

 <^ 
 
 ^ MEMORIAL 
 
 CONCERNING 
 
 V' 
 
 HARYARD COLLEGE 
 
 Third Edition. 
 
 1851. 
 

 MEMORIAL 
 
 CONCERNING THE 
 
 RECENT HISTORY 
 
 CONSTITUTIONAL EIGHTS AND PRIVILEGES 
 
 HARVARD COLLEGE; 
 
 t'pSENTED BY THE PRESIDENT AND FELLOWS 
 
 TO THE LEGISLATURE, 
 
 'Vj y- JANUARY 17, 1851. /<■ 6 
 
 
 THIRD EDITION. 
 
 CAMBRIDGE : 
 
 PUBLISHED BY JOHN BARTLETT, 
 
 aUooftselUr to tje ffilnfbcrsfts, 
 
 1851. 
 
MEMORIAL. 
 
 To the Honorable the House of Representatives of the Com- 
 monwealth of Massachusetts. 
 
 The President and Fellows of Harvard College, having been 
 notified to appear before the Legislature on the second Wednes- 
 day in January, 1851, if they shall see fit, to show cause why 
 a bill, proposing a new organization of the College, reported at 
 the last session of the Legislature, should not be passed, would 
 respectfully submit to the government of the Commonwealth 
 a brief statement of such considerations as seem to them most 
 important in relation to this subject. 
 
 In a document of this nature, which should assume the form 
 of a memorial, it is impossible to enter into a full examination 
 of all the grounds upon which the claims of Harvard College 
 to the favor and fostering care of the Legislature are to be 
 maintained. Little more can be done, than to suggest to those, 
 who take an interest in the cause of thorough and sound educa- 
 tion, some of the facts and reasons which prove the great and 
 constantly increasing advantages that have been derived from 
 the organization and management of the College ; to show how 
 promptly it has met the rising demand of the communityj for 
 higher and higher attainments of the pupils, and for improve- 
 ments in the methods of instruction, and how earnestly and 
 successfully it has sought for larger means of usefulness, which 
 are at this moment, in their immediate results, giving the rich- 
 est promise of future progress ; and, finally, to indicate very 
 concisely the legal argument demonstrating that the organiza- 
 tion of the College, fortunate as it has proved itself to have been, 
 cannot be safely, lawfully, or constitutionally overthrown, or 
 essentially changed. 
 
The Report of the Committee who drew up and recommended 
 the bill is clothed in terms so vague, general, and desultory, 
 that it is not easy to bring its several points under any method- 
 ical arrangement ; but the substance of the Report, by which 
 the reasons for the bill are supposed to be sustained, may be 
 divided into the three following topics. 
 
 1. That the College, in the language of the Committee, fails 
 to answer the just expectations of the people of the State. 
 
 2. That the principal cause of this failure exists in the 
 present organization of its government ; and that a remedy is 
 to be found in an alteration of its Charter, enlarging the num- 
 ber of members in the Corporation, and providing for their 
 election by the Legislature. 
 
 3. That this alteration of the Charter is to be effected by 
 a simple legislative act, without consulting the government of 
 the College, and without its consent. 
 
 Upon these topics we proceed to speak in their order, show- 
 ing that the allegations of the Committee are incorrect in cer- 
 tain particulars, as to matters of fact, unsound in principle, and 
 hazarded apparently with little knowledge of the actual state 
 of the University at the present time, and of its progress for the 
 last forty years ; and that their argument in support of an alter- 
 ation of the Charter, by a legislative enactment alone, is at va- 
 riance with established laws, and of a tendency dangerous to 
 all chartered rights. 
 
 I. It is remarkable that so grave and sweeping a charge, as 
 that of failing to answer public expectation, should be advanced 
 without a shadow of proof, or even an attempt to show wherein 
 the failure consists. It is easy to make assertions, but on so 
 large a subject, involving so many interests and such a compli- 
 cation of details, is it just to make them without a patient and 
 careful investigation of the facts ? The loose remarks of the 
 Committee on this important head afford neither proof nor ex- 
 planation ; and yet upon this very point all the complaints in 
 the Report, and the demand for a change in the organization of 
 the institution, necessarily depend. If the College has been 
 successful, no change is required. It has not been successful, 
 say the Committee, and therefore its Charter must be altered. 
 Here we have an opinion unsustained by proof, and an infer- 
 ence from such an opinion, and nothing more. 
 
Since the Committee rest their strength upon this assertion, 
 as the groundwork of the bill presented by them to the Legisla- 
 ture, we are bound to examine it somewhat in detail, and ascer- 
 tain how far it is supported by well-known facts in the recent 
 history and present condition of the University. 
 
 Let us inquire, in the first place, what is the public opinion 
 concerning Harvard College, compared with other similar insti- 
 tutions, in regard to its literary and scientific resources, the use 
 that is made of them, and the quality, extent, and thoroughness 
 of the education furnished to its students. Is it not true,, that, 
 in the judgment not only of its own graduates, but of the well 
 trained scholars of other and rival institutions, it has always 
 been regarded as not surpassed by any American college, for 
 the amount and value of the instruction it gives ? This reputa- 
 tion and position we are proud to believe are not yet lost, and 
 they afi'ord presumptive evidence, of the strongest kind, that, if 
 there has been any failure to satisfy reasonable expectations, it 
 has not been owing to the methods of instruction, or to the kind 
 and extent of the education which may there be obtained. 
 
 This is said in no spirit of boasting, and with no desire to 
 claim a superiority over other colleges, which has not a founda- 
 tion in the circumstances attending the progress of Harvard 
 College, and by which it is now surrounded, but merely to 
 show, that the liberality and generous confidence, with which 
 it has been fostered in this community, have not been bestowed 
 in vain, nor without corresponding and appropriate results. 
 Being the oldest college in the country by more than half a cen- 
 tury, and having larger resources than any other, it ought to 
 offer superior advantages to its students ; and that it does so is 
 only a proof of the discharge of an obligation, on the part of 
 those to whom its government has been intrusted, which it 
 would be discreditable not to have discharged. Nor is it pre- 
 sumptuous to say, that this duty has been steadily and faith- 
 fully performed, and that, while the College has ever been recog- 
 nized as the leading institution of the kind in the country, it 
 has sought and embraced every opportunity for improvement 
 in the means and methods of instruction, introducing new 
 studies as the progress of science and intelligence has required 
 them, and striving at all times to elevate the standard of the 
 
education it conferred, as well as to adapt it to the wants and 
 demands of the community. 
 
 These statements are especially and strikingly verified in the 
 history of the College during the last forty or fifty years, and it 
 is not necessary to examine into the proofs of progress in re- 
 mote periods. The question does not turn so much upon what 
 the College has been, as upon what it now is, and what have 
 been its achievements and tendencies in recent times. If a 
 marked and decided progress can be shown to have taken place 
 within forty years, if it can be shown that great advances have 
 been made in intellectual culture, pecuniary resources, the in- 
 crease of the library, scientific cabinets, apparatus, and commo- 
 dious buildings, in the number of students and of instructors, 
 and that these have been chiefly efiected by the joint efforts of 
 the Corporation and the able and faithful men whom that Board, 
 in concurrence with the Overseers, have placed in the College 
 to manage its internal affairs and guide the studies of its pupils ; 
 in short, that the education given there is in all respects as good, 
 to say the least, as can be obtained at any institution in Amer- 
 ica ; — if these can be shown, it is believed that the Legislature 
 will be slow to yield assent to the assertions of the Committee, 
 that "the College has failed to answer the just expectations of 
 the people of the State " ; and that "the organization is such 
 that it must necessarily resist changes in opinion and modes of 
 instruction." 
 
 The number of students in a college, for a long term of years, 
 may perhaps be considered as in some degree a test of its pros- 
 perity or decline, and of the public favor which it enjoys. If 
 we go back forty years, that is, from 1806 to 1810 inclusive, we 
 shall find the average number of undergraduates annually for 
 five years, as shown by the catalogues, to have been two hun- 
 dred and eleven. During the last five years, the average num- 
 ber has been two hundred and eighty ; and the present year 
 there are two hundred and ninety-three. For the last few years 
 there has been a steady increase. This aspect of the College 
 certainly does not indicate a decline in public estimation, nor a 
 failure to answer the expectations of the people. It may be 
 said, that more students might be accommodated and instructed, 
 but the same is true of every other college in the country. Not 
 
one of them has ever yet turned away a student because its 
 halls or lecture-rooms were full. On the contrary, a large por- 
 tion of them are languishing for the want of students and 
 efficient public support. Yale College is the only one which 
 has a larger number than Harvard ; and the increase in that 
 institution is not to be ascribed to any novelty or changes in 
 the modes of instruction. No college has adhered more steadi- 
 ly to the old methods. 
 
 The establishment of new colleges has also had an important 
 effect on the increase of numbers in those of earlier dato Fifty 
 years ago, there were twenty-five colleges in the United States, 
 some of which then scarcely existed, except in name ; there are 
 now more than one hundred and twenty in full operation, — a 
 ratio of increase equal at least to that of the population. The 
 field from which our students came, at the beginning of the 
 century, embraced almost the whole South, and a large part of 
 the Middle and Northern States. There was but one other 
 college in Massachusetts, and that in its infancy ; and in fact 
 the only important rival of Harvard in New England was Yale 
 College. Dartmouth and Bowdoin were comparatively recent ; 
 and Brown University had but few students. There are now 
 fourteen colleges and universities in New England alone, three 
 of which are in Massachusetts, and all of them containing able 
 and learned instructors, and all sustained by the zeal, energy, 
 and liberality of a large body of friends. 
 
 At the South, within the period named, Maryland, Virginia, 
 North Carolina, South Carolina, and Georgia have successfully 
 striven to create or invigorate seminaries within their own 
 borders, which superseded the necessity of sending young men 
 to the North for a collegiate education. The Middle States 
 have also greatly enlarged the number of their colleges, there 
 being now nine in New York and ten in Pennsylvania, and 
 they have added to the extent and usefulness of those then in 
 existence. The Great West, which has been peopled almost 
 entirely since the beginning of the present century, has for the 
 most part supplied its own wants in this respect, and has fur- 
 nished very few students to our Eastern colleges. 
 
 Another circumstance, of much weight, tending to retard the 
 increase of numbers in Harvard College, has been the constant 
 
8 
 
 raising of the requisitions for admission. The object has been to 
 secure a higher and more solid education, by inducing young 
 men to remain at the academies till their minds were more ma- 
 ture, and their habits of application and discipline were better 
 established. This has doubtless been practised to a consider- 
 able extent in other colleges, although in some of them the 
 standard is still lamentably low. Harvard has always taken 
 the lead in this painful process, and has kept, in this respect, 
 really in advance of the spirit of the age. Neither parents nor 
 teachers have always been willing to accede to the demands of 
 the College in this matter. It has been necessary to create a 
 public opinion which should sustain the College, and to bear 
 with the temporary unpopularity which vigorous efforts against 
 the common current never fail to produce. 
 
 But those who have been active in this measure may well 
 congratulate themselves on their success. Forty years ago it 
 was no uncommon thing for boys of thirteen years of age to 
 enter college. Yery few have recently entered at Harvard under 
 sixteen, and the average age for several years has been seven- 
 teen. Nor have the students of Harvard alone been the gainers 
 by this process. The example has been followed by other in- 
 stitutions ; the standard of attainment is everywhere becoming 
 higher, and the public begins to understand and value its im- 
 portance. The oldest institution has always been the pioneer 
 in this path, and at the present time practically demands higher 
 requisitions than any other for admission within its walls. This 
 is as it should be, but, so far as mere numbers of students are 
 concerned, it necessarily produces an unfavorable effect. 
 
 Again, the expenses of living at Cambridge are unavoidably 
 greater than at any other place in the United States where a 
 college is established, except in one or two of the large cities. 
 The price of nearly every article, whether of necessity, comfort, 
 or convenience, is in fact the same as in the city with which it 
 is so much connected, and of which Cambridge almost forms a 
 part. The charge for instruction, and the incidental expenses, 
 are not materially higher than at other colleges, but the cost of 
 living, of the food, raiment, and fuel which every student must 
 have, is at least double that for which the same may be ob- 
 tained at many other institutions. In the face of all these dis- 
 
couraging circumstances, the young student, alarmed at the 
 requisitions of Harvard, tempted by the feelings of sectional 
 patriotism to remain in his own Commonwealth, and threat- 
 ened with the expense of a residence in a city where every thing 
 is comparatively dear, is often deterred from following his own 
 desire, and seeking the best education, and is induced to resort 
 to a nearer and cheaper college, when he would really prefer a 
 degree from Harvard. 
 
 These remarks are not founded on theory or conjecture. Ap- 
 plications are constantly made to the officers of the College, by 
 young men in various parts of the country, who express a strong 
 wish to become pupils, but who are finally discouraged by the 
 prospect of the expense, and are obliged by their narrow means 
 to resort to some other institution. And what renders this cir- 
 cumstance a double misfortune is, that these young men are 
 commonly in the class of those who are eager to obtain an edu- 
 cation for its own sake, and who would become an honor to the 
 College. Let any one fairly consider the whole case, and he 
 will be surprised rather that so many students continue to come 
 to the College, than that it fails to attract more. 
 
 Nor does this burden of expense bear upon the students only. 
 The professors, with their families, the other instructors, and all 
 persons employed in the internal operations of the College, must 
 be supported, and the salaries and compensation must be made 
 adequate to this support. The erection of new buildings, as 
 the progress of the institution requires them, the constant repairs 
 of old ones, the alterations for better accommodation, and the 
 wages of labor, must all be provided for on the same scale of 
 expense. The government of the College is certainly not an- 
 swerable for its location. Our forefathers thought proper to 
 plant it in Cambridge, then on the borders of a wilderness, now 
 a city ; it has grown up and flourished there ; and by no stretch 
 of wisdom or economy can its aff"airs be administered as if it 
 stood in Williamstown or Amherst. 
 
 It is needless to inquire whether its success could have been 
 achieved and maintained, to the extent it has been, without ex- 
 traordinary eff*orts in some quarter to procure the means, and 
 apply them properly. It is clear that tliis could not have been 
 done except by the unwavering and judicious course pursued 
 by those to whom the charge of the College has been confided 
 2 
 
10 
 
 for the last forty or fifty years. They have carefully sought, 
 in all quarters, for such additions to its pecuniary resources and 
 intellectual strength as should secure to its alumni the best ed- 
 ucation which the country could afford. To gain this important 
 end has been the aim of unceasing effort on the part of its gov- 
 ernment. 
 
 Although the result will not be questioned by any one who 
 is acquainted with the history of the College, yet it may be 
 useful to refer to some of the steps which have been taken to 
 procure it, and to show by what impulses the College has been 
 steadily moved onward, and for what reasons, as far as they 
 can be ascertained, new resources have been frequently and 
 liberally contributed. 
 
 In 1801 the entire body of instructors connected with the Uni- 
 versity consisted of six professors and four tutors. There was 
 a professor in each of the following departments ; — Divinity, 
 Mathematics and Natural Philosophy, Hebrew and other Ori- 
 ental Languages, Anatomy and Surgery, Theory and Practice 
 of Medicine, and Chemistry. The three medical professors were 
 employed on subjects belonging rather to professional than col- 
 legiate studies. They gave a short course of lectures only to 
 undergraduates. The professors of Divinity and Hebrew also 
 devoted a portion of their time to theological students, who 
 were resident graduates. It thus appears, that the instruction 
 to undergraduates, in all the departments, was given by seven 
 gentlemen, three professors and four tutors. 
 
 How does this compare with the provision made for these 
 studies at the present day ? There are now ten professors (be- 
 sides two temporary vacancies in Divinity and Latin), each at 
 the head of a separate department, four tutors, and three in- 
 structors in modern languages ; thus insuring thoroughness of 
 teaching in as many studies as can be usefully embraced in a 
 course which continues no longer than four years. Recitations 
 from text-books are regularly heard with great care by each of 
 these seventeen olRcers, as they doubtless will be by the others, 
 when the vacancies are filled. Moreover, seventeen courses of 
 lectures are given by different professors, during the year, to 
 the advanced classes, embracing a great variety of topics in 
 literature and science, and especially designed to exhibit more 
 comprehensive and practical views of the subjects which have 
 
11 
 
 occupied the students' minds, than can be obtained from the 
 text-books alone, and to connect the past with the present 
 state of knowledge. 
 
 This brief contrast is enough to show, that the College has 
 not stopped nor lingered by the way, that it has kept fully up 
 with the progress of the times, and that it has multiplied the 
 objects of study, and enlarged the means of instruction, to an 
 extent entirely adequate to every purpose of utility, and to all 
 reasonable demands of the public. In fact, the quality of the 
 instruction has improved to a degree which can scarcely be 
 explained to persons who have not made it a particular sub- 
 ject of inquiry, but which is fully understood and appreciated 
 by those who compare the attainments of their sons with 
 those made by themselves thirty, or forty, or more years ago. 
 
 The Committee express the opinion, that Harvard College 
 does not offer the proper advantages for qualifying young men 
 for the various pursuits of life ; that some desire ^' specific 
 learning for a specific purpose," and " would gladly resort to 
 an institution of the higher class, for a limited period of time, 
 if they could there obtain instruction which would make 
 them better farmers, or mechanics, or engineers, or mer- 
 chants " ; and that the compensation of the teachers should 
 depend, in some measure, on their success in drawing students 
 to their departments. And they intimate that the exclusion of 
 these objects is among the radical defects of the system pur- 
 sued at Cambridge. The Committee seem not to have been 
 aware, that every one of theili has received the express and 
 careful attention of the government of the College, the Cor- 
 poration, Overseers, and Faculty, and that every one has been 
 subjected to a fair and thorough experiment. 
 
 As early as 1826 the Statutes provided that the College should 
 be " open to persons who are not candidates for a degree, and 
 Avho desire to study in particular departments only." This 
 provision was thought, at the time, to promise large and bene- 
 ficial results, by enabling young men, who have not the means, 
 the time, or the inclination for pursuing a full college course, 
 to profit by such instructions in the various departments as 
 would fit them for their special vocations in life. The scheme 
 was carried into effect, and continued in operation twenty years. 
 Any student was allowed to select such branches as he might 
 
12 
 
 choose, and to receive the same instruction in them that was 
 communicated to the regular classes. The plan of the Com- 
 mittee in this respect was completely carried out. Every de- 
 partment of the College was open to young men who designed 
 to be farmers, merchants, mechanics, or to follow any other 
 pursuit. Each student was to have a diploma or certificate 
 when he left College, testifying to his attainments in the par- 
 ticular branches to which he had devoted himself. 
 
 After an experiment of twenty years, however, it was found 
 that there was no such public demand, and that the College 
 was providing for wants which did not exist. During that 
 period, forty-eight students only, of this description, applied 
 for admission, — an average of a little more than two a year, — 
 and these were mostly such as had failed, in the first instance, 
 in their examination for entering the regular college course. 
 A scheme so unfruitful in its results was at last abandoned, 
 three years ago. If it should be still supposed that provision 
 is necessary for specific and partial studies, it is now supplied 
 by the Scientific School, — the students of which, if they de- 
 sire it, have also the additional advantage of attending with- 
 out charge all the lectures given to undergraduates. 
 
 A plan somewhat similar in its aims, and applicable to all 
 the undergraduates, was devised in 1838, and immediately 
 put in operation. In consequence of suggestions from various 
 quarters, the recommendation of the professors themselves, and 
 the acts of the Corporation and Overseers, the students in all 
 the classes, after the Freshman year, were allowed to select 
 certain studies, and discontinue others. This was called the 
 Voluntary System, and was designed expressly to furnish spe- 
 cific studies, as far as possible, to those who desired them. If 
 a young man was preparing for any particular occupation in 
 life, he had an opportunity of storing his mind with the pre- 
 cise kind of knowledge requisite for his success. Moreover, 
 the compensation of the instructors was to depend, in part, on 
 the number of students drawn to the department of each, ex- 
 actly in accordance with the views of the Committee. 
 
 Such was the theory, and it was regarded as an auspicious 
 change by the friends of progress and reform. It was soon 
 discovered, however, that the project of compensating the in- 
 structors in proportion to the number of their pupils, especially 
 
13 
 
 in an institution consisting of established classes, was falla- 
 cious and impracticable. Students who volunteered into one 
 department necessarily deserted another, and this without any 
 regard to the talents and accomplishments of the respective in- 
 structors, but merely from the caprice of choice, and the at- 
 tractive character of certain studies compared with others. It 
 is more than doubtful, also, whether this theory of compensa- 
 tion is correct in principle. It tends to foment rivalships and 
 jealousies. It supposes the professor to act from mercenary 
 motives, or, at all events, it appeals to those motives as the 
 springs of action. He is driven to seek for numbers, and, to 
 gain these, he must aim at popular effect rather than deep and 
 thorough instruction. There are many ways by which men of 
 ability and learning can make more money than by teaching in 
 a college, and if they were not influenced by the less interested 
 and higher motive of a genuine love of letters or science, it 
 would be diflicult to find competent men to undertake that 
 important and responsible task. If you would have the ser- 
 vices of such men, you must insure to them a liberal support, 
 and then, with a proper reliance on their sense of character, 
 exact a faithful performance of their duty. 
 
 The voluntary system has been continued, with various 
 modifications from time to time, although experience early in- 
 dicated the necessity of dropping this particular part of it. 
 The plan, though matured with much reflection and care, has 
 not fully answered the expectations of its projectors. The 
 object was to enable students, after a certain degree of prog- 
 ress, to devote their time and attention to such studies as 
 would have a direct bearing on their future occupations in life, 
 the very thing considered so desirable by the Committee. It 
 has been proved in practice, however, that many young men 
 in college have not yet decided what occupations they are to 
 pursue, and that very few of those who have made this decis- 
 ion are competent judges of the particular kind of studies 
 best suited to their wants in this respect. It has hence ap- 
 peared, that the choice has not been so much influenced by any 
 forecast of the future, as by a present predilection, founded on 
 taste, an imaginary preference, or a careful calculation of the 
 relative amount of diligence necessary for maintaining a re- 
 spectable rank in the different departments. Not one in ten, 
 
14 
 
 probably, has asked himself whether he was to be a lawyer or 
 physician, a farmer or merchant. Great praise is due to the in- 
 structors for the zeal and perseverance with which they have 
 endeavored, for several years, to execute this plan, which a 
 large portion of them have much at heart, although it increased 
 their labors. It is still applied, in the two upper classes, to Lat- 
 in, Greek, Hebrew, the Modern Languages, and Mathematics. 
 
 Notwithstanding the comparative failure of these attempts to 
 introduce the changes and new methods approved by the Com- 
 mittee, the government of the College must nevertheless claim 
 the merit of having made the experiment seasonably, in good 
 faith, and with earnest efforts to secure success. But the fact 
 is, a liberal education, or an education which shall prepare a 
 man to discharge with respectability and intelligence the duties 
 of any station in which he may be placed, cannot be made up 
 of fragments, or a select portion of specific studies. The whole 
 mind must be trained, by taxing and invigorating its various 
 powers, implanting elementary principles, and establishing the 
 habits of thought and attention. This can be done only by a 
 long and continuous course of discipline, exercised in many dif- 
 ferent studies, each of which shall contribute its share to unfold 
 and strengthen the faculties, and prepare them for strong and 
 harmonious action. Such an education qualifies a young man 
 to enter upon life with a knowledge of himself, a confidence in 
 his own resources and in his ability to apply them effectively, 
 and with a consciousness that he deserves success, even if ad- 
 verse circumstances disappoint his hopes ; and such an educa- 
 tion, complete and thorough, may be acquired at Harvard Col- 
 lege ; and if it is not acquired, we are constrained to say it is 
 not the fault of its organization, government, or instructors. 
 
 Let us now glance at the progress of the College in multiply- 
 ing and extending its means of instruction. Within the last 
 forty years, the three largest and most expensive buildings have 
 been erected, — Holworthy Hall, University Hall, and Gore 
 Hall ; the library has accumulated from fifteen thousand to 
 fifty-seven thousand volumes, not including the law library, of 
 fourteen thousand ; the philosophical apparatus has increased 
 more than threefold in extent and value, having been gradually, 
 although but partially, adapted to the new discoveries and im- 
 provements in science ; the Rumford Cabinet, consisting of a 
 
15 
 
 large number and variety of models and machines for illustrat- 
 ing the application of the sciences to the useful arts, has been 
 wholly procured ; and the mineralogical cabinet, which, thirty- 
 five years ago, was comprised in a single case of moderate di- 
 mensions, now numbers about thirty-six thousand specimens, 
 arranged and classified, and so disposed as to be accessible to 
 every student who is inclined to pursue that branch of study. 
 
 Again, the professional schools of Divinity, Law, and Science, 
 which now constitute an integral part of the University, did not 
 exist half a century ago ; they are comparatively recent crea- 
 tions; and, in estimating the progress of the institution, its 
 means of public usefulness, and the labors, vigilance, and zeal 
 with which it has been managed, these are to be as much taken 
 into the account as the academical department. The Medical 
 School has also grown up from small beginnings to its present 
 state of prosperity. A regular and systematic course of instruc- 
 tion is given in all these schools, and four spacious edifices have 
 been erected for their accommodation ; Divinity Hall, Dane 
 Hall, Lawrence Scientific Hall, and the Medical College. The 
 new chemical laboratory, in the Scientific Hall, is very exten- 
 sive and complete, embracing all the recent improvements for 
 experimental investigations. 
 
 The number of professors in the advanced schools is thirteen, 
 the number in the academical department, when the vacancies 
 are filled, is twelve, making twenty-five in the whole. Nine- 
 teen of these professors reside in Cambridge, and give constant 
 instructions ; the six medical professors give their lectures at 
 the Medical College in Boston. The average number of all the 
 students residing at Cambridge, and immediately connected 
 with the University, for the five years preceding 1810, grad- 
 uates and undergraduates, was two hundred and twenty ; the 
 average number during the last five years has been four hun- 
 dred and forty-seven. At present, as may be seen by the cat- 
 alogue, the number is four hundred and eighty-one. In addi- 
 tion to these, the average number of students attending the 
 medical lectures for the last five years has been one hundred 
 and thirty-six ; making a total average of five hundred and 
 eighty-three. 
 
 It thus appears that Harvard College is now an institution of 
 more than three times the size that it was a half-century ago, 
 
16 
 
 containing nearly three times the number of students, and more 
 than three times the number of instructors, and giving an ap- 
 propriate education in the most important professions, as well 
 as conducting the preparatory studies of the more youthful class 
 of pupils in a manner entirely adapted to the wants and wishes 
 of the public ; and, moreover, to assist in attaining these ends, 
 the libraries and cabinets have been increased in a like ratio, 
 and seven commodious buildings, two of stone and five of brick, 
 have been erected. 
 
 Nor ought another prominent and valuable adjunct to the 
 University to be overlooked in this general outline. The Astro- 
 nomical Observatory is of recent date, having originated in the 
 enlightened zeal of a few scientific gentlemen, cooperating with 
 the ardent efforts of the Corporation, and having been establish- 
 ed by generous contributions from the patrons of the enterprise, 
 and the noble bequest of one hundred thousand dollars by a 
 single individual. Besides the general purposes for which the 
 Observatory was designed, the Director and his assistants give 
 instructions in practical astronomy, with the use of the instru- 
 ments, to such special students as wish to profit by these great 
 advantages. Observatories, so useful in improving the art of 
 navigation and unfolding the sublime mechanism of the heav- 
 ens, have generally been the work and peculiar care of the 
 governments in European countries, and have added largely to 
 their renown in the estimation of the world ; and the Observa- 
 tory of Harvard College, created by private contributions, will 
 be regarded by every enlightened citizen as an object of just 
 and honorable pride to the State, as well as to the institution 
 of which it makes a part. 
 
 We may now inquire in what way, by what resources and 
 efforts, and by whose agency, these great, expensive, and last- 
 ing improvements have been accomplished in so short a period ? 
 They are to be ascribed mainly to the wise and energetic meas- 
 ures adopted and steadily pursued by the Corporation, as the 
 acting and responsible board. The presidents of the institution, 
 and the prominent men who have been successively associated 
 with them, such men as Theophilus Parsons, John Davis, 
 Christopher Gore, John Lowell, William Ellery Channing, 
 William Prescott, Joseph Story, and Nathaniel Bowditch, have 
 spared no exertions, individually and in concert, to procure 
 
17 
 
 from every quarter, public and private, the necessary means, 
 without which even the first steps could not have been taken. 
 Sometimes the Legislature was appealed to, and at all times 
 individuals of liberal minds and a generous spirit were sought 
 out, both alumni and others, who, from motives of general be- 
 nevolence, or a particular attachment to the College, might be 
 induced to contribute of their abundance, either by donation or 
 bequest, to the relief of its acknowledged or anticipated wants. 
 
 These remarks may be particularly applied to the seventeen 
 years of Dr. Kirkland's presidency, for a greater or less portion 
 of which period the eminent gentlemen above named were 
 united with him in the Corporation. To the well known per- 
 sonal character and influence of the President himself may be 
 traced a large proportion of the benefactions so freely made 
 daring his official connection with the College. His associates 
 and successors have labored successfully in the same field. 
 More than seven hundred thousand dollars in value have been 
 given to the College since the year 1800, besides the proportional 
 share of the grant made to the several colleges in the Common- 
 wealth by the Legislature. A large part of this amount has 
 been money, bestowed for important foundations, and a very 
 considerable proportion has consisted of books, instruments, and 
 collections of various kinds. In procuring this large benevo- 
 lence, while much must be attributed to the generous impulses 
 of the givers, much is also due to the disinterested zeal, the di- 
 rect solicitations, and personal influence of the President and 
 Fellows, which stimulated and confirmed those generous im- 
 pulses, and guided them to the end so happily attained. 
 
 This is not mere conjecture, but a well established fact, 
 founded on abundant testimony. Ninety-four thousand dollars 
 were given by one of the gentlemen named above. It was 
 by the eff'orts of President Kirkland and other members of 
 the Corporation, that two subscriptions, one in 1817, the other 
 in 1826, amounting together to about fifty thousand dollars, 
 were collected from individuals in various parts of the Common- 
 wealth for the benefit of the Theological School ; and it was by 
 their joint influence, that foundations for at least four of the 
 five new professorships in the undergraduate department were 
 provided during that period. To similar efl'orts of his suc- 
 cessors, and their coadjutors in the Board, we owe a fund 
 3 
 
18 
 
 of twelve thousand dollars for beneficiary students, of twen- 
 ty-one thousand dollars for the Library, of twenty thousand 
 for astronomical instruments, of one hundred thousand for the 
 maintenance of the Observatory, often thousand for the erection 
 of a President's house, a donation of fifty thousand dollars for 
 practical instruction in the sciences, a bequest of fifty thousand 
 for the aid of beneficiary students to take effect hereafter, and 
 another bequest of more than three hundred thousand dollars, 
 one half of which at a future day is to redound to the use of 
 the University. 
 
 While these contributions do honor to the memory and char- 
 acter of those by whom they were made, they are at the same 
 time a tribute to the fidelity and trustworthiness of those who 
 received them : and an acknowledgment of the value, the suc- 
 cess, and fair prospects of the institution over which they pre- 
 sided. They are certainly a proof of an entire confidence, not 
 only in the men to whom these munificent gifts were immedi- 
 ately intrusted, but in the organization and stability of the 
 Board, to whose management the donors believed them to be 
 for ever consigned. 
 
 The result of the whole is before the public. The position 
 of the College, inadequate as are its funds for carrying out its 
 comprehensive purposes, speaks strongly for the labors of love 
 conferred upon it from so many quarters, for the successful ef- 
 forts of its immediate guardians and its able professors, for the 
 favorable opinion entertained by so many intelligent patrons, 
 and for the general approbation of its system of instruction, in- 
 dicated as well by the growing number of its pupils, as by the 
 course pursued at nearly every other college in the country, 
 where the same kind of instruction is given, in the same way, 
 and with similar views of its utility. 
 
 It is for the Legislature to decide, whether any thing more or 
 better could have been reasonably expected from Harvard Col- 
 lege, during the last forty or fifty years, than it has actually 
 accomplished. Could its education have been advanced beyond 
 its present point, even if such advance were proved to be desir- 
 able, or could its number of pupils have been expected to be 
 larger, without further pecuniary aid for that special purpose ? 
 Could a greater confidence have been shown in the character 
 and merits of the College by a discerning and liberal public, or 
 could a more successful fidelity in the preservation and man- 
 
19 
 
 agement of its resources have been exerised by a body of men 
 under any organization during so long a period ? Will it not 
 be conceded by every one, that a more prompt and efficient re- 
 sponse to what was regarded by many as the voice of public 
 sentiment could not have been made, than has repeatedly been 
 done by introducing important changes in the modes of instruc- 
 tion, and valuable additions to the subjects taught ? And is not 
 the organization of the institution, after a trial of two centuries, 
 entitled to the approval and respect of the people of Massachu- 
 setts for the results it has produced, and for the pledge it affords, 
 by these results, of a constant improvement commensurate with 
 the progress of the country ? 
 
 It seems to have been taken for granted by the Committee, 
 that, if the Legislature had the legal and constitutional power 
 to change the organization of the College, or, in other words, to 
 effect a radical alteration of the Charter, they would undoubt- 
 edly do so as a matter of expediency. The facts briefly enu- 
 merated above are confidently appealed to, as showing at least 
 the great improbability that any other mode of governing the 
 College would have produced a greater amount of good to the 
 community, or have been more entitled to the entire approbation 
 of the Legislature, than the one which has been established and 
 practised for so long a time. Change is not always improve- 
 ment, and it is seldom apt to be such, when a system which has 
 stood the test of experience, fulfilled all reasonable hopes, and 
 secured from its agents a faithful discharge of duty, is unhinged 
 and deranged by theoretical amendments. 
 
 The predecessors of the present board of President and Pel- 
 lows have been well known to the public ; their character and 
 intellectual qualities have placed them high among the first 
 men of Massachusetts. Better men could not have been found 
 to administer any system, for the plain reason that there were 
 no better ; and if they have failed to answer the expectations of 
 the people, it may safely be affirmed, that these expectations 
 are not likely to be answered by novel devices or untried forms. 
 We can perceive no such virtue in mere organization, as the 
 Committee would seem to imagine. Every system, whatever 
 its organization, must be intrusted to individuals, and be exe- 
 cuted by them, according to the measure of their judgment and 
 ability. The best feature in any system is that which secures 
 
20 
 
 a judicious selection from the best men for carrying it into 
 eflect. If the past history of the College proves that object to 
 have been attained, for a long term of years, nothing higher 
 can be reached, and the motive for change does not exist. 
 
 II. We now pass to the second general topic of the Commit- 
 tee's Report; the proposed alteration of the Charter, by enlarging 
 the number of members in the Corporation, and providing for 
 their election by the Legislature. 
 
 The present Board consists of seven members, including the 
 President and Treasurer : and vacancies are filled by the Board 
 itself, subject to the negative of the Overseers. Not satisfied 
 with this number, the Committee recommend fifteen, without 
 assigning any special reason for their choice ; and they propose 
 that one third of this number shall be elected by the Legislature 
 every two years, thus making the term of office for each mem- 
 ber six years : except the President and Treasurer, who, in 
 regard to the mode of their election and tenure of office, are left 
 on the old basis. 
 
 Since there is no magic in numbers, it is not probable, that, 
 if a new charter were now to be granted, any person would 
 insist that seven individuals constitute the precise and only 
 number to Which so high a trust can safely be committed. We 
 are contented with this number, because it has proved itself 
 perfectly adequate to every purpose for which the Board was 
 constituted : and we prefer to retain it, because change in a long 
 and well established usage, when its practical results have been 
 all that could be desired, is always of doubtful issue and hazard- 
 ous, and because there are substantial reasons why the duties 
 now incumbent on the Board can be better performed by a small 
 number than a large one. 
 
 By far the most weighty and responsible trust reposed in the 
 Corporation is that of the funds. The entire history of the Col- 
 lege proves this trust to have been scrupulously and most satis- 
 factorily fulfilled from its very foundation. The Committee of 
 the State Convention in 1S21, appointed to report on the consti- 
 tutional rights and privileges of Harvard College, looked care- 
 fully into this matter. They say, — '-As to the care and man- 
 agement of the funds, it is believed to have been cautious and 
 exact, in a very high degree. No delinquency, to the amount of 
 a single shilling, is known to have existed in any member of 
 
21 
 
 the Corporation, or any of their agents or servants, from the time 
 of the first donation, in 1636, to the present moment." This 
 language is strong and conclusive, and it may be applied with 
 equal force to the period of thirty years since the report was 
 made. 
 
 The exactness with which even small sums have been pre- 
 served, and appropriated to their precise objects, is remarkable. 
 The whole amount of the donations for beneficiaries yields an 
 income at present of nearly fifteen hundred dollars, which is 
 annually divided among meritorious and indigent students. 
 This amount is composed of thirty separate donations, made at 
 different times ; the first of them just two hundred years ago. 
 Five of these donations remain at the same amount as when 
 they were originally given ; each of the other twenty-five has 
 considerably increased. If the examination were extended to 
 the larger grants, the results would be equally favorable. And 
 it is a matter of just surprise, reflecting the highest credit on 
 the Corporation, that, while for a hundred years in the Colonial 
 times and during the Revolution, the currency was in a state of 
 constant and extreme fluctuation, the integrity of the College 
 funds should have been preserved with so much exactness. Is 
 it likely that fifteen men would have done the business better ? 
 More entire success they could not have attained. 
 
 No maxim in human affairs is better established, than that 
 men acting together in important trusts will feel their responsi- 
 bility in proportion to the smallness of the number of those with 
 whom it is to be shared. On this principle we may probably 
 account, in great part, for the excellent management of the 
 seven men who have been responsible for the College funds. 
 All these men have stood prominently before the public, and 
 each has regarded his personal character and reputation as 
 deeply involved in the direction of the aff'airs submitted to the 
 counsel and guidance of the Board. Moreover, they have had 
 no private ends to answer, no compensation for their services, 
 and no opening prospect of future advancement or benefit 
 arising from any plans they might devise, or any measures 
 they might adopt. If this responsibility had been divided 
 among double the number, no one can suppose that it would 
 have been felt with equal weight by the individual mem- 
 bers, or have excited them to the same degree of activity and 
 caution. 
 
22 
 
 In a practical view, also, the number proposed by the bill, 
 selected from various and even remote parts of the State, as 
 suggested by the Committeej would be attended with embarrass- 
 ment and serious difficulty. The regular and necessary busi- 
 ness of the University requires frequent meetings of the Corpo- 
 ration. There is a stated meeting once a month, and on an 
 average a special meeting as often, and sometimes much oftener. 
 Is it to be expected, that fifteen men, scattered over the Com- 
 monwealth, or a majority of them, will give their time, and 
 neglect their private affairs, to come to Boston or Cambridge 
 once a fortnight, at their own expense, to attend these meet- 
 ings ? Such a thing cannot be presumed. Meantime, the work 
 must be done ; the College cannot stop ; neither its pecuniary 
 interests nor its internal operations can be allowed to sufi'er 
 derangement. The effect would be to intrust the essential 
 business to a committee, consisting of members residing near at 
 hand, who could give their attendance, and of a smaller num- 
 ber probably than that of the present Corporation : and when a 
 full board should be occasionally brought together, they would 
 do little more than confirm the acts of their agents. Whether 
 this would be an improvement on the ancient and existing 
 system, the wise can judge. 
 
 A reason assigned in the Report for enlarging the Corporation 
 is, that it '• would bring to the government of the College a 
 variety of taste, knowledge, and opinion, corresponding to the 
 sentiments of the people of different sections of the Common- 
 wealth." Now, let us ask what is wanted as a preliminary 
 guide for the judicious and effective management of a literary 
 institution. Is it not to ascertain, as far as it can be done by 
 observation, inquiry, and reflection, what is the state of en- 
 lightened public opinion on this subject ? Is a man, because 
 he is an inhabitant of a distant county, under more favorable 
 circumstances for ascertaining and understanding this point ? 
 Public opinion on such a subject is not the local sentiment of 
 a pai'ticular district, but the general voice of mankind. What, 
 then, is to be gained, in this respect, by collecting men together 
 from various and remote parts of the Commonwealth ? As to 
 "a variety of taste, knowledge, and opinion,"' it can scarcely 
 be appealed to as an element of harmony, or a promoter of wise 
 counsels and united action. It is more likely to be fraught 
 
23 
 
 with sectional prejudices, and to breed discord, delay, and con- 
 fusion. A college system must be uniform, and it cannot be 
 bent to suit the varying opinions and tastes, the social habits 
 and peculiar desires, of all the people in the State, for the ob- 
 vious reason that these are not the same in different places, nor 
 steady anywhere. 
 
 We do not perceive any advantage, therefore, that can be 
 derived from the proposed combination which is not already 
 possessed ; but we can clearly discover many evils with which 
 it must inevitably be attended. 
 
 It is made an objection to the present form of the Corporation, 
 that the office is " for life " ; and the Committee say, in the 
 same strain of objection, that " perpetuity of office and opinion 
 is contrary to the genius of our institutions." Let us see what 
 has been the official life of the Fellows in the Corporation. 
 What kind of perpetuity have they enjoyed ? During the last 
 half-century the average term of service in the Board has been 
 ten years and three months. A few have served longer ; others 
 for a considerably shorter period ; some for one or two years 
 only. The bill provides that the Fellows shall serve six years. 
 Is the difference worth considering ? 
 
 Again, it has been proved in practice, that new elements have 
 been constantly brought 'into the Board, thereby introducing a 
 variety of ideas and a renovated spirit of activity. On an 
 average there has been a new member as often as once in two 
 years, being a change of one fifth of the Fellows. The bill 
 provides for a change of one third in two years. Is this dif- 
 ference worth considering ? 
 
 Perpetuity of opinion is a phrase not easily to be defined or 
 comprehended in the present age of intellectual progress and 
 triumphs. It would require something more than the forms of 
 a corporation to arrest the current of opinion, or resist its influ- 
 ence upon the mind. Whatever meaning the Committee may 
 attach to this phrase, however, we have adduced abundant evi- 
 dence above to show that the Corporation of the College have 
 adhered to no rigid system of opinions, but have yielded freely 
 to the general sentiments of the community, sought light wher- 
 ever it could be found, and applied it in every way practicable 
 for the prosperity and continued improvement of the institution. 
 It may safely be asserted, also, that mere organization at the 
 
24 
 
 present day. in these United States, is not a contrivance by 
 Avhich opinions can either be perpetnated or controlled. 
 
 The objections to that part of the bill which provides a remedy 
 for the imaginary danger of the existing mode of filling up the 
 vacancies in the Corporation, by transferring the elections to the 
 Legislatnre. are too obvions to need an elaborate examination. 
 The great object to be sought, in an election to an office, is to 
 obtain the services of a man who. by his ability and character, 
 is the best qualified to discharge its duties. If this object is 
 gained, the form of doing it is of little importance : and a small 
 number of electors who understand the nature of the office, and 
 whose relations to it leave no room for personal bias, is much 
 more likely to make a judicious choice than a large number en- 
 tirely unacquainted with the subject. This has been complete- 
 ly verified in the history of the Corporation. The Board has 
 been constantly filled by competent men, discharging their duty 
 faithfully, and commanding the favorable regards of the public. 
 Is it probable that better men would have been chosen by a 
 different form of election ? 
 
 This matter was doubtless maturely considered when the 
 Charter was made, and there v.'ere wise men in those days as 
 well as in later times. A principle so vital as that of the tenure 
 of office, and security for its continuance, could not have been 
 overlooked. And it is remarkable, that, in the six new charters 
 proposed between the years 1672 and 1700. in some of which 
 the Corporation was enlarged, the tenure of office and mode of 
 election were precisely the same as prescribed in the first Char- 
 ter. This fact would seem to furnish conclusive evidence, that, 
 whatever changes in other respects might have been thought 
 advisable, this particular feature was deemed to be of radical 
 importance. ^N'or have any facts been produced from which 
 even an inference could be drawn that an election by the Leg- 
 islature, or any other body of men distinct from the Corpora- 
 tion, was proposed. 
 
 Furthermore, if the bill were put in practice, it would invade 
 the rights and annul the powers of the Overseers, unless it is 
 intended that they shall confirm the appointments of the Leg- 
 islature. By the Charter, no election is valid till it has received 
 the assent of that Board : and, by the rules of the Board, this 
 assent can be given only at a stated meetmg of its members, a 
 
25 
 
 majority of whom are chosen annually by the people or their 
 representatives. The Corporation has in effect only a nominat- 
 ing power in the election of its own members, as well as of 
 all other officers. No elections can be made, no degrees can be 
 conferred, without the concurrence of the two Boards. In the 
 exercise of power, the Corporation of Harvard College is under 
 much heavier restraint than is customary in other similar in- 
 stitutions. In Williams College, for instance, and we believe 
 in nearly all the colleges in the country, there is but one board, 
 consisting of members who hold perpetual succession, fill up 
 their own vacancies, make all appointments, and transact the 
 important business v/ithout the control or advice of any other 
 authority. 
 
 Since custom and large experience have almost universally 
 sanctioned this mode of constituting college boards, it must 
 follow, that, in the opinion of considerate and practical men, it 
 rests on sound principles, and is, on the whole, the best that can 
 be devised. If it is not free from defects, the same may be said 
 of every other imaginable plan ; and it has doubtless been be- 
 lieved that these are greatly overbalanced by the superior ad- 
 vantages it affords, by the stability and permanence of action 
 which it insures, and by the steady confidence which it inspires. 
 If the same advantages could be made to result from a different 
 form of election, there might be no harm in the experiment ; 
 but even then no valid reason could be given for a change. It 
 is not wise to hazard the loss of a good thing w^ith the doubt- 
 ful hope of finding another equally good. 
 
 An election by the Legislature, at short intervals of two 
 years, certainly does not promise the security absolutely essen- 
 tial for the consistent action and permanent success of such a 
 board. If one thing more than another is of vital importance 
 to the prosperity of a literary institution, it is that it should be 
 kept aloof in all its connections from the agitating influences 
 which pervade the community from time to time, enlisting 
 men's passions, and often biasing their opinions and perverting 
 their judgment. Looking to experience, and to the nature of 
 our political organization, can any one doubt that the elections 
 would turn on other points than those of the highest qualifica- 
 tions for the office ? Would not each party, as it should have 
 the ascendency, take care to supply the vacancies from its own 
 4 
 
26 
 
 ranks ? These questions cannot but meet an affirmative answer 
 in every mind. 
 
 What could be hoped from the wisdom or unanimity of a 
 board consisting of materials as dissimilar as would in this way 
 be soon brought together? With good intentions as individ- 
 uals, how long would a body of men thus organized, possess- 
 ing conflicting ideas on many prominent topics, and acting upon 
 different principles in many points of moment, be likely to com- 
 mand the confidence and respect of the public ? Fluctuating 
 counsels would lead to feeble measures, and contending opinions 
 would foment discords and generate instability. Would the 
 sagacious men who so largely contributed at different times to 
 the aid of the College have intrusted their munificent benefac- 
 tions to the guardianship pf a board thus constituted ? 
 
 There is still another aspect scarcely less unfavorable. Men 
 who have been elected on political considerations will easily 
 persuade themselves that they must support their friends ; and 
 we shall have professors and other officers chosen under the 
 same influences, till the College itself will become an arena of 
 party conflicts, instead of a quiet retreat for the discipline of 
 youth in the learning and habits which are designed to qualify 
 them to discharge, in the years of manhood, the duties of good 
 citizens and good men. 
 
 But we will not extend our remarks on this point. Its bear- 
 ings are easily traced, and cannot fail to make a strong im- 
 pression. 
 
 Having thus presented such a statement of facts, and such 
 reasons as in our opinion render it in the highest degree inex- 
 pedient to change the organization of the College government, 
 especially in the manner proposed, it remains only to urge upon 
 the attention of the Legislature the considerations that arise 
 from the legal and constitutional view of the subject. 
 
 III. In regard to the legality of the proposed measure, your 
 memorialists have given to the act and the Report accompany- 
 ing it, and also that therein referred to, made by a Committee 
 appointed for the like purpose at the preceding session (Senate 
 Doc. 158), careful consideration, and respectfully ask leave to 
 submit the following considerations concerning it. 
 
 As the act contains no provision making the assent of the Cor- 
 poration of any consideration, and no communication was made 
 
. 27 
 
 concerning it to any member of the Corporation, and no opportu- 
 nity given for any hearing upon the charges made, or the expe- 
 diency of the change, and the speech delivered by the Honor- 
 able Chairman in support of the bill indicated that no regard 
 was intended to be had to the assent or dissent of the Corpora- 
 tion, the memorialists are called upon to consider the act as one 
 intended to be imposed upon them, by virtue of the absolute 
 power of the Legislature, irrespectively of any cooperation or 
 consent on their part. 
 
 The act proposed, although entitled an act relating to Har- 
 vard College, and purporting to effect merely a change in the 
 number of the corporators, and the manner of their election, is, 
 in fact and legal effect, an act for abolishing the present Corpo- 
 ration by a seizure of its franchise, and a confiscation of its es- 
 tates, for the purpose of a disposal of them to other personSj at 
 the pleasure of the government. It is an act to enforce upon 
 the Corporation a charter essentially and most materially dif- 
 fering from that under which its estates have been acquired, 
 held, and managed for two centuries ; under which public and 
 private donations, to an extent wholly unapproached in any 
 other like institution in this country, have been made, with 
 constantly increasing liberality and confidence, to the present 
 day ; and under which the College has maintained a uniform 
 and unquestioned rank, in regard to its means and standard of 
 education, certainly not surpassed by that of any other on this 
 side of the Atlantic. 
 
 Your memorialists, as the trustees and representatives of the 
 College, have legal rights to this Charter ; and under it have 
 acquired and are the sole owners of the estates held by them 
 for the purposes prescribed by it. The proposed act, if passed, 
 will deprive them of both. It abolishes the Charter held by 
 them, and substitutes another against their will. It seizes the 
 estates from their possession and control, and places them in 
 the hands of other persons, in whose appointment they have no 
 voice. It transfers the right and power of governing the College 
 from those who now hold it, in the manner prescribed by the 
 Charter, to other persons. It takes the management and appli- 
 cation of the funds placed in the hands of particular trustees 
 by the donors, with power to elect their successors, and to 
 whom numerous benefactors have intrusted munificent gifts, in 
 
28 • 
 
 the faith that such mode of appointment and succession would 
 be perpetual, and commits them to the guardianship and con- 
 trol of persons to be appointed by those who may from time to 
 time be members of the Legislature. It annihilates the most im- 
 portant function and duty of the Board of Overseers, by taking 
 from them the power of rejecting persons elected to the Corpo- 
 ration. It is a virtual declaration of forfeiture of a franchise, and 
 of estates held under it. without trial or judgment. It is based 
 upon the assertion of power which, if it may enect this change 
 to day. ma}' at any future time make the election of members 
 and officers of the Corporation annual, or make any other 
 change at pleasure. In short, the act is one for the destruction 
 of the existing Corporation, and the organization of another in 
 its place, upon wholly different principles and foundations. 
 
 Believing that the Chapter of the College was granted and 
 carefully framed for the chief, among other purposes, of giving 
 to it. and the estates that should be granted, and the offices of 
 membership and instruction that should be held under it. that 
 permanency and security from agitations and dangers, by 
 which alone its great and beneficent purposes can be accom- 
 plished : and that the generous donations which constitute by 
 far the greatest portion of its funds were bestowed upon faith 
 in the perpetuity of the Charter, and that none can hereafter 
 be hoped for. if it be subject to any material alteration with- 
 out the consent of the Corporation : — your memorialists con- 
 fidently trust, that changes so entire as that now proposed will 
 not be made without the maturest deliberation, and a profound 
 conviction of their legality as well as their exp^ediency : and, 
 in availing themselves of the opportunity thus afforded, of pre- 
 senting their views upon a subject of such grave importance, 
 beg leave to express their appreciation of that sense of justice 
 which actuated the Honorable House in permitting them to 
 be thus heard, before passing the decree of condemnation and 
 forfeiture which the passage of the act must import. 
 
 Whatever may otherwise be the demerits of your memorial- 
 ists, they entertain a becoming sense of their duties and respon- 
 sibilities as trustees of a great institution, established for the 
 public good, of high importance to the best interests of the 
 Commonwealth, and which; hitherto at least, has done much 
 for the promotion of her vrelfare and glory ; and of the respect 
 and deference which are due to the opinions and wishes of the 
 
29 
 
 people, manifested by their delegates in the Legislature. Nor 
 would they be disposed to oppose any reform thus desired, in 
 the organization of the Corporation, consistent with their con- 
 victions that such was required by its interest, and their belief 
 in their obligations to its benefactors, upon any grounds of 
 merely legal right. Although the law deems the franchise of 
 each member of this Corporation a thing of value, and a subject 
 of property, yet there is no member of the Board who does not 
 know that it is a severe burden, for bearing which there is no 
 compensation except a sense of public duty performed, and from 
 which it would be a sensible and great relief to be honorably 
 discharged. But, as trustees of the College, holding its Charter 
 and estates, and as its legal governors under the supervision of 
 the Overseers, — which Charter, estates, and government have 
 been placed in their keeping by virtue of that Charter, to be 
 holden, administered, and transmitted pursuant to its provis- 
 ions, and most of which estates were bestowed in the faith that 
 such tenure and administration were unalterable, unless by the 
 consent of the trustees for the time being, — your memorial- 
 ists would be false to themselves and their trust, should they 
 acquiesce in any change in the Charter, which their own sense 
 of duty and expediency does not sanction. Nor can they be 
 considered wanting in humility, or due deference to the opin- 
 ions of others, however elevated in rank and power, in thus 
 making their own convictions essential to their assent ; since 
 the obligation of judgment and of action, according to their 
 conscientious belief upon that subject, is one of the first duties 
 required of them by the nature of the trust, and from which 
 they have no honest or honorable escape. With these feel- 
 ings, and in discharge of this duty, they proceed respectfully 
 to present their views upon the legal question now raised. 
 
 The alleged power of the Legislature to enact this bill is rep- 
 resented, in the Report of the Committee, to be derived from 
 two sources ; first, the rights of the State as founder of the 
 College ; secondly, the rights of the State recognized in the 
 proviso to the first section of the fifth chapter of the Constitu- 
 tion. And the rights of the State as founder are stated to be 
 of two kinds ; namely, legislative authority to make all need- 
 ful statutes for the government of the College ; and visitatorial, 
 or judicial authority, to examine the conduct of all persons 
 intrusted with the management of the institution. 
 
30 
 
 These propositions of the Committee, which are stated in 
 their Report so senerally as to make it difficult to comprehend 
 their meaning and extent, are, however, more fully developed 
 in the speech delivered by the Honorable Chairman in support 
 of it, and to which reference therefore is necessary, as an ex- 
 position of the principles involved in them, and relied upon as 
 authorizing the passage of the bill, and which are summed up 
 in the following manner : — 
 
 1. The State is the legal founder, having bestowed the first 
 benefaction upon the College. 
 
 2. The institution is public, and therefore subject to the pub- 
 lic will, which can be expressed only through the Legislature. 
 
 3. If the institution, legally considered, be private, the State, 
 as the founder, being immortal, may regulate and govern it, as 
 an individual may regulate and govern his own charity during 
 his natural life. 
 
 4. That, in an eleemosynary institution, the law will notice 
 no rights but those of the founder, and therefore, in this case, 
 there is no interest adverse to the interests of the State. 
 
 5. That the corporators have no private legal interests in 
 the oflices which they hold ; that they are the agents of the 
 State for the distribution of its charity, and may be removed 
 at the pleasure of the Legislature. 
 
 8. That the proviso in the Constitution of 17S0 secures, in 
 the Legislature, power over the Corporation and Board of 
 Overseers of Harvard College, which may be exercised Avith- 
 out the assent of any other body. 
 
 The sixth, seventh, and ninth are omitted, as immaterial in 
 considering the question of legal right. 
 
 Your memorialists believe, that no more forcible exposition of 
 the principles that would be involved in the enactment of this 
 bill could be suggested, than the bare recital of these proposi- 
 tions, upon which the authority of the Legislature to pass it is 
 thus avowedly rested. They are, in express terms, or by neces- 
 sary implication, that the College has no rights nor property, as 
 against the State ; that its ofiicers hold all its estates merely as 
 agents of the State, and subservient to its will ; that those es- 
 tates constitute a charitable fund belonging exclusively to the 
 State, in which no other body or person has any right ; and that 
 the Legislature, as the sole expounder of the public will, may 
 
31 
 
 abolish the Corporation, dismiss its officers, take possession of 
 its funds, and dispose of them at its pleasure. It is true, that 
 the Report does not contain the direct declaration that the Leg- 
 islature may convert those funds to purposes other than those of 
 education ; and that, in one part of the speech referred to, that 
 power appears to be disclaimed. But it is self-evident that, if 
 the propositions stated in it, as above cited, are maintainable, 
 the State has the legal right to terminate such use of its own 
 property at pleasure, and divert its charitable fund to any other 
 use, which the Legislature may at any time think more condu- 
 cive to the public good. 
 
 Both the Committees who have had this subject under con- 
 sideration have rested upon the history of the College, and of 
 the Colonial, Provincial, and State legislation concerning it, as 
 indicating and illustrative of the powers now claimed to alter 
 the Charter of the College, and control its affairs. But your 
 memorialists respectfully submit, that they have studied the 
 history of the College, and of the Commonwealth and its past 
 and present jurisprudence, in vain, if the principles upon which 
 such power is asserted have any sanction or foundation in either 
 of them. 
 
 The original design of the College is unquestionably found in 
 the act of the Colonial Legislature of 1636, by which it was 
 resolved to give '' £ 400 towards a school or college ; £ 200 
 to be paid in the course of the ensuing year, and £ 200 when 
 the work should be finished ; and that the place and manner of 
 building should be determined at the next Court " ; and, by 
 the consequent order in 1637, that the College should be at 
 Newtown, and the appointment of twelve persons " to take 
 order for a College at Newtown " ; which will stand for ever, a 
 monument alike to the piety, intelligence, and patriotism of 
 the founders of the Commonwealth. 
 
 The poverty and financial condition of the Colony were such, 
 however, that no donation was made in pursuance of this re- 
 solve, until after the erection of the College, if it ever was paid ; 
 of which, to say the least, there is no proof whatever, unless 
 the gift of the ferry, and the contributions of the Colonial gov- 
 ernment in annual grants, subsequently made, were considered 
 and received as in fulfilment of this promise. 
 
 But, in the ensuing year, John Harvard died, bequeathing to 
 
32 
 
 the College his library, then of great value, and one half of the 
 residue of his estate, which was large for those times. And, 
 with the means thus acquired, and private donations, including 
 a receipt from the ferry, and two rates from Cambridge and 
 Watertown, in 1639, the College edifice was erected ; there be- 
 ing no reason to believe that the site for it had been selected 
 until after this bequest ; and the first money received and ap- 
 propriated for its construction, and which approached to nearly 
 one half of the whole cost, was from the hands of the adminis- 
 trator of John Harvard's estate, from whom was also received 
 the valuable collection of books and manuscripts which first 
 graced its walls, and became the foundation of that library 
 which still continues the most valuable and extensive in the 
 Commonwealth. 
 
 Upon knowledge of this munificent bequest, by means of 
 which the Colonial government was enabled to commence and 
 carry into effect its generous and patriotic design, they, in token 
 of their gratitude, and in honor of his memory as its efficient 
 founder, immediately ordered that the College should be named 
 Harvard College. No declaration or act could be more expres- 
 sive or conclusive of the opinion then entertained by the gov- 
 ernment, or of their design for ever to establish the right of John 
 Harvard to be considered the founder of the institution, than 
 this baptism of it with his name. And no man, even upon the 
 definition given by the Committee, had stronger grounds for 
 claiming to be so esteemed. Nor until recent times has his 
 claim ever been questioned. On the contrary, the Colonial gov- 
 ernment, at a subsequent period, in a public address, in the year 
 1661, expressly designate John Harvard as the principal found- 
 er of the College. It might, under other circumstances, seem a 
 needless criticism to add, that the term founder can have no 
 other meaning than that of first or original donor or benefactor, 
 and can with no propriety be applied to any subsequent one. 
 
 In 1640, the Legislature granted to the College the ferry be- 
 tween Boston and Charlestown. 
 
 In 1642, the first Board of Overseers was created, with powers 
 to make orders and rules for the government of the College, and 
 to manage and dispose of its lands and revenues, and of all 
 gifts to the use of the College, or the members thereof And, up 
 to the year 1650, the property given to the College was vested in 
 
33 
 
 the Colony, and subject to its management and disposal, directly 
 by the Legislature, or through the instrumentality of the Board 
 of Overseers. No power, however, was given to that Board to 
 receive or hold estates given to the College, but merely legisla- 
 tive and ministerial authority over it. 
 
 But in 1650 it was thought advisable, as a means, among 
 other purposes, of encouraging donations, and of establishing 
 the institution upon an independent foundation, obviously essen- 
 tial to its progress and usefulness, to make the College an incor- 
 porated institution ; and the Charter was granted, by which, 
 after reciting that, whereas, through the good hand of God, 
 many well-devoted persons had been and were daily moved to 
 give and bestow gifts, lands, legacies, and revenues, for the ad- 
 vancement of all good literature, arts, and sciences, in Harvard 
 College, and to the maintenance of the President and Fellows, 
 and accommodation of buildings, and other provisions that may 
 conduce to the education of the English and Indian youth in 
 knowledge and godliness, it was thereby enacted, that for those 
 purposes the College from thenceforth should be a corporation, 
 consisting of seven persons, to wit, a President, five Fellows, 
 and a Treasurer, (who were therein named,) with power to ap- 
 point their successors, under approbation of the Overseers ; and 
 which President and Fellows for the time being should, for ever 
 thereafter, in name and fact, be one body politic and corporate 
 in law ; and should have perpetual succession ; and should be 
 called by the name of President and Fellows of Harvard Col- 
 lege, and by that name should purchase and acquire, or take 
 and receive upon free gift and donation, any lands, tenements, 
 or hereditaments, (not exceeding a specified annual value,) and 
 any goods and sums of money whatsoever, to the use and be- 
 hoof of the President and Fellows and scholars of said College ; 
 with power to establish a common seal, to appoint officers, and 
 make by-laws, if approved by the Overseers. And by an addi- 
 tional act, in 1657, the power to make by-laws was enlarged, 
 so as not to make the previous consent of the Overseers essen- 
 tial to their validity, making them, however, subject to revis- 
 ion or rejection by that Board. 
 
 By virtue of this Charter, the College became a legal being, or 
 person, endowed with powers to hold and manage estates, real 
 and personal, appoint officers, and enact laws, for the accom- 
 6 
 
34 
 
 plishment of the purposes of irs creation, as prescribed in that 
 instrument : with power of transmitting those powers and es- 
 tates to other persons, of its own appointment, as members of 
 the Corporation. And the legal title, possession, and absolute 
 control of all the property theretofore held by the Colony for its 
 use. and of all that should be subsequently acquhed. became. 
 or was to become, vested m the President and Fellows for the 
 time being, as of the sole estate of the Corporation. They also 
 became invested with all the rights, privileges, and immunities 
 incident to membership of a corporate body, and subject to cor- 
 responding duties and obligations; for the fulfilment whereof 
 they were amenable only to the Board of Overseers, and to the 
 general laws of the land. And the State thereby surrendered 
 all right and title to such property, and all power of resuming 
 it. or of interference with those rights, privileges, and immuni- 
 ties, excepting in so far as any right oi such interference was 
 reserved in the Charter, or was inherent in the power to enact 
 general laws regulating such corporations. 
 
 No change was made or attempted in the Charter, and nothing 
 appears to have taken place indicating any question of its valid- 
 ity, or any interference with the rights granted under it. so far 
 as yom' memorialists can ascertain,, until after the termination 
 of the Colonial government, in IQSo. by which it had been 
 granted, excepting the anomalous procedure in 1674. recited in 
 the Report of 1S49. by which the Overseers. Corporation. Presi- 
 dent, and students were all summoned before the General Court 
 and dismissed with a vote. ••' that, if the College should be found 
 in the same languishing condition at the next session, the Presi- 
 dent should be dismissed without a further hearing."" As the 
 College was then in a state of disorganization, four of the mem- 
 bers 01 the Corporation having resigned their seats, leaving the 
 Board without a constitutional quorum, and it was in utter 
 confusion and extreme poverty, depending upon the annual 
 grants of the Legislature for daily subsistence, this strange ex- 
 ercise ot arbitrary power, as obviously inconsistent with the 
 personal as the corporate rights of the persons summoned, may 
 vrell be accounted for. without supposing any reference on 
 either side to the legal right of such a procedure : which it is 
 believed that the most strenuous advocate for legislative su- 
 premacy would not venture to vindicate on legal principles. 
 
35 
 
 The Charter of 1672, also referred to in that Report, contained 
 no material alterations of that of 1650, except by increasing the 
 number of corporators to ten. It was, however, as is conceded, 
 never accepted or acted upon by the Corporation ; and no effort 
 was ever made by the Legislature to enforce it upon them. 
 So far, therefore, as it is to be esteemed a precedent, it is one to 
 the point, that an enactment affecting the charter, not accepted 
 by the Corporation, was considered of no legal validity. 
 
 The Report of 1849 states, that in 1673 " the General Court, 
 by an order, made an addition to the Corporation." And this 
 statement is seemingly much relied upon in that, and in the 
 Report accompanying this bill. Your memorialists have caused 
 the records of the General Court and of the College to be 
 searched, and are informed that no record of any such order, or 
 of any thing done under such an one, can be found in either. 
 And they are satisfied that none such was ever passed. Upon 
 inquiry for the authority upon which this statement was made, 
 they were referred to a note to page 159 of the first volume of 
 Hutchinson's History of Massachusetts ; the same work so em- 
 phatically denounced as containing false statements and false 
 law in the learned speech before referred to. The note is ob- 
 viously loose and general, not purporting to be of that specific 
 nature which implies accurate information. It is merely, that, 
 " Under this Charter (of 1650), the College was governed until 
 the year 1685, when the Colony Charter was vacated ; saving 
 that, in 1673, by an order of the General Court, some addition 
 was made to the number of the Corporation " ; this author thus 
 bearing testimony to the otherwise uninterrupted enjoyment 
 of its Charter. 
 
 It appears plain to your memorialists, that the historian has, 
 not unnaturally, confounded an order of the Overseers, passed in 
 December, 1674, and a compliance with it by the Corporation, 
 with a supposed order of the General Court so acquiesced in. It 
 appears, as before stated, that the College was in a state of entire 
 disorganization by the resignation of four members of the Cor- 
 poration, and by the disorders and dissatisfaction which fol- 
 lowed. In this state of things the Overseers passed an order, 
 commending to the President and Fellows then remaining, that 
 they take care to fill up their number according to their Charter, 
 so that their power and privilege, granted by the General Court, 
 
36 
 
 might not be weakened or abated in any kind ; and the Cor- 
 poration proceeded immediately to fill up the vacancies, in the 
 usual regular manner. Indeed, these proceedings of the Over- 
 seers and Corporation are conclusive proof that no such order 
 of the General Court could have been passed, or, if passed, 
 could have been acquiesced in by the Corporation, as otherwise 
 they would have been needless. 
 
 Thus it is apparent that no authority can be found in any 
 action of the Colonial government, by which the Charter was 
 granted, for the claim or right to revoke or alter it. That of 
 the Provincial government is the next to be considered. 
 
 In the great confusion of ideas concerning political and pri* 
 vate rights and relations, which was caused by the canceUing 
 of the Colonial Charter in 1684, and the general ignorance 
 concerning corporate rights and privileges, the College being 
 the only corporation established in the Province, it was natu- 
 rally to be expected that great mistakes concerning them would 
 exist, and corresponding irregularities take place in the admin- 
 istration of its affairs. 
 
 It appears, indeed, to have been inferred on all sides, that the 
 vacation of the Colonial Charter repealed or abolished that of the 
 College also. Probably upon the same principles on which it 
 was assumed that all Colonial acts, including even grants of 
 lands, ceased to be valid. Under that impression the rulers of 
 the Colony, both before and for a short period after the granting 
 of the Provincial Charter, so far assumed the control of the insti- 
 tution as to appoint officers for its government. Such were the 
 appointments of Increase Mather, John Leverett, Thomas Brat- 
 tle, and William Hubbard, mentioned in the Report of 1849. 
 But Mr. Mather, at the time of such appointment, was the act- 
 ing President of the Corporation, under a previous request of the 
 Overseers ; Mr. Leverett was a member of the Board, and Mr. 
 Brattle a tutor in the institution ; so that the appointments may 
 well be supposed to have been at the request and not in opposi- 
 tion to the desire of the Corporation. And it is worthy of obser- 
 vation that these appointments are found only upon the books 
 of the College, no allusion whatever being made to them in the 
 records of the civil government. They were not legislative 
 acts, nor acts of that government, otherwise they would have 
 been so recorded j but were proceedings of those who were 
 
37 
 
 acting as Overseers or officers of the College government, con- 
 sidering themselves as ex officio and from the emergency of the 
 case invested with such authority. And the appointment of 
 William Hubbard as rector, which is stated in the Report as if 
 it were a permanent one, was merely for the purpose of pre- 
 siding upon one Commencement day. President Mather being 
 absent in England ; and, moreover, was made by Sir Edmund 
 Andros, not remarkable for his respect of personal or political 
 rights. 
 
 The dissolution of the Colonial Charter of course abolished the 
 then existing Board of Overseers, created by the act of 1642, an 
 essential portion of which had consisted of magistrates holding 
 office only under it. But, however misapprehended at the time, 
 viewed in the clear light of more recent jurisprudence, it did not 
 vacate the College Charter of 1650, nor abolish the Board of 
 President and Fellows who constituted the Corporation, and 
 who continued to hold its franchise and estates, any more than 
 such dissolution annulled any other grant made by the Colonial 
 government of lands or other property, or privileges, liberties, 
 and immunities of any sort to private individuals. 
 
 The anarchy of opinion and confusion into which the Colony 
 was thrown by the repeal of its Charter was for a time rather 
 increased than diminished by the Provincial Charter of 1691, 
 which radically altered the political aspect of the government, 
 and destroyed the foundation upon which the clerical dominion 
 had been established and ruled with almost absolute sway. 
 That Charter was sufficient, both by express terms and neces- 
 sary implication, to renew and confirm the College Charter, if 
 such a renewal or confirmation had been necessary ; but which 
 necessity, for the reasons above stated, did not exist. As it was 
 desirable, however, if possible, to save the College from the dan- 
 gers with which the new form of government was supposed to 
 threaten it and all the religious institutions of the Province, the 
 Corporation and friends of the College immediately exerted them- 
 selves to procure a new Charter, which should permanently se- 
 cure the College in their own exclusive possession and control, 
 independently of all connection with, or interference of, the 
 government. This was the Charter of 1692, referred to in the 
 Report of 1849, and which was rejected by the crown. 
 
 The government of the College was forthwith organized under 
 
38 
 
 this Charter, and acted under it until its rejection in 1696. 
 Upon that event being made known, Lieutenant-Governor 
 Stoughton assumed the responsibility of appointing the Presi- 
 dent, Fellows, and Treasurer, named in that Charter, to proceed 
 in the government of the College according to its late rules, until 
 the further pleasure of his Majesty should be made known, or a 
 legal settlement of the College should be obtained ; all which is 
 carefully entered upon the College records, and it is evident 
 must have been with the concurrence and consent of those 
 then representing the Corporation. Nor is any allusion to this 
 proceeding found upon the records of the Provincial govern- 
 ment, as would have appeared, had it been considered one under 
 its authority, or in the course of its administration. 
 
 A further effort was made to obtain another Charter, which 
 resulted in the enactment of one by the General Court in 1697 ; 
 and the members of the Corporation exerted themselves to have 
 President Mather appointed to proceed to England to procure 
 its ratification ; in which, however, they did not succeed. This 
 Charter was also rejected. Several other efforts were made by 
 the members of the College government, and its friends, for 
 the procurement of other charters, in 1699 and 1700, all of 
 which failed ; and the General Court from that period down 
 to the year 1707 conferred the government upon the persons 
 named in those charters, or upon others designated for that 
 purpose ; but always, as it is believed, unless the temporary ap- 
 pointment of Mr. Hubbard above mentioned be an exception, 
 upon the particular friends of the College, and not in opposi- 
 tion to them. 
 
 It is manifest, however, that as all these proceedings were in 
 the understanding, on both sides, that the Charter of 1650 was 
 vacated by the Province Charter, and that the College, therefore, 
 had no corporate existence or rights, and were also by mutual 
 concurrence of the government of the Province and of those 
 acting as governors of the College, no argument can be drawn 
 frorn them in favor of the right of the government thus to ap- 
 point, and act or interfere with the affairs of the College, in 
 contravention of the rights secured by that Charter, if it was in 
 truth still subsisting ; nor can they be adduced as illustrative of 
 any construction put upon it by the government or Corporation ; 
 nor as evidence of the admission of any such right of government 
 
39 
 
 or interference. They are entirely irrelevant in any discussion 
 of the constitutional rights of the College under the Charter, 
 being based wholly upon its assumed dissolution. 
 
 This unfortunate and erroneous belief, of the supposed disso- 
 lution of the College Charter, was happily and finally terminated 
 by an act in Council, in December, 1707, concurred in by the 
 House of Representatives, and approved by the Governor in the 
 following words : — " And inasmuch as the first foundation and 
 establishment of that house, and the government thereof, hath 
 its original from an act of the General Court made and passed 
 in the year one thousand six hundred and fifty, 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 pre- 
 scribed, and to exercise the powers and authority thereby grant- 
 ed for the government of that house and the support thereof." 
 
 The College government was reorganized accordingly with- 
 out delay. A Board of Overseers was assembled at the College 
 according to the Charter of 1650 ; the Corporation was reduced 
 to its original number of seven, including Mr. Leverett, who 
 had been previously appointed President ; and his instalment in 
 the office took place with appropriate ceremonies, and the rec- 
 ords. Charter, seal, and keys were delivered to him. The Cor- 
 poration thenceforth continued in the uninterrupted and un- 
 questioned enjoyment of their corporate privileges, estates, and 
 powers under that Charter, until the dissolution of the Provin- 
 cial government by the Revolution, and the establishment of 
 the original Constitution of the Commonwealth in 1780. 
 
 The enactment of December, 1707, above recited, was not, as 
 has been sometimes represented, a revival, a reinstatement, or 
 restoration of the Charter of 1650, for that had never been legally 
 vacated or annulled. It was merely a declaratory act of the 
 government of the Province, affirming its legal existence and va- 
 lidity, and pledging the public faith for its inviolability to those 
 who should rely upon it in the making of contracts, or the be- 
 stowment of donations for the advancement of learning and 
 religion, which the law holds to be in the nature of contracts. 
 
 But if the legal validity of the Cliarter of 1650 could be con- 
 sidered as doubtful, or reasonably denied at the time of the pas- 
 sage of that act, your memorialists respectfully, and with entire 
 
40 
 
 confidence, submit, that such a declaratory enactment by the 
 government in confirmation of a preexisting charter, or contract, 
 passed for the purpose of restoring its action, and of inducing 
 officers to resume the duties and trusts which it created and im- 
 posed, and benefactors of learning and reUgion to bestow gifts 
 upon the College for their advancement in the manner provided 
 by it, and upon the faith of its binding obligation upon the 
 State, would have constituted a contract between the State and 
 the Corporation, and those thus contracting with it. which would 
 be equivalent to the regranting of such a charter, and which no 
 subsequent Legislature could repeal, or alter. v%-ithout the con- 
 sent of the Corporation. That a private individual, who had 
 thus recognized and confirmed a grant of estates, powers, or 
 privileges previously made by him to trustees for specific pur- 
 poses, and thereby induced others to convey to them valuable 
 property in aid of their accomplishment, without reserving the 
 power of revocation, would have been thereby for ever legally 
 barred from denying the validity of the original grant, and its 
 perpetual obligation upon him. admits of no question ; and un- 
 less the Provincial government, and that succeeding it. are to be 
 considered above the laws regulating the obligation of contracts, 
 it is not perceived how the binding force of this act upon them 
 can be reasonably questioned. 
 
 The next events in the history of the College were the Revo- 
 lution, which abolished the Provincial government, and resulted 
 in the establishment of the State government, under a written 
 constitution, in ITSO. and the insertion therein of the articles 
 relating to the College to be presently considered : during which 
 period of time no change was made or attempted in the College 
 Charter. As. however, the Board of Overseers, which had con- 
 sisted in part of magistrates holding office under the Provincial 
 government, was abolished by its destruction, it became neces- 
 sary for the newly created government to substitute another, in 
 the same manner as the Provincial government had done upon 
 succeeding to the Colonial. But this procedure required no al- 
 teration of the Charter under which the Corporation was estab- 
 lished ; being merely an arrangement for the exercise of that 
 portion of the visitatorial power, which had never been vested 
 in the Corporation : nor can it be considered a precedent for the 
 exercise of such authority when such emergency did not exist. 
 
41 
 
 Your memorialists do not understand that any pretence is 
 made, in any quarter, that the revolution and dissolution of the 
 Provincial government, and substitution of the State govern- 
 ment, vacated or in any wise aflected the Charter of the Col- 
 lege, or any legal rights originally created by it. 
 
 In 1810 the Legislature changed the constitution of the 
 Board of Overseers by an act, which made the acceptance of it 
 by them and by the members of the Corporation essential to 
 its validity, and which acceptance they gave. 
 
 In 1812 the Legislature passed an act purporting to repeal 
 the last-named act, and to restore the former constitution of the 
 Board of Overseers. Against the passage of this act, the Over- 
 seers and Corporation remonstrated, as being in contravention 
 of the chartered rights of the College ; and reserved the right 
 to test its validity by appeal to the judicial tribunals. 
 
 In 1814, and before any measures taken to try the question, 
 the Legislature repealed the act of 1812, and reorganized the 
 Board of Overseers, by an act requiring their assent and that of 
 the Corporation, which were given, and which, with an amend- 
 ment made by an additional act passed in the year 1834, to go 
 into operation when accepted by the Overseers and President 
 and Fellows of the College, and which was accepted by them, 
 now forms the constitution of that Board. 
 
 In 1820, when the Constitution of the Commonwealth was 
 submitted to the people for amendment, a proposition was made 
 for a change in the Board of Overseers, but was rejected. But 
 none was suggested of any change in the Charter of the Col- 
 lege. And from that time, until the proposal of the act under 
 consideration, the College has been in the uninterrupted exer- 
 cise of its powers and privileges, and in the discharge of the 
 duties prescribed by the Charter, without any effort to vary its 
 terms or provisions. 
 
 Upon a revision, therefore, of the history of the College, and 
 of the legislative acts concerning it, we have seen, that, during 
 the existence of the Colonial government, from the date of the 
 Charter in 1650 to the year 1685, a period of thirty-five years, 
 and one in which, from the nature and necessities of the times, 
 the exercise of arbitrary and unconstitutional power was not 
 infrequent, no one act was done by the Legislature in contra- 
 vention of the Charter, or for altering its provisions, against the 
 6 
 
42 
 
 consent of the Corporation: and nothing in derogation of their 
 rights under it. unless the singular proceeding above recited be 
 so considered, which, as before suggested, it is impossible to 
 look upon as a precedent of the exercise of lawful authority. 
 
 That, from the year 16S.5. when the Colonial Charter was an- 
 nulled, to the year 1707. being fi_fteen years after the P::-\;".:::-.l 
 Charter was granted, a period of abc'iii twenty-two yeais. ^t 
 was believed or assumed on all sides, ::::..: the College Charter 
 was abolished so that the Corporation no lonser existed : and 
 that, under that z^\:^:. ihe g-veriiment assumed authority and 
 control over the Cii^rge. :::: is exercising control over the 
 Corporation created by the Charter of 1650. but m a manner 
 inconsistent with the idea of any existing corporate body, or 
 corporate rights, for the purpose of preserving its estates and 
 continuing its usefulness, but that all such acts appear to have 
 bee:, dene by the concurrence of those who were ofi:ers un- 
 der the original Charter, and ol those subsequently appointed, 
 who were the active friends oi the institution; and anxious for 
 i:s yieseiwation : ae.i :::: in derogation of any rights asserted 
 by them in its behalf. 
 
 T:ie: de:e_ rhe yeer 1707. and as soon as it was determined 
 that :de Ld^::^ :er c: 1650 was still in existence, until the termina- 
 tion of the Provincial government in 1775. a period of about 
 sixiy-ei^dr years, and one of kiii^de v:e::^e:-V-, :iir one change 
 was attempted, iie: eii^ eer d:i,e. i:i dri:ge:.::i ef :his Charter. 
 
 That, in 17S0. ::ie eherteeed eighis ef :he Ceiie^e. and n had 
 none but under this Charter, were recognized and confirmed in 
 the fullest manner m the Constitution of the Commonwealth, 
 by articles which stii: eensiiiute apreneiLe:!! perrien of it : and 
 that, from the Reveieiein ii. 1775 i • :de eiese:.: iinee. a period 
 of seventy-six years, but one enort has been made by dne Leg- 
 islature, supposed to anect the iegei ::g:i:s :: :de Ldi'iiaiiin 
 under this Charter, and this was seen ai'ie: led.essri ':yiegi^ia- 
 tive eiiacrmenr reee^gnizing the necessiiv ef i;s assent re any 
 lawful change of that instrument. 
 
 So that, diunng the whole period of two hundred years, which 
 have now elapsed since this charter was granted, there has been 
 but one solitary legislative act. which in any point of view can 
 be considered in derogation of the rights of tbe Corporation un- 
 der it. and that act continued for the space of only two years. 
 
43 
 
 And it may well be supposed, that those who were instrumen- 
 tal in its passage may have acted under the belief that an act 
 affecting the constitution of the Board of Overseers only, and 
 changing nothing but the mere exercise of a portion of the vis- 
 itatorial power, could not be considered as infringing in any 
 degree upon the rights of the Corporation, which were created 
 and existed by a wholly distinct and independent charter. And 
 with this not unreasonable solution of that procedure, the Col- 
 lege Charter stands for two hundred years, without any effort 
 on the part of the Colonial, Provincial, Revolutionary, or State 
 governments to vary its terms, or derogate from the rights 
 granted under it in any one instance. 
 
 Upon the history, therefore, of the College and of the Legis- 
 lative proceedings concerning it, if that is to be considered as 
 proof, or illustrative of the powers of the government over it, 
 further comment is needless. 
 
 In regard to the legal positions taken by the Committee, as 
 exhibited in their Report, and the speech in support of it, deliv- 
 ered by the Honorable Chairman, those resting upon the alleged 
 rights of the State, as the founder of the College, have been 
 stated ; and the recital of them might be thought their suffi- 
 cient refutation, to those conversant with the jurisprudence 
 upon this subject. But their highly respectable authorship, 
 and the confidence with which they were urged, seem to de- 
 mand a more particular consideration. 
 
 That the State was the founder of the College in the strict 
 legal sense of the term, as having endowed it with legal exist- 
 ence, is undoubtedly true ; and in the same sense it is the 
 founder of every incorporated institution within its boundaries. 
 Nor can your memorialists be supposed desirous to derogate in 
 the slightest degree from her honor, whose reputation is as dear 
 to them as it can be to any of her sons, in questioning the claim 
 made by the Committee to consider her as the founder, in the 
 sense in which they assert that she was, namely, as being the 
 first benefactor or first giver of its revenues. It is true, that 
 some eminent men and jurists have so considered and described 
 her, in allusion to the history of the origin of the College, obvi- 
 ously in reference to the order of 1636, by which the Colonial 
 government agreed to give four hundred pounds for its estab- 
 lishment ; and not probably knowing, that this agreement was 
 
44 
 
 never specifically fulfilled : or if so. not until after the dona- 
 tion of 3Ir. Harvard had been made, and expended as the first 
 means of estabUshing aud erecting the edifice of the College. 
 It is obvious that the mere entry of such an order upon the 
 records of the Colony formed no contract with auy one. for no 
 other party was in existence with whom such a contract could 
 be made. It was merely a legislative resolve of what was ex- 
 pedient to be done for the public good ; and which, while it 
 proves the liberal and enlightened policy of its authors, might 
 have been at any time with perfect right and justice revoked 
 by them, without cause of complaint to any one. At the 
 time of the bequest of John Har^'ard, it was nothing more than 
 an unexecuted resolve, of great, and perhaps of vital impor- 
 tance to the establishment of the College, as an assurance of 
 public favor and support, and thereby inducing private individ- 
 uals to endow it ; but still not an actual gift, by which the 
 College acquired any absolute estate, or fund, or means of sub- 
 sistence. And history shows that the first gift of this char- 
 acter, acmally made, and which was sumcient to secure its im- 
 mediate establishment, was that of John Harvard. 
 
 Under these circumstances, and under the sanction of the 
 contemporaneous legislation of those who passed that resolve, 
 and who so emphatically declared their understanding that he 
 should be considered the founder by immediately bestowing 
 upon the institution his name, and who. eleven years after- 
 wards, in a public memorial, declared him to be the principal 
 founder, your memorialists respectfully submit, that he is to be 
 considered the founder, or first giver of its revenues : and that, 
 in so far as this consideration may be of any moment, the 
 founder was a private individual, and not the State. 
 
 But although the memorialists deem it proper thus to set 
 forth the claims of this good man and chief benefactor in the 
 cause of learning, at the first establishment of the Common- 
 wealtli; to be considered the founder of the College, in justice 
 to his good name and the cause of truth, yet in their judg- 
 ment it is of no moment in the consideration of the legal ques- 
 tion before the Honorable House, inasmuch as if it were con- 
 ceded that the State was the founder, in the manner supposed 
 by the Committee, that circumstance would not import any 
 power in the Legislature to enact this bill. 
 
45 
 
 The inferences deduced from this supposed relation of the 
 State to the College, that the State as such founder has legisla- 
 tive power to make all needful statutes for the government of 
 the College, visitatorial and judicial power over its officers and 
 administration, and power to prescribe the statutes of its foun- 
 dation, and from time to time to alter the same, provided it 
 does not impair the vested rights of any person, are, as your 
 memorialists humbly conceive, errors occasioned by confound- 
 ing the original right of a founder of a charity to prescribe 
 the terms and tenure of the grant establishing it, with those 
 which may remain in him after its execution, and an accept- 
 ance of it by the grantees. 
 
 The general proposition of law, upon which these claims 
 are understood to rest, is, that the State has the right to enact 
 this bill, as founder of the College, possessing all power neces- 
 sary for that purpose by virtue of that relation alone. 
 
 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 the trustees, 
 with power of removal and substitution, provided that such 
 terms, tenure, and reservations 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. 
 
 But it is no less clear, that if, by the terms or nature of the 
 grant, the founder has prescribed the tenure upon which the 
 trust shall be holden, and the rights, powers, and duties of the 
 trustees in the administration and perpetuation of it, and of 
 those for whose benefit it shall be maintained, and has commit- 
 ted Its entire management and government to the trustees solely, 
 
46 
 
 or in connection with other persons, without reservation of any- 
 right to vary such tenure, terms, rights, powers, duties, govern- 
 ment, or beneficial interest ; and the grantees have accepted 
 the grant, and entered upon the administration of the trust ; 
 the founder has thenceforth no legal power, or right whatsoever, 
 to revoke or alter the grant, or any power, duty, trust, interest, 
 liberty, or estate created under it, or to interfere or intermeddle 
 therewith, any more than would have any entire stranger to it ; 
 and that, where the whole right of government and perpetua- 
 tion is vested in the trustees alone, no visitatorial power what- 
 soever remains in the founder ; and none exists anywhere, 
 excepting that which is common to the State over all eleemos- 
 ynary institutions, under the general laws relating to them, to 
 examine by its judicial tribunals whether the true objects of 
 the charity have been kept in view and faithfully pursued, and 
 its funds rightly administered. 
 
 In such case the grant is an executed contract between the 
 founder and the grantees, and those for whose benefit it is 
 made, which he can neither rescind, nor vary, nor impugn, 
 without the consent of all. 
 
 These are now established elementary principles of law upon 
 this subject, admitting of no reasonable question ; and they 
 cannot be subverted or violated without hazarding the destruc- 
 tion of all the charitable institutions within the Commonwealth, 
 and for ever shutting ofi" those streams of benevolence and en- 
 lightened liberality by which the wants of learning and sci- 
 ence, and of suffering humanity, are now chiefly supplied. 
 
 In order, therefore, to ascertain whether the State (admitting 
 it, for the purpose of this inquiry, to be the founder) possesses 
 the power to pass this bill, resort must be had to the grant con- 
 tained in the Charter, to determine whether it was thereby re- 
 served, or remained in the State, because not expressly parted 
 with. 
 
 Its provisions have been recited above, and by them it appears 
 that the State did part with all the power, which it might other- 
 wise have retained as founder, of making the change in the organ- 
 ization and government of the Corporation now proposed. The 
 Charter was an express grant to seven persons therein named, as 
 President, Fellows, and Treasurer of the Corporation, of all the 
 privileges, liberties, and immunities of the Corporation in per- 
 
47 
 
 petual succession, and gave to them the sole power of appoint- 
 ing their successors for ever, subject only to confirmation or 
 rejection by the Overseers. It granted to them and their suc- 
 cessors so appointed the right to acquire and hold all the real 
 and personal estates of the Corporation, to the use of themselves 
 and the scholars of the College. It gave to them the sole power 
 of appointing all the officers and servants of the College, and 
 vested in them the exclusive right of enacting rules and laws 
 for its government, and of administering them, subject only to 
 the approval or disapproval of such appointments, rules, and 
 laws, by the Overseers. In short, the State, by this Charter, en- 
 tirely divested itself of all power thenceforth over the College, 
 visitatorial, or of any other description, and granted it wholly 
 to the Corporation and Overseers, unless the Overseers are to 
 be esteemed the mere agents or representatives of the State, 
 in the exercise of that portion of visitatorial power reserved to 
 them, subject to such alterations of the Board as the Legislature 
 may see fit to make ; in which case such portion might be con- 
 sidered as reserved to the State ; but it falls far short of any 
 power to authorize the enactment of the proposed bill ; and can 
 by no possibility extend further than the modification of the 
 agency, which is to exercise this power of confirmation. 
 
 But the legal nature and eff'ect of such a charter do not rest 
 upon these elementary principles of law, however generally 
 recognized, but are established by the highest judicial authority 
 known in this country, which has decided that such a charter 
 constitutes a contract between the State and the corporation 
 created by it, and those entitled to beneficial interests under it, 
 and those who shall have bestowed their bounty under it, and 
 those in possession of its franchise and estates, sacred and invi- 
 olable ; and which the State has no legal power to revoke, alter, 
 or impair, without their consent, and the consent of all, of whom 
 the holders of the franchise are the lawful representatives. 
 
 Another view, however, has been taken upon this subject, 
 which your memorialists are compelled to submit for considera- 
 tion, for the reason that, although not alluded to in the Report of 
 the Committee, it forms a prominent topic in the speech deliv- 
 ered by the Honorable Chairman in support of it, and must 
 therefore be considered one of the positions relied upon in 
 
48 
 
 recommending the passage of the bill, and upon which the 
 power to enact it is supposed to rest. 
 
 It is said that Harvard College is a public corporation belong- 
 ing to the State, that the corporators are merely servants or 
 agents of the State, and that there is no contract under the 
 Charter, because the State is the only party having any interest, 
 and no one has authority to appear to contest her rights. It is 
 true that, in asserting the unlimited power which would seem 
 necessarily to follow from such premises, the proviso was added, 
 that its exercise could not extend to the confiscation or misap- 
 plication of the funds of the College. But such proviso is 
 plainly inconsistent with what must be the inevitable legal 
 conclusion from the positions taken, if they are sound, and is 
 therefore a virtual surrender of them, if it means any thing. 
 
 The whole basis of this position is stated to be the circum- 
 stance, that the State was the founder of the College. It was 
 expressly conceded that, if John Harvard was the first bene- 
 factor, or founder, the College would be a private corporation, 
 and the Legislature would have no constitutional power to pass 
 this bill. But it is alleged that, as the State was the founder 
 by the gift of the public money, this is a public charity, and 
 the College is a public corporation, and therefore entirely at the 
 control and disposal of the government. 
 
 Your memorialists are unable to find any authority for such 
 conclusions, in any principles of law or judicial precedent with 
 which they are conversant; but are constrained to consider 
 them alike inconsistent with both. 
 
 In one sense, indeed, all corporations established for charita- 
 ble purposes, to the benefits of which the public are entitled, 
 upon or without prescribed terms, are denominated public, as 
 are many others in which the public are interested ] but all of 
 which, legally considered, are strictly private. 
 
 In correct legal description, those only are public corporations 
 which are founded by the government for political or public 
 purposes, where the whole interests and franchises are of the 
 exclusive property and domain of the government itself, as incor- 
 porated cities, counties, and the like. But all eleemosynary cor- 
 porations, such as colleges, hospitals, and similar institutions, 
 holding property in their own right, with power to dispose of it 
 
49 
 
 for the purposes prescribed by their charters, under the control 
 and management of their officers, are private corporations, from 
 whatever sources they may have derived their funds. 
 
 Public corporations, properly speaking, are for the purposes 
 of civil government or political arrangement, and are of course 
 under the control and subject to the will of the government thus 
 creating them for its own purposes. But eleemosynary corpo- 
 rations, for the purposes of education, or relief of individual 
 suffering, by the administration of funds belonging exclusively 
 to themselves, in the manner pointed out by their charters, are 
 private. The tenure of their property, and the right of admin- 
 istering it, are, in the strictest sense of the law, private. The 
 members of such corporations have private rights and privi- 
 leges. They have the sole right of possession of the corporate 
 funds. They have the exclusive right of administering them, 
 and the power of governing, ordaining rules, and appointing 
 officers and servants, if it has not been reserved or given else- 
 where. These are all clear, distinctly recognized private legal 
 rights, in the enjoyment of which the corporations and their in- 
 dividual members have a right to the protection of the law, and 
 from any violation of which the law furnishes specific remedies. 
 In the language of an eminent jurist, '• The privilege of being a 
 member of a corporation under a lawful grant, and of exercising 
 the rights and powers of such membership, is such a privilege, 
 liberty, and franchise, as has been the subject of legal interest 
 from the time of Magna Charta to the present moment." Every 
 member of such corporation has a franchise ; it is his private 
 right ; and he may have an action at law against any one who 
 may disturb him in the enjoyment of it. 
 
 The very purpose of a charter establishing an eleemosynary 
 corporation, and bestowing property upon it, is to make and 
 keep it private property, with all the security and inviolability 
 incident to such tenure. The obvious purpose of this Charter 
 was to divest the Colony of the funds, which it then held for the 
 benefit of the Q)llege, and to establish a legal private ownership 
 in the Corporation, who, by exercise of the powers granted, 
 might hold and protect it, and all that should thereafter be given 
 to them, for the exclusive benefit of those for whose use it was 
 designed. No terms more explicit and unequivocal of such in- 
 tention can be devised, than those contained in this instrument, 
 7 
 
50 
 
 Avhich declares that all property received or acquired under it 
 shall be •'■'holden to the use and behoof of the said President 
 and Fellows, and the scholars of said College."'" 
 
 The President, professors, and tutors hold their offices under 
 the appointment of the President and Fellows, and in the first 
 instance are accountable to none else, and can be removed by 
 no one else. They accepted their offices by this tenure, and 
 have corresponding private legal rights. The Corporation is the 
 trustee of the private rights of all the benefactors of the College, 
 and under contracts with them for the faithful administration of 
 their bounty ; and trustee, also, of the beneficial interests of the 
 scholars, who have no other representative or protector thereof. 
 
 By the eloquent recital in the Charter, inviting and inducing 
 patrons of learning and religion to bestow gifts upon this insti- 
 tution for their advancement, and by the provisions subse- 
 quently set forth to assure them of its safe keeping and proper 
 administration, there arose an implied contract, on the part of 
 the government, with every benefactor, that, if he would give 
 his money, it should be deemed a charity protected by the Char- 
 ter, to be administered by the Corporation, according to the gen- 
 eral law of the land. As soon. then, as a donation was made 
 to the Corporation, there was an implied contract, springing up 
 and founded on a valuable consideration, that the State would 
 not revoke or alter the Charter, or change its administration 
 without the consent of the Corporation. The government, by 
 thus inducing benefactors to endow the College, have contracted 
 to give perpetuity to their benevolence, in this form, and in this 
 stipulated manner of exercising it. And they have correspond- 
 ing private rights. 
 
 A grant by the State, with or without consideration of any 
 property, right, liberty, or franchise, is as binding and irrevoca- 
 ble as a similar one made by an individual : and the tenure and 
 rights of the grantee are determined by the terms and declared 
 purposes of the grant, without reference to the character of its 
 author. 
 
 A state may dispose of its property for charitable purposes, as 
 well as for those of any other nature for Avhich the grantee may 
 desire or take them : but, when it has been thus disposed of, the 
 state ceases to be the owner, and the grantee becomes such in 
 
51 
 
 its place, and with no other accountabihty than that reserved 
 or created by the grant. 
 
 The position taken, that, because the State makes the first 
 donation for the establishment of an eleemosynary corporation, 
 — which, by the express terms of its charter, is expected to de- 
 pend chiefly upon private endowments, and which is vested with 
 absolute power to receive and hold them exclusively to its own 
 use, for the purposes of its creation, — it thereby becomes a pub- 
 lic corporation, a mere servant or agent of the public ; and that 
 all its funds, however acquired, thus become public property, in 
 which no one but the State has any interest, and that it has no 
 legal right against the State ; — is one which your memorialists 
 cannot fear will find any favor with the Legislature or people 
 of this Commonwealth. And on this point they have only to 
 add, that, if doubt could otherwise exist upon it, they are sus- 
 tained by the judicial authority of one of the most eminent 
 jurists of this or any other country, in a recent decision, as well 
 as by other authority coeval with the date of the Charter. 
 
 The remaining ground upon which the assertion of lawful 
 power in the Legislature to enact this bill rests, is the proviso 
 at the close of the third article in the fifth chapter of the Con- 
 stitution ; to a correct understanding of which, a recital of the 
 three articles is necessary. They are as follows : — 
 
 "Art. 1. Whereas our wise and pious ancestors, so early as 
 the year 1636, laid the foundation of Harvard College, in which 
 University many persons of great eminence have, by the blessing 
 of God, been initiated in those arts and sciences which qualified 
 them for public employments, both in church and state ; and 
 whereas the encouragement of arts and sciences and all good 
 literature tends to the honor of God, the advantage of the 
 Christian religion, and the great benefit of this and the other 
 United States of America, it is declared that the President and 
 Fellows of Harvard College in their corporate capacity, and 
 their successors in that capacity, their ollicers and servants, 
 shall have, hold, use, exercise, and enjoy all the powers, author- 
 ities, rights, liberties, privileges, immunities, and franchises, 
 which they now have, or are entitled to have, hold, use, exer- 
 cise and enjoy ; and the same arc hereby ratified and confirmed 
 
52 
 
 unto them, the said President and Fellows of Harvard College, 
 and to then- successors, and to their officers and servants re- 
 spectively for ever. 
 
 •• Art. 2. And whereas there have been at sundry times, by 
 divers persons, gifts, grants, devises of houses, lands, tenements, 
 goods, chattels, legacies, and conveyances, heretofore made 
 either to Harvard College in Cambridge in^N'ew England, or to 
 the President and Fellows of Harvard College, or to the said 
 College by some other description, under several charters suc- 
 cessively, it is declared that all the said gifts, grants, devises, 
 legacies, and conveyances are hereby for ever confirmed unto 
 the President and Fellows of Harvard College, and to their 
 successors m the capacity aforesaid, according to the true intent 
 and meaning of the donor or donors, grantor or grantors, devisor 
 or devisors. 
 
 ■'' Art. 3. And whereas, by an act of the General Court of the 
 Colony of Massachusetts Bay. passed in the year one thousand 
 six hundred and forty-two. the Governor and Deputy-Governor 
 for the time being, and all the magistrates of that jurisdiction, 
 were, with the President and a number of the clergy in the said 
 act described, constituted the Overseers of Harvard College : 
 and it being necessary in this new Constitution to ascertain 
 who shall be deemed successors to the said Governor, Deputy 
 Governor, and magistrates : it is declared, that the Governor, 
 Lieutenant-Governor. Council, and Senate of this Common- 
 wealth are and shall be deemed their successors : who, with the 
 President of Harvard College for the time being, together with 
 the ministers of the Congregational churches in the towns of 
 Cambridge. Watertown, Charlestown, Boston, Roxbury. and 
 Dorchester, mentioned in the said act, shall be, and hereby are, 
 vested with all the powers and authority belonging or in any 
 way appertaining to the Overseers of Harvard College : pro- 
 videcL that nothing herein shall be construed to prevent the 
 Legislature of this Commonwealth from making such altera- 
 tions in the government of the said University as shall be con- 
 ducive 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 Jiassachusetts Bav."' 
 
 It is to be observed that the first two articles relate exclu- 
 
53 
 
 sively to the Corporation, consisting of the President and Fel- 
 lows of the College, and contain a full and emphatic recognition 
 and confirmation, to them and their successors for ever, of all 
 their powers, authorities, rights, privileges, immunities, and 
 franchises, and of all the estates vested in them by virtue of 
 conveyances, gifts, or devises at any time theretofore made ; 
 and that the third article relates exclusively to the Board of 
 Overseers, which it was necessary to reorganize and reconstruct, 
 by reason of the substitution of the State for that of the Pro- 
 vincial government ; unless the proviso at its close is to be 
 construed as extending also to the first and second articles. 
 And further, that, at the time of the adoption of the Constitu- 
 tion, the only Charter under which the Corporation was organ- 
 ized and acting was that of 1650. 
 
 The first two articles were prepared by the Corporation, and 
 approved by the Overseers, and by their concurrent action pre- 
 sented to the Convention then preparing the Constitution, and 
 were adopted without amendment. The third originated in 
 the Convention. 
 
 In order to establish the power of the Legislature to pass the 
 proposed bill, as resting upon that proviso, it is obviously neces- 
 sary to show that the Provincial Legislature possessed consti- 
 tutional authority to abolish or alter the Charter of the College 
 at pleasure, as it might from time to time think expedient. 
 
 Of the existence of such authority, as founded in the princi- 
 ples of law, the memorialists think it needless to make any 
 further suggestions. The Committee, however, seem to rely 
 greatly upon the legislation of the Province as evidence that 
 such authority did exist, and refer to the history of it, as con- 
 tained in the Report of 1849, for that purpose. 
 
 Without further comment upon the principle substantially 
 put forth by both Committees, that legislative action is con- 
 clusive proof of constitutional power, than merely to express 
 the dissent of your memorialists from the doctrine, in which 
 their concurrence might be otherwise inferred, they respect- 
 fully submit that the history of the legislation of the Province, 
 in relation to Harvard College, affords no pretence for main- 
 taining that its Legislature ever exercised or claimed any right 
 to rescind, alter, or impair its Charter, or to do any thing in 
 derogation of the powers, privileges, or immunities claimed by 
 
54 
 
 the Corporation under it ; but, on the contrary, that, so far as 
 any mference is to be drawn from such history, it is decisive 
 against any such clahii. 
 
 By that history it is found, that, after the irregularities that 
 had taken place in consequence of the repeal of the Colonial 
 Charter, and by reason of the temporary misapprehension that 
 the College Charter was also thereby annulled, and in Avhich 
 mistake and hregularities both the Legislature and the Corpora- 
 tion were parties, acting in mutual and friendly concert, the 
 Legislature, upon revision of the subject, and for the purpose of 
 a permanent coiTection of the error, and of terminating such 
 proceedings for ever, passed the solemn declaratory enactment 
 of 1707, above recited : recognizing the Charter of 1650 as 
 being in full force, and as not having been repealed or annulled ; 
 and directmg the President and Fellows to regulate themselves 
 according to its rules, and to exercise the powers and au- 
 thority thereby granted. And that, in pursuance of that enact- 
 ment, the Corporation was reorganized under that Charter, by 
 the Executive, with grave formalities, expressive of the sense 
 entertained by the government of its importance, and the rights 
 of the Corporation under it. This order of things continued 
 during the remaining existence of that government, a period 
 of nearly seventy years, without a single act, vote, or resolu- 
 tion, by the Legislature, tending in the slightest degree to alter 
 or impair the Charter, or to indicate the least claim on the part 
 of the government to do so. 
 
 And your memorialists respectfully suggest, that, when it is 
 remembered that in the period which had intervened between 
 the vacation of the Colonial Charter and the date of this enact- 
 ment, the Provincial Legislature had created several new char- 
 ters, and which; if lawfully enacted, must for the time being 
 have virtually repealed that of 1650, being of legal operation 
 and effect until disallowed by the crown, this act was. in ef- 
 fect, a disavowal of their legal authority to create those charters, 
 and an express recognition of the inviolability of that of 1650. 
 
 But, in whatever other light this act may be viewed, it cer- 
 tainly removes any pretence that otherwise might be made for 
 construing the preceding legislation, in reference to the College, 
 as founded upon any claim of power to alter or impair the 
 Charter of 1650: and no such claim can exist, derived from 
 any subsequent proceedings of the Provincial Legislature. 
 
55 
 
 Upon this point your memorialists have only to add, that, 
 upon inspection of this chapter of the Constitution and appli- 
 cation of the ordinary rules of legal construction, they believe 
 that the proviso in question should be confined entirely to the 
 third article, of which it forms a portion. 
 
 That article created and relates to a supervising body entirely 
 distinct from and independent of the Corporation of the College, 
 the construction and organization of which, being dependent 
 upon the form of government for the time being, had undergone 
 changes corresponding with those which had taken place in the 
 political constitution of the State, and which would necessarily 
 become in like manner subject to alteration, conforming with 
 any which might subsequently occur. Such a proviso, there- 
 fore, in reference to a body which had been the subject of pre- 
 vious legislative alteration, might be of very reasonable and 
 natural adoption. And the circumstance that it forms a portion 
 of the whole and single paragraph relating to the Board of 
 Overseers only, without the intervention of a period, and sepa- 
 rated from other portions only in the same manner in which all 
 are separated each from the others, is not unworthy of consid- 
 eration in a question of legal construction of a written instru- 
 ment. And, as has on another occasion been stated, the an- 
 nexation of this proviso to the first and second articles, if it is 
 supposed to contain or imply power to take away, alter, or im- 
 pair the chartered rights, liberties, immunities, and franchises 
 therein enumerated, would be to render those articles little if 
 any thing better than idle words. 
 
 Your memorialists have forborne reference to other legisla- 
 tive proceedings, which would tend, in their judgment, to con- 
 firm them in the position which they have thus taken, being 
 satisfied to rest them upon acknowledged principles, and the 
 history of the proceedings of the Colonial, Provincial, and State 
 governments, above set forth. 
 
 In conclusion, your memorialists trust that, in discharging 
 their duty to the College in this plain statement of their under- 
 standing of its rights and interests, they have said nothing that 
 will be thought inconsistent with the respect they entertain for 
 the Honorable House, or that deference to any opinion which 
 it may entertain in regard to the government of au important 
 institution committed to their care, in which they have no in- 
 
I IBRARY OF CONGRESS 
 
 '' 029 892 551 5 
 
 terest other than that in common with all lovers of learning 
 and science throughout the Commonwealth. 
 
 All which is respectfully submitted. 
 
 JARED SPARKS, President. 
 LEMUEL SHAW, 
 JAMES WALKER, 
 CHARLES G. LORING, 
 B. R. CURTIS, 
 SAMUEL A. ELIOT. 
 January lAth, 185 L 
 
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"RARY OF CONGRESS 
 
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