dent is concluded to be dismissed without farther hearing."

In 1693, Increase Mather was president of the college. He was a man of ability and learning, but exceedingly ambitious to figure in politics, as well as in religion and literature. He not only chose to retain his place as pastor of the North Church in Boston, but he even left both his church and the college, to go on a political mission to England. In view of his course, the general court voted, that "the president of Harvard College, for the time being, shall reside there, as hath been the custom in times past;" and five years afterwards the court found it necessary to declare again, that "the president should reside at Cambridge." But president Mather, still disregarding the wishes of the government, the general court, in 1701, dismissed him from the presidency, and placed the college in the charge of vicepresident Willard; and in 1707, Willard having

deceased, John Leverett was chosen to fill the place, and the general court, accepting and approving of the appointment, voted to pay him a salary of £150 from the public treasury, "for his encouragement and support during his continuance in said office, he residing at Cambridge, and discharging the proper duties to a president belonging, and entirely devote himself to that service."

In 1742, Nathan Prince, who had been a member of the corporation for fourteen years, was dismissed by a vote of the Board of Overseers. He was a vigorous and earnest writer, and although guilty of some dereliction in those rigorous times, he was not disqualified to bear witness to future times against an act of usurpation on the part of the overseers. In his appeal to the public,

he said :

"The next, and the only other dismission of a member of said corporation, was on February last, 1741-2; without any power from the court, or any act of said corporation for the same, but by the sole and sovereign authority of the overseers of the college; who, having no plain law for it, nor from times immemorial any instance of such a thing on their side, seemed now resolved to make one, that so they might plead in future times. Precedents against law are dangerous things; especially if they rise so high as to turn out members of corporations. Such a thing done in England would cause an insurrection; and if this power does not belong to the corporation and overseers of said college by law, the overseers of said college, by such an act, have assumed to themselves the powers of the general court, viz.: those powers, which in President Dunster's case were not the powers of the overseers, but were delegated to them from the court, and so were the powers of that court. Nothing, therefore, can de

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mand a more critical examination than such precedents; and that at their first beginning, before they acquire the force of laws, and in future times will be pleaded as law, against the rights of the general court itself.”

The whole drift of Prince's appeal, was to the effect that the power of removing a fellow of the corporation, was not given by the charter to the college government, but, in his own words, "that the court had reserved it to themselves;" thus bearing his own testimony, in the most emphatic manner, to the visitatorial right and power of the general court as the founder of the college.

The general court, in all the times of the colony and province, showed its zeal in maintaining the foundation it had established, by paying, for a long period of time, the salary of the president of the college out of the country treasury; by numerous payments to professors in the college; by grants of land; and by donations of £1,500 in

1718, for the erection of Massachusetts Hall; of £1,000 in 1726, for the president's house; of £2,500 in 1762, for Hollis Hall; and of £4,100 in 1764, 1765, and 1766, for rebuilding Harvard Hall; amounting in the aggregate, down to 1786, as stated by the treasurer of the college, to over $91,000. And he says that in those early days money had a value six or seven times greater than its value in later times.

But the Commonwealth's bounty to the college did not stop with grants of money. In 1640, it gave the college the ferry across Charles river. How much income it afforded, I have not the means of knowing. But in 1785, after the charter of the Charles River Bridge Company, the general court provided for an annual payment of £200 a year by that company for the benefit of the college; and subsequently, for £100 a year each, from two other bridges across the same stream.

In the consideration of this subject, Mr. Chairman, I come now to the third period in the existence of the college; and that is under the Constitution of the Commonwealth, as established in 1780, and revised by the Convention of 1820.

The college had existed in name, though not in law, as a college, from 1636 to the time of its charter in 1650. It then became both in law and

in fact a college. The board of overseers, as I have already said, was recognized by the charter, and made a component part of the government. An appendix to the charter was given in 1657. Another modification was made in 1672; and the whole was confirmed by the general court in 1707.

These were all the laws that were in force touching the college, when the Convention of 1780 assembled. Such was the understanding of

Friday,]

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In forming the Constitution, the Convention proceeded to secure the rights of the corporation, and the rights of the people as the founder, so that they should be transmitted unimpaired, to future times. The result of its action was the fifth chapter of the Constitution, which was approved and adopted by the people.

The chapter is divided into three sections. The first declares:

"That the president and fellows of Harvard College, in their corporate capacity, their officers and servants, shall have, hold, use, exercise, and enjoy all the powers, authorities, rights, liberties, privileges, immunities, 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, and to their successors, and to their officers and servants respectively forever."

The second section confirms to the college all the gifts, grants, devises, legacies, and conveyances, made to the college, to be held and used in conformity to the will of the donors.

The third section provides for the perpetuity of the board of overseers, closing with this proviso:

"Provided, that nothing herein shall be construed to prevent the legislature of this Commonwealth from making such alterations in the government of the said University as shall be conducive to its advantage and the interest of the republic of letters, in as full a manner as might have been done by the legislature of the late province of the Massachusetts Bay."

This proviso refers not to the corporation alone, or the overseers alone, for neither of them in their separate capacity constitutes the government of the college. The form of expression is such that it must embrace both boards, or it would be without sense and meaning. Of course, under the constitution, the legislature of to-day has the same powers of legislation which were had by the general court previous to 1780; and what that power was we have seen in the whole history of legislation during the times of the colony and the province. The court claimed and exercised its rights of visitation, as founder, in as full and perfect a manner as it would be possible for it to claim and exercise any right pertaining to the functions of government. To deny this, is to deny the whole history of the Commonwealth. It is to deny that the college was built, located, and named by the general court. It is to deny that the court watched over it by day and guarded it by night, and sustained it as a parent sustains a

when Cambridge itself was but a wilderness, up to its strong and vigorous manhood. Without this visitatorial guardianship of the Commonwealth over the college, its light would have gone out, its funds would have been dissipated, its charter would have been a dead letter, and the donations of Harvard, and other generous benefactors, would have been lost forever; and there would have been no broad foundation on which to pile up the splendid legacies of later days.

With all deference, Mr. Chairman, to the opinions of gentlemen learned in the law, I am unable to believe that this is a case beyond the reach of ordinary comprehension; or that it is involved in intricacies and mysteries which common sense cannot fathom. The corporation itself, in its memorial two years ago, told the legislature that:

"There is no doubt that the founder of a charity has the right in its creation to prescribe the terms and tenure upon which it shall be held, and the statutes by which it shall be governed, and to reserve the power of altering them from time to time; as also general legislative and judicial authority over tion; provided that such terms, tenure, and reserthe trustees, with power of removal and substituvations, be not repugnant to the general law. Nor can it be doubted that, if the grant be general in its terms, for the purposes of the charity, without prescribing any terms upon which it shall be held and managed, such general legislative and judicial power will remain in the founder, to be exercised at his pleasure; nor that, if the whole tenure and government are not granted to the trustees or other persons, the portion not thus parted with will remain in him. And any power thus expressly or tacitly reserved in the founder, is called visitatorial, and may remain in him, or be at any time granted to other persons; and it constitutes a valuable estate or property, recognized as such in courts of law and equity."

This opinion is signed by the chief justice of our supreme court, and by one of the judges of the United States court, and may, therefore, be This doctrine is taken as sound law in the case. not inconsistent with that of Mr. Justice Holt, that if the founder of an institution fails to provide a visitor, the law provides one for him.

But if I understand the memorial, it avoids the conclusion, by the assertion that Harvard College is a close corporation; and that its franchise is a vested right in the Fellows, which the legislature cannot touch.

If that be so-if John Harvard was the founder of the college, and the right of visitation was in him, his heirs, and successors-then Harvard College can be brought into the same category with Dartmouth College; and the law of the United

States court will apply in the one case as well as in the other. But I find no analogy between them.

Dr. Wheelock was the founder of Dartmouth College, and retained for himself, his heirs, and successors, a visitatorial right over the foundation. The legislature of New Hampshire intervened, and changed the organization of the corporation. The trustees appealed to the United States court for redress, under that provision of the United States Constitution which declares that "no State shall pass any law impairing the obligation of contracts." The court sustained the appeal, and the legislature was defeated. But whether a contract was or was not involved in that case, is a question I leave to the logic of the legal profession; as also those other questions, whether the same doctrines were upheld by that court, and if so, how far, in the more recent case of the Warren Bridge; and also whether, as the supreme court of the United States has been constituted of late years, it is probable that the same doctrines would now be laid down as law which ruled in the decision of the Dartmouth case.

In the Convention of 1820, Mr. Webster admitted, in his report, that the college was founded by the Commonwealth. His opinion will, of course, have great weight with a portion, at least, of this Convention. If he was correct in his opinion, then the Commonwealth has a perfect right to modify the organization of the college, whenever the exigencies of the case may require it. Should it do so, upon the theory admitted by Mr. Webster, then there will be no impairing of the obligations of a contract that would make a case that could stand for a moment in the United States court. The exigencies of the case must rule the decision. The court will admit the full rights of the Commonwealth as visitor upon its own foundation; unless, of which I should entertain no serious apprehension, it should throw over the case one of those constructive interpretations of power in the general government, which tend to rob the States of their sovereignty, concentrate all power in the general government, and subvert the liberties of the people.

If the Commonwealth has all the rights and powers of founder of the college, and there exists an exigency, then the corporation is in the power of the general court, acting under such constitutional provisions as the people may prescribe; and there is, and can be, no contract that can be impaired by the action of the people through a Convention, or the general court. In good faith to our forefathers who established the college, and watched over it in its early perils, and fully reeognized it in the Constitution-and especially in

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good faith to its early and its later benefactors, who have enriched it with a princely munificencewe are under the most sacred of obligations to see that its funds are not perverted from the purposes to which they were dedicated. If a perversion is proved—or a failure to give them their full force and effect-then the exigency is made out; as it was in the case of Dunster in 1654, and in the case of the summons to the college to appear before the general court in 1674. In such a case, the plea of a contract cannot avail against the Commonwealth.

But in supposed cases of conflict between the general government and the government of a State, it is important to bear in mind the relative powers of each to the other-the theory of civil government among us, and the mode in which power is distributed by our institutions.

The general government is an organization of delegated power. It has no original sovereignty. It is a creature of the States, which created it by contributions from their own sovereignty, powers and rights. It can act upon such powers only as were expressly delegated to it by the States; and the powers which it may exercise are plainly and specifically defined and set forth in its constitution, as well as the powers which it is forbidden to exercise. With the single exception of the powers thus delegated, every State is sovereign of itself, up to the full measure of its reserved powers, rights and privileges; and can be held accountable in no manner to the general government, except for an invasion of the powers it expressly delegated to that government when it became a party to the compact between the States of the Union. When, therefore, there is no collision between a State and the general government, and no question in dispute in the nature of a contract to be impaired, the Commonwealth cannot be called to account in the courts of the United States for any exercise of its reserved sovereignty and power in or upon its own institutions. Upon these premises, it is my full belief that the general government, acting within the limits of its delegated sovereignty, and without the line of the reserved rights of the States, has no more right to touch the Commonwealth for its action upon Harvard College, than it has for its action upon the State Lunatic Hospital, or the State Reform School. Both of those institutions are corporations, substantially of the same nature as the corporation of Harvard College admitted itself to be, from the period of its organization down to about the commencement of the present century.

The provision that "no State shall pass any law impairing the obligation of contracts," was originally a compact of amity between the sev

eral States, to protect the rights of the citizens of one State from destruction or invasion by the government of another State.

By the resolution upon your table, Mr. Chairman, it is proposed to affirm in the Constitution the full power of the legislature over Harvard College, as a State institution; subject, however, to such restrictions as shall forever protect the college in all its legal rights. It is a simple proposition, and needs no labored exposition. It gives to the legislature all the power which the people have over the college. It places it in the Constitution as an express power, where it now exists in the nature of an implied or inferential power; the extent of which has always to be determined by judicial interpretation. The language of the resolution is almost identical with the charters of the other two colleges in the Commonwealth. The charter of Williams College was granted in 1793; and in it the general court expressly provided, in these words:

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“That the legislature may grant any farther powers to, or alter, limit, annul, or restrain, any of the powers vested by this act in the said corporation, as shall be judged necessary to promote the best interests of the said college.'

This charter was given thirteen years after the adoption of the Constitution of 1780; and, (as suggested by a member of the committee,) was in all probability an exposition of the view which was then entertained of the powers of the general court, affirmed by the Constitution, as existing under the Province Charter.

Thirty-two years afterwards, in 1825, the legislature chartered Amherst College, and placed in its act of incorporation a transcript of the provision contained in the charter of Williams College; with the farther provision, however, that the legislature should forever elect a portion of the trustees of the college. And that is now done.

One other point, Mr. Chairman, remains to be briefly considered, and that is whether there exists a necessity for the Commonwealth to intervene, in the exercise of its visitatorial rights and powers, to correct abuses in the organization and operations of the college; or to give to the institution greater force and effect.

In the matter of the funds of the college, I make no charges against the corporation. I have none to make. If any are to be made, they must come from some other source. I know nothing of its funds-how they have been invested and applied-except in common with the whole community. I never entered the doors of the college, and know nothing of its internal order and life. Its own reports, and the records

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| of the general court, show that it has been endowed with a profusion that is almost prodigal. And what is the result? A less number of students than is found in some colleges more recently established, and charges for education that are onerous to many who avail themselves of its benefits.

These facts have led to the inquiry whether the college has, or has not, failed to meet the just expectations of the people. Those expectations were expressed in the charter. They were -not that it should be a select school for the education of classes or cliques in particular theories, principles, or tenets, religious or secularbut, in the concise language of the charter, "for the advancement and education of youth in all manner of good literature, arts, and sciences."

What, then, Mr. Chairman, is the relation which the college now holds to the Commonwealth?

Its corporation is now, and long has been, composed of men who are understood to be of one sect in religion, and of one party in politics. That religious sect does not embrace more than one-tenth of the people of the Commonwealth. I do not charge, Sir, that in some of its acts the corporation has shown a culpable insensibility to public opinion; but I do say, that while the college remains in the hands of a sect or a party, it is outside, over and beyond, the reach of the sympathies, the approval, the cooperation of the mass of the people.

Its founders and benefactors never designed that it should be a sectarian, a narrow, or an exclusive institution. They, of course, had their peculiar notions in theology and in government; but they nowhere incorporated them into the constitution of the college, or made provision that they should rule in its administration.

For one, Mr. Chairman, I propose to make no changes in the original character and purposes of the college. All I propose, is to bring back the college upon its first foundation; to give greater activity and effect to those means of education that have been so liberally supplied by the Commonwealth, and by the largesses of its long line of private benefactors; and, by future constitutional legislation, to place the college in full contact with the beating pulse of the great heart of the Commonwealth, that the generous sympathies of the whole people may cluster around it in the present and in all coming time. Ours is a powerful Commonwealth. Its amplitude of means is daily augmenting. The platform of the college is a broad one. Without impairing the efficiency of the institution that now occupies but one of its corners, the Commonwealth can rear

upon it an organization such as the progress of society may demand.

Of course, Mr. Chairman, I have no sympathy with those who cherish errors and abuses because they are old; and dread the progress of truth because its revelations are new; who regard every change as innovation; and who hope that the future may be as the present is, or as the past has been. The Committee with whom I have had the honor to act in reporting this resolution, do not even contemplate a subversion of the established order of the college, or a change of its studies or discipline. If there are duties unperformed, all will agree that they should no longer be neglected. If there are drones in the hive, they should be set to work, or driven out. But these are the appropriate duties of an energetic administration of the college, that comprehends its duty, and has the moral courage to do it.

Harvard College has the means-and what it has not it can have-to place it beyond the reach of competition from all other American Colleges. Popularized as it should be, and in a land that is progressing with giant strides, it should have its thousands of students where it now has its hundreds. It should be a great centre of good influences-the prolific fountain, from which "all manner of good literature, arts, and sciences" should flow out in abundant streams, to enlarge, to invigorate, to refine, the public mind. should be the head of our system of public instruction :-not standing aside, in narrow exclusiveness, to furnish a few individuals for the professions:-but educating men, of all classes, for a higher aim in all the pursuits and avocations of life-especially that great body of public teachers who are hereafter to give tone and direction to the ideas and sentiments of the people.

It

With these views, thus imperfectly presented, and with the hope that my colleagues of the Committee will supply my deficiences, I ask pardon, Mr. Chairman, for the extent to which I have trespassed upon your forbearance.

Mr. BRAMAN, of Danvers. Being a member of the Committee which made this Report, I ask the indulgence of the Convention for a short time, in order that I may have an opportunity of expressing my views. With some of the views which have just been expressed by the chairman of that Committee, I entirely concur; but from others of them I as entirely dissent, although, without doubt, those views are conscientiously and honestly entertained.

I should have preferred to have stricken out of the Constitution all that related to Harvard College; and failing in that, as the next best thing,

I would have chosen to have retained the provision as it is in our present Constitution, without alteration or addition.

I have some objection to the present Report. The principal objection I have to it is, that it leaves the relation between the government and the college precisely where it was. It neither confers an additional power on the legislature, nor does it compel them to do anything which they had no power to do, without such a provision. I do not think it wise to make any change in the Constitution, without something is to be effected -without some new power is granted to the legislature, which it did not possess before.

Another objection which I have is, that it rather invites the legislature to do what I believe it has no power to do; and if it should undertake to exercise such power, it would be in contravention of the Constitution of the United States. The contract to which allusion has been made, is a contract which comes within the meaning of the article of the Constitution of the United States, which provides that no State shall pass any law impairing the obligations of contracts, and they probably would refer to the celebrated Dartmouth College case as an authority. In 1769, the crown of England created a corporation consisting of twelve of the corporators of Dartmouth College, by which the whole management of that institution was intrusted. The college continued to flourish under this charter, fulfilling the benevolent intentions of its founder and benefactors, till in 1816, the legislature of New Hampshire-thinking, as many do now, with respect to the corporation of Harvard College, that the institution could be rendered more extensively useful, by putting it immediately under the control of the State-proceeded to provide that there should be two new boards created. Nine trustees were added to the original twelve. There was also a board of overseers, consisting of twenty-five, having a negative upon the acts of the corporation; and the members of both of these boards are made elective by the governor and council. The corporation of Dartmouth College resisted the act. They contended that it was an invasion of their chartered rights, and that it was an indirect contravention, both of the Constitutions of New Hampshire, and of the United States. They took the case into the courts of New Hampshire, and then, after the decision of the courts of that State went against them, they appealed to the United States court, and, after an argument, conducted by some of the most eminent legal men of the country, and after an investigation by the court, adorned by the names of a Marshall, and a Story, the decision of the New Hampshire court was overruled,