[July 15th.

dent is concluded to be dismissed without farther | mand a more critical examination than such prehearing.”

cedents; and that at their first beginning, before

they acquire the force of laws, and in future times In 1693, Increase Mather was president of the will be pleaded as law, against the rights of the college. He was a man of ability and learning, general court itself.but exceedingly ambitious to figure in politics, as

The whole drift of Prince's appeal, was to the well as in religion and literature. He not only

effect that the power chose to retain his place as pastor of the North

removing a fellow of the Church in Boston, but he even left both his corporation, was not given by the charter to the church and the college, to go on a political mis- college government, but, in his own words, “ that sion to England. In view of his course,

the court had reserved it to themselves;" thus

the general court voted, that the president of Har- bearing his own testimony, in the most emphatic vard College, for the time being, shall reside there,

manner, to the visitatorial right and power of the as hath been the custom in times past;” and five general court as the founder of the college. years afterwards the court found it necessary to

The general court, in all the times of the colony declare again, that “the president should reside and province, showed its zeal in maintaining the at Cambridge.” But president Mather, still dis- foundation it had established, by paying, for a regarding the wishes of the government, the gen

long period of time, the salary of the president of

the college out of the country treasury; by nueral court, in 1701, dismissed him from the presidency, and placed the college in the charge of vice

merous payments to professors in the college; by president Willard; and in 1707, Willard having grants of land; and by donations of £1,500 in

1718, for the erection of Massachusetts Hall; of deceased, John Leverett was chosen to fill the place, and the general court, accepting and ap

£1,000 in 1726, for the president's house; of

£2,500 in 1762, for Hollis Hall; and of £4,100 proving of the appointment, voted to pay him a salary of £150 from the public treasury, " for his

in 1764, 1765, and 1766, for rebuilding Harvard

Hall; amounting in the aggregate, down to 1786, encouragement and support during his continuance in said office, he residing at Cambridge, and

as stated by the treasurer of the college, to over discharging the proper duties to a president be

$91,000. And he says that in those early days longing, and entirely devote himself to that ser

money had a value six or seven times greater than

its value in later times. vice.” In 1742, Nathan Prince, who had been a mem

But the Commonwealth's bounty to the college ber of the corporation for fourteen years, was

did not stop with grants of money. In 1640, it dismissed by a vote of the Board of Overseers.

gave the college the ferry across Charles river. He was

a vigorous and earnest writer, and How much income it afforded, I have not the although guilty of some dereliction in those rigor

means of knowing. But in 1785, after the charter ous times, he was not disqualified to bear witness

of the Charles River Bridge Company, the general to future times against an act of usurpation on the

court provided for an annual payment of £200 a part of the overseers. In his appeal to the public, year by that company for the benefit of the colhe said :

lege; and subsequently, for £100 a year each,

from two other bridges across the same stream. “ The next, and the only other dismission of a In the consideration of this subject, Mr. Chairmember of said corporation, was on February last, man, I come now to the third period in the exist-, 1741–2; without any power from the court, or ence of the college ; and that is under the Constiany act of said corporation for the same, but by tution of the Commonwealth, as established in the sole and sovereign authority of the overseers of the college ; who, having no plain law for it, 1780, and revised by the Convention of 1820. nor from times immemorial any instance of such

The college had existed in name, though not in a thing on their side, seemed now resolved to law, as a college, from 1636 to the time of its make one, that so they might plead in future charter in 1650. It then became both in law and times. Precedents against law are dangerous in fact a college. The board of overseers, as I things; especially if they rise so high as to turn out members of corporations. Such a thing done

have already said, was recognized by the charter, in England would cause an insurrection; and if and made a component part of the government. this power does not belong to the corporation and An appendix to the charter was given in 1657. overseers of said college by law, the overseers of Another modification was made in 1672; and the said college, by such an act, have assumed to whole was confirmed by the general court in themselves the powers of the general court, viz. :

1707. those powers, which in President Dunster's case were not the powers of the overseers, but were

These were all the laws that were in force delegated to them from the court, and so were the touching the college, when the Convention of powers of that court. Nothing, therefore, can de- | 1780 assembled. Such was the understanding of



[July 15th.

that body, and such is the voice of history upon child, in all its trials and perils, from its infancy, the subject.

when Cambridge itself was but a wilderness, up In forming the Constitution, the Convention to its strong and vigorous manhood. Without proceeded to secure the rights of the corporation, this visitatorial guardianship of the Commonwealth and the rights of the people as the founder, so over the college, its light would have gone out, that they should be transmitted unimpaired, to its funds would have been dissipated, its charter future times. The result of its action was the would have been a dead letter, and the donations fifth chapter of the Constitution, which was ap of Harvard, and other generous benefactors, proved and adopted by the people.

would have been lost forever ; and there would The chapter is divided into three sections. The have been no broad foundation on which to pile first declares :

up the splendid legacies of later days.

With all deference, Mr. Chairman, to the “ That the president and fellows of Harvard opinions of gentlemen learned in the law, I am College, in their corporate capacity, their officers unable to believe that this is a case beyond the and servants, shall have, hold, use, exercise, and enjoy all the powers, authorities, rights, liberties, reach of ordinary comprehension ; or that it is privileges, immunities, and franchises, which involved in intricacies and mysteries which comthey now have, or are entitled to have, hold, use, mon sense cannot fathom. The corporation itself, exercise, and enjoy; and the same are hereby in its memorial two years ago, told the legislature ratified and confirmed unto them, and to their

that :successors, and to their officers and servants respectively forever.”

“ There is no doubt that the founder of a charity

has the right in its creation to prescribe the terms The second section confirms to the college all and tenure upon which it shall be held, and the statthe gifts, grants, devises, legacies, and convey utes by which it shall be governed, and to reserve ances, made to the college, to be held and used in the power of altering them from time to time; as conformity to the will of the donors.

also general legislative and judicial authority over The third section provides for the perpetuity of tion; provided that such terms, tenure, and reser

the trustees, with power of removal and substituthe board of overseers, closing with this proviso:

vations, be not repugnant to the general law. Nor

can it be doubted that, if the grant be general in “Provided, that nothing herein shall be con its terms, for the purposes of the charity, without strued to prevent the legislature of this Common prescribing any terms upon which it shall be held wealth from making such alterations in the gov and managed, such general legislative and judicial ernment of the said University as shall be condu power will remain in the founder, to be exercised at cive to its advantage and the interest of the his pleasure ; nor that, if the whole tenure and republic of letters, in as full a manner as might government are not granted to the trustees or have been done by the legislature of the late other persons, the portion not thus parted with will province of the Massachusetts Bay.”

remain in him. And any power thus expressly

or tacitly reserved in the founder, is called visitaThis proviso refers not to the corporation alone, torial, and may remain in him, or be at any or the overseers alone, for neither of them in their

time granted to other persons; and it constitutes a separate capacity constitutes the government of the courts of law and equity

valuable estate or property, recognized as such in college. The form of expression is such that it must embrace both boards, or it would be without This opinion is signed by the chief justice of sense and meaning. Of course, under the consti our supreme court, and by one of the judges of tution, the legislature of to-day has the same the United States court, and may, therefore, be powers of legislation which were had by the taken as sound law in the case. This doctrine is general court previous to 1780; and what that not inconsistent with that of Mr. Justice Holt, power was we have seen in the whole history of that if the founder of an institution fails to prolegislation during the times of the colony and the vide a visitor, the law provides one for him. province. The court claimed and exercised its But if I understand the memorial, it avoids the rights of visitation, as founder, in as full and per- conclusion, by the assertion that Harvard College fect a manner as it would be possible for it to claim is a close corporation; and that its franchise is a and exercise any right pertaining to the functions vested right in the Fellows, which the legislature of government. To deny this, is to deny the cannot touch. whole history of the Commonwealth. It is to If that be so-if John Harvard was the founder deny that the college was built, located, and of the college, and the right of visitation was in named by the general court. It is to deny that him, his heirs, and successors—then Harvard Colthe court watched over it by day and guarded it lege can be brought into the same category with by night, and sustained it as a parent sustains a Dartmouth College; and the law of the United



[July 15th.

States court will apply in the one case as well as good faith to its early and its later benefactors, who in the other. But I find no analogy between bave enriched it with a princely munificence them.

we are under the most sacred of obligations to see Dr. Wheelock was the founder of Dartmouth that its funds are not perverted from the purposes College, and retained for himself, his heirs, and to which they were dedicated. If a perversion is successors, a visitatorial right over the foundation. proved—or a failure to give them their full force The legislature of New Hampshire intervened, and effect-then the exigency is made out; as it and changed the organization of the corporation. was in the case of Dunster in 1654, and in the case The trustees appealed to the United States court of the summons to the college to appear before the for redress, under that provision of the United general court in 1674. In such a case, the plea States Constitution which declares that “no State of a contract cannot avail against the Commonshall pass any law impairing the obligation of wealth. contracts.” The court sustained the appeal, and But in supposed cases of conflict between the the legislature was defeated. But whether a con general government and the government of a tract was or was not involved in that case, is a State, it is important to bear in mind the relative question I leave to the logic of the legal profes- | powers of each to the other—the theory of civil sion; as also those other questions, whether the government among us, and the mode in which same doctrines were upheld by that court, and if power is distributed by our institutions. so, how far, in the more recent case of the War The general government is an organization of ren Bridge; and also whether, as the supreme delegated power. It has no original sovereignty. court of the United States has been constituted of It is a creature of the States, which created it late years, it is probable that the same doctrines by contributions from their own sovereignty, would now be laid down as law which ruled in powers and rights. It can act upon such powers the decision of the Dartmouth case.

only as were expressly delegated to it by the In the Convention of 1820, Mr. Webster ad States; and the powers which it may exercise are mitted, in his report, that the college was founded plainly and specifically defined and set forth in by the Commonwealth. His opinion will

, of its constitution, as well as the powers which it is course, have great weight with a portion, at least, forbidden to exercise. With the single exception of this Convention. If he was correct in his of the powers thus delegated, every State is soveropinion, then the Commonwealth has a perfect eign of itself, up to the full measure of its reserved right to modify the organization of the college, powers, rights and privileges; and can be held acwhenever the exigencies of the case may require countable in no manner to the general government, it. Should it do so, upon the theory admitted by except for an invasion of the powers it expressly Mr. Webster, then there will be no impairing of delegated to that government when it became a the obligations of a contract that would make a party to the compact between the States of the case that could stand for a moment in the United Union. When, therefore, there is no collision States court. The exigeneies of the case must between a State and the general government, and rule the decision. The court will admit the full no question in dispute in the nature of a contract rights of the Commonwealth as visitor upon its to be impaired, the Commonwealth cannot be own foundation; unless, of which I should en called to account in the courts of the United tertain no serious apprehension, it should throw States for any exercise of its reserved sovereignty over the case one of those constructive interpre- and power in or upon its own institutions. Upon tations of power in the general government, these premises, it is my full belief that the genwhich tend to rob the States of their sovereignty, eral government, acting within the limits of its concentrate all power in the general government, delegated sovereignty, and without the line of the and subyert the liberties of the people.

reserved rights of the States, has no more right If the Commonwealth has all the rights and to touch the Commonwealth for its action upon powers of founder of the college, and there exists Harvard College, than it has for its action upon an exigency, then the corporation is in the power the State Lunatic Hospital, or the State Reform of the general court, acting under such consti School. Both of those institutions are corporatutional provisions as the people may prescribe; tions, substantially of the same nature as the corand there is, and can be, no contract that can be poration of Harvard College admitted itself to be, impaired by the action of the people through a from the period of its organization down to about Convention, or the general court. In good faith the commencement of the present century. to our forefathers who established the college, and The provision that “no State shall pass any watched over it in its early perils, and fully re law impairing the obligation of contracts,” was cognized it in the Constitution-and especially in originally a compact of amity between the sev.



[July 15th.

eral States, to protect the rights of the citizens of of the general court, show that it has been enone State from destruction or invasion by the dowed with a profusion that is almost prodigal. government of another State.

And what is the result? A less number of By the resolution upon your table, Mr. Chair students than is found in some colleges more man, it is proposed to affirm in the Constitution recently established, and charges for education the full power of the legislature over Harvard that are onerous to many who avail themselves College, as a State institution ; subject, however, of its benefits. to such restrictions as shall forever protect the These facts have led to the inquiry whether college in all its legal rights. It is a simple pro the college has, or has not, failed to meet the position, and needs no labored exposition. It just expectations of the people. Those expectagives to the legislature all the power which the tions were expressed in the charter. They were people have over the college. It places it in the -not that it should be a select school for the Constitation as an express power, where it now education of classes or cliques in particular theoexists in the nature of an implied or inferential ries, principles, or tenets, religious or secularpower; the extent of which has always to be but, in the concise language of the charter, “ for determined by judicial interpretation. The lan the advancement and education of youth in all guage of the resolution is almost identical with manner of good literature, arts, and sciences.” the charters of the other two colleges in the What, then, Mr. Chairman, is the relation Commonwealth. The charter of Williams Col which the college now holds to the Commonlege was granted in 1793; and in it the general wealth : court expressly provided, in these words :

Its corporation is now, and long has been,

composed of men who are understood to be of * That the legislature may grant any farther one sect in religion, and of one party in politics. powers to, or alter, limit, annul, or restrain, any

That religious sect does not embrace more than of the powers vested by this act in the said corporation, as shall be judged necessary to promote

one-tenth of the people of the Commonwealth. the best interests of the said college.'

I do not charge, Sir, that in some of its acts the

corporation has shown a culpable insensibility This charter was given thirteen years after the to public opinion; but I do say, that while the adoption of the Constitution of 1780; and, (as college remains in the hands of a sect or a party, suggested by a member of the committee,) was it is outside, over and beyond, the reach of the in all probability an exposition of the view which sympathies, the approval, the coöperation of the was then entertained of the powers of the gener mass of the people. al court, affirmed by the Constitution, as exist Its founders and benefactors never designed ing under the Province Charter.

that it should be a sectarian, a narrow, or an Thirty-two years afterwards, in 1825, the legis- exclusive institution. They, of course, had their lature chartered Amherst College, and placed in peculiar notions in theology and in government; its act of incorporation a transcript of the provi- but they nowhere incorporated them into the sion contained in the charter of Williams College ; constitution of the college, or made provision that with the farther provision, however, that the they should rule in its administration. legislature should forever elect a portion of the For one, Mr. Chairman, I propose to make no trustees of the college. And that is now done. changes in the original character and purposes of

One other point, Mr. Chairman, remains to be the college. All I propose, is to bring back the briefly considered, and that is whether there college upon its first foundation; to give greater exists a necessity for the Commonwealth to in- activity and effect to those means of education tervene, in the exercise of its visitatorial rights that have been so liberally supplied by the Comand powers, to correct abuses in the organization monwealth, and by the largesses of its long line and operations of the college; or to give to the of private benefactors ; and, by future constituinstitution greater force and effect.

tional legislation, to place the college in full conIn the matter of the funds of the college, I tact with the beating pulse of the great heart of make no charges against the corporation. I have the Commonwealth, that the generous sympanone to make. If any are to be made, they thies of the whole people may cluster around it must come from some other source. I know in the present and in all coming time. Ours is nothing of its funds—how they have been in a powerful Commonwealth. Its amplitude of vested and applied-except in common with the means is daily augmenting. The platform of the whole community. I never entered the doors of college is a broad one. Without impairing the the college, and know nothing of its internal efficiency of the institution that now occupies but order and life. Its own reports, and the records one of its corners, the Commonwealth can rear



(July 15th.

upon it an organization such as the progress of | I would have chosen to have retained the provisociety may demand.

sion as it is in our present Constitution, without Of course, Mr. Chairman, I have no sympathy alteration or addition. with those who cherish errors and abuses because I have some objection to the present Report. they are old; and dread the progress of truth be- The principal objection I have to it is, that it cause its revelations are new; who regard every leaves the relation between the government and change as innovation; and who hope that the the college precisely where it was. It neither future may be as the present is, or as the past confers an additional power on the legislature, nor has been. The Committee with whom I have does it compel them to do anything which they had the honor to act in reporting this resolution, had no power to do, without such a provision. I do not even contemplate a subversion of the es do not think it wise to make any change in the tablished order of the college, or a change of its Constitution, without something is to be effected studies or discipline. If there are duties unper-

—without some new power is granted to the legformed, all will agree that they should no longer islature, which it did not possess before. be neglected. If there are drones in the hive, Another objection which I have is, that it they should be set to work, or driven out. But rather invites the legislature to do what I believe these are the appropriate duties of an energetic it has no power to do; and if it should undertake administration of the college, that comprehends to exercise such power, it would be in contravenits duty, and bas the moral courage to do it. tion of the Constitution of the United States.

Harvard College has the means—and what it The contract to which allusion has been made, is has not it can have—to place it beyond the reach a contract which comes within the meaning of of competition from all other American Colleges. the article of the Constitution of the United States, Popularized as it should be, and in a land that which provides that no State shall pass any law is progressing with giant strides, it should have impairing the obligations of contracts, and they its thousands of students where it now has its probably would refer to the celebrated Dartmouth hundreds. It should be a great centre of good College case as an authority. In 1769, the crown influences—the prolific fountain, from which "all of England created a corporation consisting of manner of good literature, arts, and sciences” twelve of the corporators of Dartmouth College, should flow out in abundant streams, to enlarge, by which the whole management of that instituto invigorate, to refine, the public mind. It tion was intrusted. The college continued to should be the head of our system of public in flourish under this charter, fulfilling the benevostruction :—not standing aside, in narrow exclu lent intentions of its founder and benefactors, till siveness, to furnish a few individuals for the in 1816, the legislature of New Hampshire-thinkprofessions :—but educating men, of all classes, ing, as many do now, with respect to the corpofor a higher aim in all the pursuits and avoca ration of Harvard College, that the institution tions of life—especially that great body of pub- could be rendered more extensively useful, by lic teachers who are hereafter to give tone and putting it immediately under the control of the direction to the ideas and sentiments of the peo-State-proceeded to provide that there should be ple.

two new boards created. Nine trustees were With these views, thus imperfectly presented, added to the original twelve. There was also a and with the hope that my colleagues of the board of overseers, consisting of twenty-five, Committee will supply my deficiences, I ask par- | having a negative upon the acts of the corporadon, Mr. Chairman, for the extent to which I tion; and the members of both of these boards have trespassed upon your forbearance.

are made elective by the governor and council. Mr. BRAMAN, of Danvers. Being a mem The corporation of Dartmouth College resisted the ber of the Committee which made this Report, act. They contended that it was an invasion of I ask the indulgence of the Convention for a short their chartered rights, and that it was an indirect time, in order that I may have an opportunity of contravention, both the Constitutions of New expressing my views. With some of the views Hampshire, and of the United States. They took the which have just been expressed by the chairman case into the courts of New Hampshire, and then, of that Committee, I entirely concur; but from after the decision of the courts of that State went others of them I as entirely dissent, although, against them, they appealed to the United States without doubt, those views are conscientiously court, and, after an argument, conducted by some and honestly entertained.

of the most eminent legal men of the country, I should have preferred to have stricken out of and after an investigation by the court, adorned the Constitution all that related to Harvard Col- by the names of a Marshall, and a Story, the delege; and failing in that, as the next best thing, cision of the New Hampshire court was overruled,

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