Friday,] MARVIN KNOWLTON. [July 15th. Vacancies Filled. The PRESIDENT appointed Mr. Knowlton, of Worcester, to fill the vacancy in the Committee, on Reporting and Printing the Debates and Proceedings of the Convention, occasioned by the death of the Hon. F. R. Gourgas. Also, Mr. Bird, of Walpole, to fill the vacancy in the Committee, on the Preservation of the Records. Orders of the Day. On motion of Mr. BROWN, of Medway, the Convention proceeded to the consideration of the Orders of the Day. Reconsideration. The first subject on the Orders of the Day, was the motion of Mr. Marvin, of Winchendon, to reconsider the vote by which the Report of the Committee on the Qualification of Voters, was accepted. Mr. MARVIN, of Winchendon. I ask the indulgence of the Convention for a few minutes, to explain the design which I had in offering this order. The order, as will be seen, requires that all persons who may attain to the right of voting in the year 1856, shall be able to read the Constitution of this Commonwealth, printed in the English language; and, as the object which I had in view in offering it, has been much misunderstood, I have desired the privilege of briefly stating what that object was. This is the reason why I made the motion to reconsider. From conversations which I have had with various gentlemen, I believe that there is very little probability of this order being passed, and I suppose, probably, the chief reason is, that it is too far in advance of the times. I merely wish to explain it. The object, as will be seen, is so to provide in the Constitution, that from and after the year 1856, all persons admitted to vote for any officer in the State of Massachusetts, shall be able to read the Constitution of the Commonwealth, in the English language; because, I think if they can read that, they can read almost anything else. The design is not, as many gentlemen suppose, to restrict the right of suffrage at all; and the order was submitted to the Committee for the Encouragement of Literature, because the object of it was the promotion of education. It did not, by any means, look to the restriction of the right of suffrage. I will go as far as any gentleman, in extending that right; but it seems to me, in adopting this order, we put into operation a strong motive to induce every person, and especially every man, to learn to read. It would not affect any person who has the right to vote at present, nor any one who might become entitled to the right of suffrage previous to that time. All young men, who are eighteen years of age, and upwards, would have three years in which to learn to read; and, as we have the means of education provided for all who choose to avail themselves of it-both children and adults-there is no reason why every man in the Commonwealth, in the course of three years, should not be able to read the English language. That was the object I had in view, and it appeared to me to be an object highly worthy of our attention, if, by any possibility, it could be reached. Some few years ago, it was recommended that all persons should be compelled to send their children to school. I suppose, however, that that could not be done. Indeed, I suppose it never would be done at least, I hope not, for I dislike compulsion in this matter; but if a provision of that kind was made, there would be an inducement held out to every man to learn to read. I will not dwell upon the subject longer, except to say that nothing would contribute more to the honor of Massachusetts, than that every man who was a voter was able to read; and secondly, that having such a provision in our Constitution, it would make every man who might come to our State from other countries, truly American. I do not mean by this, that we should do anything to prevent foreigners from coming amongst us; I hope that every foreigner who comes into the country will be welcomed by us with cordiality— that they will feel that they are at home here, and that they will learn our customs, and support and honor our institutions. Having made this explanation, and understanding that there is no hope of this order being adopted, I will now move to lay the motion to reconsider on the table. The motion was accordingly laid upon the table. Harvard College. On motion by Mr. KNOWLTON, of Worcester, the Orders of the Day were laid upon the table, and the Convention resolved itself into COMMITTEE OF THE WHOLE, On the Report of the Committee on Harvard College, Mr. Morton, of Taunton, in the chair. The resolution reported by the Committee, was read, as follows: Resolved, That the Constitution ought to be amended by adding to chapter 5, section 1, the following article, to wit: The legislature shall forever have full power and authority, as may be judged needful for the advancement of learning, to grant any farther powers to, or alter, limit, annul, or restrain, any of the powers now vested in the President and Fellows of Harvard College: provided, the obligation of contracts shall not be impaired; and shall have the like power and authority over all corporate franchises hereafter granted for the purposes of education in this Commonwealth. Mr. KNOWLTON, of Worcester. Mr. Chairman. It would have been more agreeable to me, and more just to the cause, if the duty of sustaining this Report had been assigned to one of larger experience in deliberative assemblies. But trusting to the forbearance of the Convention, I shall present some of the considerations which seem to me to be pertinent to the subject. My colleagues of the Committee will be able to supply my deficiencies. Harvard College, Sir, is not alone a question of to-day; but in many of its phases it is a question of the past and of the future. It covers a period of more than two centuries of our history; starting from a point almost back to that in which the germ of our civilization, now so largely developed, was perilled in a bleak winter, upon a desolate coast. The college was, undoubtedly, among the ideas which the colonists brought with them, for its foundation was laid only sixteen years after the landing at Plymouth. Something of history, as well as of legal and moral right, must therefore enter into the discussion of this resolution. The rights of the Commonwealth in the college, and the power of this Convention to interfere with its organization, depend largely upon certain facts in history. Those facts must arrange themselves around one or two points: first, who was the founder of the college; and second, what were the rights of the founder, and were they ever transferred or surrendered? These two questions involve two theories, the practical results of which are wide asunder. If John Harvard was the founder of the college, by his own will or the will of the government, and his rights as founder were never transferred or surrendered, then the power of this Convention to touch the organization of the college, may perhaps be questioned. But if, as I believe, the Commonwealth was the founder, and has never parted with its rights as founder, then the whole subject is clearly within the power of this Convention. We may do what we please, and as we please, with the college, provided we do not subvert or contravene the original purposes of its foundation. It does not become me, Mr. Chairman, in this Convention, or elsewhere, to assert what is law [July 15th. and what is not law, upon a question of so much importance as this. But I understand, Sir, that our laws and the laws of England are coincident and that the general principle is upon this subject; that the founder of the college-be he the king, an individual, or the state-is the one who first erects and endows it; and that all subsequent donors stand to it in the relation of benefactors. It matters not how great or how numerous may be their donations; they cannot dispossess the founder of his rights as such. He may transfer them to another; but he cannot rightfully be deprived of them; and if he does not part with them, they descend to his heirs or successors. What, then, are the rights of the founder? If he places the property in the hands of trustees, he parts with none of his rights, but may recall the trust. But if he places it in the charge of a corporation, the right of control is then vested in the corporation; and nothing remains to the founder but the right of visitation; that is, a sort of judicial authority over the corporation to call the corporators to account for any perversion of the funds, or any divergence of the corporation from the aim originally given it. This great right of visitation exists of necessity. If the founder fails to provide for its exercise, then the law provides it for him. If Harvard, as some assert, was the founder of the college, and failed to provide for a visitor, or if the right was parted with or lost, then the general court is in full possession of it. But if the Commonwealth was the founder, then the State, having a self-perpetuating existence, retains the right forever unbroken. Now, Mr. Chairman, what are the facts which history teaches on this subject? At a session of the general court held in Boston in September, 1636, as the record says, "the court voted, for the erecting of a public school or college, at Cambridge, £400, to be paid out of the country treasury." It has been found convenient, in later times, to deny that this sum was ever paid; but the denial will avail nothing against the fact of the grant; and besides, the treasurer of the college, in a recent publication, places this grant of the general court of 1636 at the head of the list of donations to the college. In 1637, Nathaniel Eaton was chosen professor of the school, and was charged with the management of the donations, or funds, or " college stock," as the properties of the college were designated in those times. In the following year, 1638, the Rev. John Harvard, of Charlestown, died, and made by will a donation to the college of £779 in money, and 320 volumes of books. The general court, the same year, in gratitude for this princely benefac Friday,] 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 the name of Harvard should be given to the college. At that time, there was no corporation in existence. None was then created. It was emphatically the college of the general court. The court had established the rights of the Commonwealth as founder by making the first donation. It appointed the first officers. It directed where and how the college should be built. It took John Harvard's donation, and, to perpetuate his memory, it gave the college his name. But nowhere, and at no time, did it decree that he should be held as the founder of the college, or that his heirs or successors should have the ordinary visitatorial powers that attach to the founders of such institutions. On the contrary, four years afterwards, in 1642, the general court proceeded to establish-not a corporation-but a Board of Overseers, with power to manage the funds, and make all necessary laws for the government of the college; and, at the same time, accountable in all things to the general court. equality of all men, in the state as in the church. He recognized, in its full force, the democratic idea of popular sovereignty, and of the capacity of the people to make a perpetual demonstration of the Christian rule that the powers of government are in the people themselves, and not in the institutions of government which they themselves may organize. Acting upon this idea, he placed his munificent donation in the hands of the general court, with no injunction, but to TAKE IT-USE IT; in the concise and explicit language of Puritan legislation, "For the advancement and education of youth in all manner of good literature, arts, and sciences." He did not ask that a self-perpetuating corporation should be established, to watch over his donation; but he trusted to that strong sense of right that pervades the broad bosom of the people, in full assurance that his confidence would never be found misplaced. He no more distrusted the future than he distrusted the Ruler of the universe. He believed that the living ages, as they should advance in perpetual succession, would be just to the ages gone by; and, while he had faith in their integrity, he believed in their right to adapt their institutions to their existing condition. I come now, Mr. Chairman, to the consideration of the second period in the existence of the Such was the character and condition of the college for the first fourteen years of its existence-from 1636 to 1650; and during those fourteen years there was no act of the government that declared Harvard the founder of the college, or even indicated an intention of the court to 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 institution. It is not to be supposed that there was any accidental omission to make such recognition; for the colonists, be it remembered, had but recently left the mother country, where the whole subject of college law was thoroughly understood, and in whose colleges many of them had been educated. Harvard himself was a remarkable man. He was an educated clergyman, comparatively affluent, as money was then valued, and yet bestowing his wealth in the full confidence of one gifted with the power to anticipate the wants of the advancing generations of men, and to foresee the coming glories of the land on which he had scarcely pressed his foot before he went to sleep in its bosom. Yet nowhere, and at no time, did he express a desire to be considered as the founder of the college, or to reserve to his heirs or successors the ordinary visitatorial power incident to a founder. He came up to the general court with no such petty interrogatory upon his lips as, "What security can you give me for my money?" No, Sir; he participated in the idea common to the colonists, that it was their mission to establish, upon the new continent, a new order of civiliza eral court then gave it form, substance, and existence, as a corporate body. Did the general court give it the character of a close corporation? or was there an essential reservation in the charter? By the charter, the corporation was to consist of seven persons, with power to receive and manage the college funds; to fill vacancies caused in their body by death or resignation; to choose college officers or servants; and, generally, to make all necessary rules for the government and conduct of the college. But there was an important reservation in the charter. The counsel and consent of the board of overseers, as established in 1642, were required, to give force and effect to the acts of the corporation. That board is fully recognized, but was not established, by the charter. As its name implies, it was not an independent body, but stood around the college to oversee and guard the rights of the Commonwealth in the institution. Neither body alone was the government; and conjointly their powers were not full powers. The corporation, with the consent of the overseers, had the power to fill vacancies in its body, but it had not the power to create vacancies. It could, by the terms of the charter, choose its officers, and remove them; but it could not, by the charter, remove one of its fellows, that power belonging to the founder in the exercise of his visitatorial or judicial authority over the college. The visitatorial right, as we have seen, was never in John Harvard, or in any of his heirs or successors. It was originally in the general court, as the founder; it was not transferred or surrendered by the court when it granted the charter, in 1650; it has never, as I believe, been transferred since that day; and being in the law-making branch of the government, in the outset, it has continued so through the successive generations of men that have held in their hands the legislative power of the Commonwealth during the two centuries that have passed; and must, of necessity, continue there through all time, unless specially and explicitly transferred by the people, or their authorized representatives. The charter of the college was subsequently amended in 1657 and in 1672, but was in no way materially changed. Other changes were subsequently made, and with like effect. In 1691, the provincial government was established by William and Mary, in place of the colonial government; and in 1707, the general court confirmed the college in all the rights it had by the charter of 1650. That confirmation was given in these words : "And inasmuch as the first foundation and establishment of that house, (Harvard College,) and the government thereof, had its original from an act of the general court, made and passed in the year 1650, which has not been repealed or nulled, the President and Fellows of the said college are directed, from time to time, to regulate themselves according to the rules of the constitution by the said act prescribed, and to exercise the powers and authority thereby granted for the government of that house, and the support thereof." Four charters were sent to England, but were disallowed by the crown, because the general court would not surrender its control of the college to the royal authority. This was after the colonial charter had been recalled by the crown. By the charter of 1650, thus revived and confirmed by the general court in 1707, the college was made not an absolute but a qualified corporation. The president and fellows had not then, and have never had, any vested rights which were distinctively their own. All their rights are rights of trust; and those rights were placed in their hands originally by the general court, as the founder of the college, with the explicit provision that they should hold and manage, for specific purposes, the properties given to the college by the founder, and by its long and brilliant array of [July 15th. benefactors, in successive generations, from Haryard to Bussey, and Lawrence, and Phillips. I have said that it was not an absolute corporation. The act of 1642 established the board of overseers as the representatives of the general court. In the college charter granted in 1650, the power of the corporation is qualified by an explicit recognition of the board of overseers, in these words: "And the said seven persons, or the greater number of them, procuring the presence of the Overseers of the college, and by their counsel and consent shall have power, and are hereby authorized, at any time or times, to elect a new President, Fellows, or Treasurer, so often, and from time to time, as any of the said persons shall die, or be removed," &c. Through the whole original charter, and in its subsequent modifications-none of which were material-the counsel and consent of the overseers were made essential to render valid the acts of the corporation, with the single exception of receiving and investing of funds, or dealing in real estate for the use and benefit of the college. The power of the overseers was not a mere advisory power. Their consent was necessary to most of the acts of the corporation. They had the power to render null the elections and ap. pointments of the corporation. They and the corporation had the power to dismiss the officers and servants of the college; but the two boards, neither separately nor conjointly, had the power to dismiss a member of the corporation. That power was in the general court, as the visitor on in its foundation; it was exercised by the court, and has never been given up; and cannot be given up unless the present generation or future generations shall be false to the great trusts confided to them by the founders of the Commonwealth. Whatever power the Commonwealth had over the college by the charter granted in 1650, it has fully and completely at this day. It is true that in the transitions of political power, consequent upon the English Revolution of 1688, the result of which, so far as this Commonwealth was concerned, was the substitution of the provincial for the colonial government-it is true, that the government was unable, at times, to exercise its rights, through the overseers; but at no time did it lose those rights; and to whatever extent it might have been stayed in the execution of them, they were fully revived and confirmed when the crown tacitly gave its assent to the act of the general court, in 1707, which reaffirmed, in all its original force and effect, the college charter of 1650. Now, if John Harvard was the founder of the college, by his own will, or was made founder by the act of the general court,-as I understand the college at this time maintains, then the general court, from that time, had no visitatorial power in the premises; and, of course, it could exercise no such power. But what was the fact? By no charter, act, resolve, or decree of the general court, did the court expressly, or impliedly, transfer, surrender, or part with its original visitatorial or judicial power over the college. In compliment to its first private benefactor, it gave the college the name of Harvard; and that was all it gave. On the contrary, the court went on in the execution of its duty as founder and visitor of the college, the same as it would have done if no such man as Harvard had ever existed, or no such fund had ever been given to the college. Contemporaneous construction shows the character of the charter. The college charter, let it be borne in mind, was granted in 1650. In 1654-four years only after the establishment of the corporation-its first president, the learned and pious Henry Dunster, resigned his place as president of the college and of the corporation. To whom did he resign? Not to the corporation, or the overseers, who had the power to fill the vacancy, but to the general court, in a letter addressed, in his own language: "To the worshippful and honored Richard Bellingham, Esq., Governor of the Massachusetts Colony, with the rest of the honored Assistants and Deputies in the General Court at Boston, now assembled." In the conclusion of his letter, he says:"Therefore I here resign up the place wherein hitherto I have labored with all my heart, (blessed be the Lord who gave it,) SERVING YOU AND YOURS. And henceforth, (that you in the interim may be provided,) I shall be willing to do the best I can for some weeks or months to continue the work, acting according to the orders prescribed to us," &c. Upon receiving Dunster's resignation, June 10th, 1654, the general court passed this order : "In answer to a writing presented to this Court by Mr. Henry Dunster, wherein among other things he is pleased to make a resignation of his place as president, this Court doth order: That it shall be LEFT to the care and discretion of the overseers of the college to make provision, in case he persists in his resolution more than one month, and inform the overseers, for some meet person to carry an end that work for the present, and also to act in whatever necessity shall call for until the next sessions of this court, when we shall be better enabled to settle what will be needful in all respects with reference to the college. And that the overseers will be pleased to make return to this court, at that time, of what they shall do [July 15th. herein. The Deputies have passed this, and desire our honored Magistrates' consent thereto. 1654. WILLIAM TORREY, Clerk. Consented hereunto by the Magistrates, RICHARD BELLINGHAM, Governor.” In this matter, the overseers did not act from any rights of their own, but under powers expressly delegated to them by the general court; and for their exercise they were required to make a return to the court. This resignation of Dunster's implied something more than a voluntary retiring from the college. He had fallen under censure for some heretical notions on the subject of baptism; and therefore the overseers, acting for the court, said to him, that "unless he would give satisfaction, according to the rules of Christ, they must be constrained to furnish the college with another president." That, is he must be dismissed from the presidency, and another appointed in his place. In the same year in which Dunster resigned the presidency of the college into the hands of the court-four years after the charter was granted the general court exercised, in a remarkable manner, its visitatorial power over the college. The records say that the court, "on perusal of the return of the committee appointed to consider of the college business, order that the stock appertaining to the college should be committed to the care and trust of the overseers of said college." By the law of 1642, the funds were placed in the hands of the overseers; by the charter, they were taken from the overseers and confided to the corporation; and then, four years afterwards, as I have shown, the corporation was dispossessed of the funds, which were again placed in the keeping of the overseers. A member of the corporation, writing upon this transaction, nearly a century afterward, said :— "At first view this may seem an extraordinary act in the court, who, by a solemn grant in the charter of '50, had vested the property of that stock in the said corporation. But there is really nothing extraordinary in this act; for, as visitors of their own college, the court had the right at all times, to see that this stock was well taken care of." "This was an act that, in common law, the visitors of a college had a right to do." Twenty years afterwards, in 1674, the general court again exercised its visitatorial right over the college. The president, the corporation, the overseers, and the students, were summoned before the court; and, after an examination into the condition of the college, the court voted : "That if the college be found in the same languishing condition at the next session, the presi |