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Now, I maintain, that the charter of Harvard College is as strong as the charter of Dartmouth College, in its main features; and having read them both, and carefully compared them together, I put it to any legal gentleman, whether there is any such difference between the corporation of Dartmouth College, and that of Harvard College in 1650, as does not place them both alike under the Constitution of the United States.

Views have been advanced by the chairman of the Committee, and they are advanced also by other individuals, going to show, that the corporation of Harvard College stands on a different footing from that of Dartmouth College, and that it is not within the protection of the Constitution of the United States. I am aware that there are some persons who think that this Convention can exercise a control over this college, which cannot be exercised by the legislature of the Commonwealth; but, Sir, there is no foundation for this idea.

The Constitution of the United States has just as much power in a State, acting through a Convention, as it has acting through a legislature, and if any act should be passed by this Convention, if anything should be incorporated into that instrument which is in contravention of the United States Constitution, it would be just as quickly overruled as it would if it had been done merely by State authority. I know that there are individuals who say that the corporation of Harvard College is a State institution, and they therefore maintain that it is under the control of the State.

Now, the phrase "State institution" is a very indefinite phrase-too indefinite to be made the foundation of an argument, without it is more precisely defined. What then is meant by calling it a State institution? Does it mean that the State gave it its charter of incorporation? Some acts of incorporation are contracts, and are, therefore, exempted from all legislative interference. They are not under the control of the State, and are beyond all interference on the part of the government of the State. It must be determined that the corporation is without the control of the Constitution of the United States, before it can be assumed that it can be interfered with. The question, therefore, depends upon the nature and the objects of the corporation that is created. The act of incorporation determines nothing, one way or the other; and if the act of incorporation of Harvard College of 1650, was a contract within the meaning of the Constitution of the United States, then, of course, it is protected by that instrument, and is not otherwise under the power and control of the State, than as its members are

of the community.

The question then arises, whether a power can be deduced on the part of the State in relation to this institution, in consequence of its being a benefactor to the State.

It has, doubtless, conferred many peculiar benefactions upon the government, but it would have been impossible for the college to have proceeded, without the assistance of the State. But, was it ever known that the conferring of a gift carried with it the power of control over the person or body to whom it was made? When was such a thing ever known? If the State has conferred a gift upon the college, it carries with it no control, except so far as the power is deduced from the assumed fact that the State is the founder of the college. The learned chairman of the Committee, (Mr. Knowlton,) maintained that the State was the founder. This assertion has been disputed, and I think it remains doubtful to this day, whether the appropriation which the State made to the college was ever applied to the uses for which it was made, before the donation of John Harvard was applied. to set the college in operation.

Mr. BOUTWELL, for Berlin. I wish to ask the gentleman whether the existing Constitution of the State does not declare that our ancestors founded Harvard College in 1636, and whether at the Convention of 1779, the corporation and board of overseers did not both assent to the insertion of that declaration into the Constitution of the State.

Mr. BRAMAN. The words "our ancestors," may refer to the State, or they may not. But I will waive the point whether the State founded the college or not, because the mere fact that a person, or state, or government, founded an institution, does not necessarily imply that it has the control of it. The doctrine of the common law upon the subject, is this: that the founder retains the right of visitation over the institution as long as he chooses to do so, but he has the right to part with it at any time. He retains the power as long as he lives, and then, I believe, it descends to his heirs, unless he otherwise makes provision for its disposal. But, I say, he has the power to devolve it upon any other body, and when he has disposed of it, whether to an individual, to a state, or to a board of trustees, the whole power is gone from the founder. Mr. Wheelock founded the institution of Dartmouth College, and, as such, had the right of visitation and control. But he chose to part with the power and privilege, and the moment he did that, he had no more authority to meddle with the institution, than the Emperor of China has. And, I maintain, that the State can

just as well part with its power over a corporation as an individual can. Cannot the State sell, or convey away property, by gift? Cannot she also dispose of her corporate franchises? I believe this doctrine is maintained by all the writers upon common law. So the fact, if admitted, that the State founded Harvard College, does not give it any right of control over the corporation, provided it has parted with its power. And I maintain that it parted with all its power when it gave the charter of 1650. If that act does not convey complete control to that body over the college, then there are no terms which can convey control; and if it is not a contract within the meaning of the Constitution of the United States, it is not in the power of language to frame a con

tract.

But, it is said, that the Constitution of 1780 gave to the State all the power over the college which might have been exercised by the provincial government. That Constitution says:

"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."

Now, I think, by a fair construction, that the language refers only to the board of overseers. But, suppose it extends to the corporation also; then the question is, what was the power which the provincial government might have exercised over the college? for it is necessary to determine the amount of the one, in order to ascertain the other.

I ask, first, what power did the provincial government exercise? It never exercised any. From the first moment that the charter was granted, up to its reestablishment in 1707, there was no act of interference by the legislature, until the Revolution which severed this country from Great Britain. The college went on during that time, and acted according to the powers conferred upon it by the charter, and as independent of the government as though the government had not existed.

But I ask, secondly, was it a power which the government attempted to exercise, by one or more of its departments. It was attempted to be exercised, but the attempt failed. In 1722, I believe, two members of the academic faculty applied for seats in the corporation. The corporation rested their defence upon the charter, and maintained that that instrument confined the membership of the corporation to residents of

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This

the college. This measure originated not merely from a desire of the petitioners to obtain seats upon the board, as a desire to remove some obnoxious members from the corporation. board resisted, and, at length, an appeal was taken to the general court, and the legislature passed resolves favorable to the views of the petitioners. They were concurred in by the council, but were negatived by the governor.

It is maintained, by some, that this attempt on the part of the provincial government, shows the views they entertained, respecting the liability of the corporation to their control, and determines that the government entertained opinions in favor of its powers over that body, which, though rightly possessed, failed to be carried into accomplishment from motives of expediency.

But, let me ask, what was the nature of this power, attempted to be exercised over Harvard College? It was, to all intents and purposes, a judicial power. It undertook to fix the construction of the charter. It undertook to interpret the law, and that law a contract, and to depose some individuals of their franchises, and to admit others in their places.

Now, it belongs to courts of law, and not to the legislature, to exercise judicial powers. I am aware that there are cases where laws are ambiguous and of doubtful construction, and a legislature sometimes passes other laws to remove that ambiguity and doubt; but such laws are, to all intents and purposes, new laws, and not an attempt to ascertain the intention of previous legislatures.

Now, if this was a judicial exercise of power, it does not belong to our legislature, because the Constitution of the Commonwealth expressly makes a distinction between the powers of the legislature and the powers of the judiciary, and says that the one shall not exercise the functions of the other. Of course, therefore, as it was a judicial act, it does not belong to our legislature or to any other.

Let me also ask, whether it was a power which might be rightly exercised, according to the views of morality, for doubtless it refers to such a power as this, if it refers to any power at all. And what is this power? It has no right to annul the charter of any corporation, or to impair it to any extent whatsoever.

"When," declares Judge Story, "a private eleemosynary corporation is thus created by the charter of the crown, it is subject to no other control on the part of the crown, than what is expressly or implicitly reserved by the charter itself. Unless a power be reserved for this purpose, the crown cannot, in virtue of its preroga

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tive, without the consent of the corportion, alter or amend the charter, or divest the corporation of any of its franchises, or add to, or diminish the number of trustees, or remove any of the members, or change, or control the administration of the charter, or compel the corporation to receive a new charter."

I believe Judge Story says, in another place, that the idea that a state cannot interfere with the charter of a corporation, is one of the most stubborn doctrines of the common law.

This was the contemporaneous construction, in 1650, when the charter was given, and again, in 1707, when the charter was reestablished: that a power which gave a charter could not resume it, and could not impair any of its first rights what

soever.

I am not forgetful of the fact that the parliament of England possesses an omnipotent power; that it has the power of annulling corporate rights, and of violating contracts. It is so, because there is no authority to restrain the exercise of such power, if it chooses to exercise it. It might annul the charters of both Cambridge and Oxford tomorrow, if it saw fit to do so. But it will probably not exercise such power, because it would create a sensation which would endanger the stability of the government.

But while it is admitted that parliament possesses that power, it is also firmly maintained that it is has no moral right to exercise it. Should it proceed to violate a charter, it would be considered as an exercise of tyrannical power, and a flagrant outrage upon all principles of morality.

In 1783, an attempt was made by parliament to alter the charter of the East India Company. But it met with strenuous opposition, and failed. It was styled, in the petition of the city of London, not only a high and dangerous violation of the charter of the Company, but a total subversion of all the principles of the law and constitution of the country. It was called, by Lord Thurlow, a rash, atrocious violation of private property, which cut every Englishman to the bone. And this was said, be it remembered, at a time when it was admitted that parliament had omnipotent power.

Mr. KNOWLTON, of Worcester. I would ask the gentleman whether the English law places the East India Company upon the same basis as that of literary and charitable institutions; and whether there does not exist a distinct right as to such institutions, which is not recognized by the law of England in regard to business corporations?

Mr. BRAMAN. I think there is a distinction, but it is all in favor of private corporations. They have much less power over such corpora

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tions, than they have over the East India Company.

Now, the provincial government might possibly have possessed and exercised the same power, within its sphere, that parliament had. It will be recollected that the colonial government maintained that it had, within its own sphere, powers as transcendent as the parliament of England had within its sphere. But suppose that it had this power, it had no more right to exercise it than the omnipotent parliament had.

It is a power which does not belong to our legislature, and which is against all authority, all right, and all justice.

But I have another argument upon this subject. The Constitution of 1780 confirmed to Harvard College its privileges and franchises. It is declared

"That the President and Fellows of Harvard College, in their corporate capacity, and their successors in that capacity, their officers and servants, shall have, hold, use, exercise and 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, the said president and fellows of Harvard College, and to their successors, and to their officers and servants, respectively, forever."

It seems, then, that when the Constitution confirmed these liberties and franchises of Harvard College, it confirmed franchises which it is not in the power of a legislative body to take away. And it was intended as a protection of the college against any such interference. Would it have been wise and consistent for them, after having thrown this shield around the college, to have put another paragraph into the Constitution which should proceed to surrender up the corporation to the mercy of the legislature.

[Here the chairman's hammer fell, the half hour allotted to each member to speak, having expired.]

Mr. HOOPER, of Fall River, moved that the Committee rise, report progress, and ask leave to sit again, with the view to a temporary suspension

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of the operation of the order adopted this morning, limiting speeches to half an hour.

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represents the majority of the Committee, to ex

THE CONVENTION,

The chairman of the Committee of the Whole reported progress, and leave was granted to the Committee to sit again.

Mr. ALLEN, of Worcester, moved a suspension of the rule limiting speeches to half an hour, for this day.

Mr. BUTLER, of Lowell, moved to amend the motion of the gentleman from Worcester, so as to suspend the operation of the rule altogether.

Let us, said Mr. Butler, either have the rule enforced, or let us abrogate it.

Mr. HOOPER. My object in moving that the Committee rise, was, that the rule might be so far suspended, as to give to gentlemen on each side of the question, an equal chance of being heard.

The PRESIDENT. By the rules of the Convention, the question on suspending the operation of the order, is not debatable.

Mr. WESTON, of Duxbury, moved that the question on the motion of the gentleman from Worcester, be taken by yeas and nays. The motion did not prevail, and the yeas and nays were not ordered.

Mr. HOOPER moved to amend the motion of the gentleman from Worcester, so far as to give to the gentleman who was last in possession of the floor in Committee of the Whole, the same length of time to reply, as was allowed to the chairman of the committee on Harvard College, who preceded him, to address the Committee.

Mr. ALLEN accepted the amendment, as a modification of his motion.

Mr. BUTLER. Is the motion debatable? The PRESIDENT. It is not debatable. Mr. BUTLER. Then I move a reconsideration of the vote by which the order limiting the duration of speeches, was adopted.

The PRESIDENT. The question is on suspending the rule for a limited time.

Mr. SCHOULER. Does the Chair decide, that the order adopted this morning is one of the rules of this body, requiring a vote of two-thirds for its suspension ?

The PRESIDENT. It is a standing order, and will require a vote of two-thirds for its suspension.

Mr. RANTOUL, of Beverly. It seems to me, Sir, that this is a very simple matter, that it is but a matter of simple justice, to allow the gentleman

fore, the rule will be suspended, so far as to allow the gentleman from Danvers an opportunity to conclude his remarks.

The PRESIDENT. The proposition, as modified, is that the order adopted this morning be so far suspended, that the gentleman who last addressed the Committee of the Whole, be permitted to conclude his remarks.

The motion, as modified, was agreed to. On motion of Mr. BRIGGS, of Pittsfield, the Convention again resolved into

COMMITTEE OF THE WHOLE,

Mr. Sumner, for Marshfield, in the chair, and resumed the consideration of the Report of the Committee on the subject of

Harvard College.

Mr. BRAMAN. I am very sorry to have been the occasion of so much inconvenience on the part of the Convention; I began to wish I had continued to preserve the silence which I had hitherto preserved in the Convention, for I perceive that I am likely to acquire a good deal more notoriety than fame.

When I was cut off in my remarks by the falling of the hammer, I was proceeding to controvert the remark, that the legislature exercised, or might exercise, the power of government over Harvard College. Now, Sir, they never exercised any power over that institution, and they never attempted to exercise any power over it, except that of a judicial character.

Hamilton, in the Federalist, says: "The legis lative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex."

Now, Sir, what is the use of applying any governing power to these institutions, except to restrain abuses? It was competent for the legislature to make any provision, almost, in relation to that college, because there was no power to circumscribe its action. They had no power to set the action of a legislative body aside, if its interferences with the corporation of Harvard College had been ever so numerous. Yet, it would be just as unreasonable to attempt to justify the legislature in its acts of interference with that corporation, as it would to justify the English government in its acts of oppression to its subjects at home and its subjects abroad. It would be just as absurd in one case as in the other. How

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It may be maintained, that the acquiescence of the corporation in the acts of interference upon the part of the government, were a tacit admission by that corporation, of the right of the legislature to interfere. But gentlemen must remember that Harvard might have acquiesced because it had no power to resist. It might have forborne opposition to the interference of the legislature, because its opposition would have been unavailing. It must also be borne in mind that Harvard College was the weaker power, and that it was dependent upon the beneficence of the State for its pecuniary means to carry on its operations. It might naturally be expected, that, although they would regard the interference upon the part of the legislature as improper, yet that they would succumb to an interference upon the part of the State, to a greater or less extent, because the two parties were united together in a contract-one strong and the other weak,-the latter having no power to restrain any exercise of power upon the latter. But to justify acts of this sort would lead to every possible enormity.

But, to proceed. In 1657, additional powers were conferred upon these corporations. They were authorized to do certain things which they had not before been authorized to do. Among other things, a board of overseers was recognized. They accepted the act very cheerfully, although they well knew that they could not have prevented its formation if it had been unacceptable. I do not know of but one act of resistance upon their part, which was in 1676, when this charter was attempted to be enforced upon them, and they refused it.

Subsequent to this period, another act was passed, empowering the president and fellows of Harvard College to impose upon delinquent students a fine, not to exceed ten shillings, and stripes, not exceeding ten in number. This act was considered as enlarging the privileges of the corporation most essentially, because it suited the stern and rigid temper of the men of those times. It conformed with the habits of those men who had lived under monarchical institutions. This privilege was made use of very frequently, and under circumstances of very great solemnity. It would even be inflicted in the chapel, after a sermon, and then the president would proceed to pray that the infliction might be sanctified to the offender. [Laughter.]

There was also another interference which has been alluded to, and one which was submitted to,

interference. When the overseers of the corporation, with the instructors and students, were called before the legislature to receive a reprimand. Now this was such an act of interference -so flagrant in its nature-that I suppose no one would claim it as a precedent for interference upon the part of the legislature. I suppose no one would claim it as a precedent, even if the act had been comparatively reasonable and moderate. Suppose that now, we should summons the president, professors, and students of Harvard College, to appear before us for any such purpose. We might call the spirits, but would the spirits come when they were called? When such a summons shall be given by our legislature, like Cowper, I should "like to be there to see."

Mr. KNOWLTON, of Worcester, (interposing). I desire to ask the gentleman whether, when the corporation, officers, students, &c., of Harvard College were summoned by the general court to appear before them, they did not appear -thus acknowledging the right of the general court to make the demand?

Mr. BRAMAN. They appeared, but it was not necessarily an act of acquiescence. It was rather an act of submission. It was a submission to a power which they could not resist. They submitted to a power they could not control, because they did not dare to do otherwise. But, Sir, I should like to see such an act enforced now. I should like to see the board of overseers, with its distinguished members of church and state, preceded by the president of Harvard College, with his academical gown, closely following in his footsteps the venerable chief justice of the Commonwealth, bearing in his presence the awful majesty of the law. Nay, I would follow the professors and tutors, fresh from their literary and scientific pursuits; and, bringing up the rear, the whole corps of students, wondering at that mysterious and awful power, before which they with their instructors, were to be brought. Well, Sir, all are marched in solemn procession into this hall, to receive, perhaps, the reprimand of the late speaker of the House of Representatives, or of the president of this Convention. Sir, I should like to see how our worthy president would compose himself to his situation. I would like to see him summon dignity adequate to the occasion. would like to see whether he would proceed to administer that reprimand with all the self-possession and grace with which he performs the ordinary duties of the Chair.

I

But I presume, as I have said, that with regard to the interference of the legislature in this instance, no one would quote it as a precedent.