was in the general court, as the visitor on in its directed, from time to time, to regulate themselves foundation ; it was exercised by the court, and according to the rules of the constitution by the has never been given up; and cannot be given said act prescribed, and to exercise the powers and authority thereby granted for the government up unless the present generation or future geneof that house, and the support thereof."

rations shall be false to the great trusts confided

to them by the founders of the CommonFour charters were sent to England, but were wealth. disallowed by the crown, because the general Whatever power the Commonwealth had over court would not surrender its control of the col- | the college by the charter granted in 1650, it has lege to the royal authority. This was after fully and completely at this day. It is true that the colonial charter had been recalled by the in the transitions of political power, consequent crown.

upon the English Revolution of 1688, the result By the charter of 1650, thus revived and con- of which, so far as this Commonwealth was confirmed by the general court in 1707, the college cerned, was the substitution of the provincial for was made not an absolute but a qualified corpo- the colonial government–it is true, that the govration. The president and fellows had not then, ernment was unable, at times, to exercise its rights, and have never had, any vested rights which were through the overseers ; but at no time did it lose distinctively their own. All their rights are those rights; and to whatever extent it might have rights of trust; and those rights were placed in been stayed in the execution of them, they were their hands originally by the general court, as the fully revived and confirmed when the crown founder of the college, with the explicit provision tacitly gave its assent to the act of the general that they should hold and manage, for specific court, in 1707, which reaffirmed, in all its original purposes, the properties given to the college by force and effect, the college charter of 1650. the founder, and by its long and brilliant array of Now, if John Harvard was the founder of Friday,]

KNOWLTON

[July 15th.

the college, by his own will, or was made founder herein. The Deputies have passed this, and deby the act of the general court, ;-as I understand | sire our honored Magistrates' consent thereto. the college at this time maintains,—then the gen

1654.

WILLIAM TORREY, Clerk.

Consented hereunto by the Magistrates,eral court, from that time, had no visitatorial

RICHARD BELLINGHAM, Governor.” power in the premises; and, of course, it could exercise no such power. But what was the fact ? In this matter, the overseers did not act from By no charter, act, resolve, or decree of the gen- any rights of their own, but under powers exeral court, did the court expressly, or impliedly, pressly delegated to them by the general court; transfer, surrender, or part with its original visi- and for their exercise they were required to make tatorial or judicial power over the college. In a return to the court. This resignation of Duncompliment to its first private benefactor, it gave ster's implied something more than a voluntary the college the name of Harvard ; and that was retiring from the college. He had fallen under all it gave. On the contrary, the court went on censure for some heretical notions on the subject in the execution of its duty as founder and visi- of baptism; and therefore the overseers, acting tor of the college, the same as it would have done for the court, said to him, that “ unless he would if no such man as Harvard had ever existed, or give satisfaction, according to the rules of Christ, no such fund had ever been given to the college. they must be constrained to furnish the college Contemporaneous construction shows the char- with another president.” That, is he must be acter of the charter.

dismissed from the presidency, and another apThe college charter, let it be borne in mind, pointed in his place. was granted in 1650. In 1654—four years only In the same year in which Dunster resigned after the establishment of the corporation-its the presidency of the college into the hands of the first president, the learned and pious Henry Dun- court-four years after the charter was granted ster, resigned his place as president of the college —the general court exercised, in a remarkable and of the corporation. To whom did he resign? manner, its visitatorial power over the college. Not to the corporation, or the overseers, who had The records say that the court, “on perusal of the power to fill the vacancy, but to the general the return of the committee appointed to consider court, in a letter addressed, in his own language : of the college business, order that the stock ap“ To the worshippful and honored Richard Bel- pertaining to the college should be committed to lingham, Esq., Governor of the Massachusetts the care and trust of the overseers of said college.” Colony, with the rest of the honored Assistants By the law of 1642, the funds were placed in and Deputies in the General Court at Boston, the hands of the overseers; by the charter, they now assembled."

were taken from the overseers and confided to In the conclusion of his letter, he says: the corporation; and then, four years afterwards, “ Therefore I here resign up the place wherein as I have shown, the corporation was dispossessed hitherto I have labored with all my heart, (bless- of the funds, which were again placed in the ed be the Lord who gave it,) SERVING YOU AND keeping of the overseers. A member of the corYOURS. And henceforth, (that you in the interim poration, writing upon this transaction, nearly a may be provided,) I shall be willing to do the century afterward, said :best I can for some weeks or months to continue the work, acting according to the orders pre

“ At first view this may seem an extraordinary scribed to us,” &c.

act in the court, who, by a solemn grant in the Upon receiving Dunster's resignation, June

charter of '50, had vested the property of that

stock in the said corporation. But there is really 10th, 1654, the general court passed this order :- nothing extraordinary in this act; for, as visitors

“In answer to a writing presented to this Court of their own college, the court had the right at by Mr. Henry Dunster, wherein among other all times, to see that this stock was well taken things he is pleased to make a resignation of his

care of.”

“ This was an act that, in common place as president, this Court doth order : That it law, the visitors of a college had a right to do.” shall be LEFT to the care and discretion of the overseers of the college to make provision, in case he Twenty years afterwards, in 1674, the general persists in his resolution more than one month, and court again exercised its visitatorial right over the inform the overseers, for some meet person to carry an end that work for the present, and also college. The president, the corporation, the overto act in whatever necessity shall call for until the

seers, and the students, were summoned before next sessions of this court, when we shall be bet

the court; and, after an examination into the conter enabled to settle what will be needful in all dition of the college, the court voted :respects with reference to the college. And that the overseers will be pleased to make return to “ That if the college be found in the same lanthis court, at that time, of what they shall do guishing condition at the next session, the presi

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