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 TO THE 
 
 REVEREND AND HONORABLE 
 
 THE CORPORATION OF 
 
 — §©©— 
 
 The subscribers, resident instructors in Harvard Uni- 
 versity, beg leave to submit the following statements and con- 
 siderations, relative to the mode, in which, according to the 
 Charter of the Institution, the Corporation of the same ought 
 of right to he constituted. 
 
 The Corporation of Harvard University was created by 
 the Charter, granted by the General Court of the Old Colony 
 of Massachusetts, May 31, A. D. 1650, and enlarged by 
 an Appendix, Oct. 14, 1657. After various attempts to pro- 
 cure other acts of incorporation from England, and after some 
 provisional changes, which failed to become permanent for 
 want of said further acts of incorporation, it was declared by 
 the provincial Legislature of 1707, that the Charter of 1650 
 u had never been repealed or nulled," and it was accordingly 
 at that time, as it has ever since been, regarded as the Char- 
 ter of the Institution. 
 
 The preamble of this Charter sets forth, that " whereas, by 
 die good hand of God, many well devoted persons have been 
 and are daily moved and stirred up to give and bestow sun- 
 dry gifts, legacies, lands, and revenues, for the advancement 
 of all good literature and sciences, in Harvard College, in 
 Cambridge, in the county of Middlesex, and to the mainte- 
 nance of the President and Fellows, and for all accommo- 
 dations of buildings, and all other necessary provisions, that 
 may conduce to the education of the English and Indian 
 youth of this country, in knowledge and godliness, it is there*- 
 fore ordered," he. 
 
 1 
 
V 
 
 o 
 
 2 
 
 &%* 
 
 Here we desire it to be remarked, that the " President 
 and Fellows" of Harvard College are plainly mentioned, in 
 this preamble, as well known personages and functionaries, 
 for whose " maintenance" various gifts and legacies had been 
 made ; and who had already, for several years previous, dis- 
 charged their respective functions and duties in the College. 
 This remark is essential to the true and full understanding of 
 the Charter. That instrument did not first create the offices 
 of President and Fellows in the University. As we have 
 seen in the preamble, it recognised them as previously exist- 
 ing, and was granted for the purpose of conferring corporate 
 powers upon them. This remark is rendered still more 
 weighty by adding that, although the " President and Fel- 
 lows," previous to the Charter, were not a corporate body, 
 they were a legally existing society, appointed by the supreme 
 authority of the Colony, or by persons to whom that trust 
 was delegated, viz. the overseers. 
 
 In order therefore rightfully to interpret the Charter, by 
 which the President and Felloios were incorporated, it is ne- 
 cessary to ascertain what was implied in these functions, as 
 previously constituted by law, and understood in usage. 
 
 Of the office of " President," as no controversy exists, so 
 nothing need here be said. Of the office of "Fellow" 
 the nature and quality require to be ascertained ; and it is 
 the first object of this memorial to prove that " Fellow" im- 
 ported a person resident at the College, and actually engaged 
 there, in carrying on the duties of instruction or government, 
 and receiving a stipend from its revenues. In support of this 
 proposition, we adduce the following arguments : — 
 
 I. This is the quality of a " Fellow" in the English Uni- 
 versities, from which we borrow the name, and particularly 
 in the University of Cambridge, at which many of our vene- 
 rable forefathers, members of the Colony Legislature, or of the 
 board of overseers of Harvard College, named by that Legis- 
 lature, were educated. The English colleges (several of 
 which constitute respectively the Universities of Oxford and 
 Cambridge) are each separate corporate bodies, and the cor- 
 poration is in every case of the " Master, Fellows, and Scho- 
 lars," or of the same personages, under other appellations. 
 Funds are held in trust by these colleges, severally, for the 
 maintenance of the Master, Fellows, and Scholars ; and the 
 
3 
 
 incomes of said funds, after defraying the expenses of the 
 college, are divided in a certain proportion between Master, 
 Fellows, and Scholars. In the original institution of these 
 Colleges, no other Scholars, than those thus supported, were 
 contemplated. The government and instruction of the Col- 
 leges are in the hands of the Master, President, Principal, 
 (or by whatever other name he may be called) and the Fel- 
 lows ; and all the Professors are chosen from their number. 
 These facts we state briefly, supposing them to be well known 
 to the honorable and reverend gentlemen, whom we address. 
 The statutes of Trinity and Jesus College in Cambridge, Eng- 
 land, are extant in manuscript in our College library, and will 
 afford proof of the statements we have made, if proof be 
 wanting. A more striking illustration than that of positive 
 law may be found perhaps in the following passage, in the 
 life of Dr Edmund Calamy, in the Biographia Brittannica 
 Vol. II. p. 1101. Note A. "At last he so far conquered 
 prejudices, as to be elected Tanqjjam Socius of Pembroke 
 Hall, an office peculiar to that College. Besides the society 
 of the Fellows, the Tanquam Socius had Poma, that is, his 
 dividend in the garden ; Pupillos, that is, leave to take 
 pupils ; and Pileum, that is, the honor of the cap ; together 
 with a certain stipend ; but no share in the government of 
 the house." 
 
 The Master, Fellows, and Scholars, thus provided for, are 
 gathered within the walls of the Colleges. The Fellows are 
 bound by the laws to residence, in the same manner as the 
 Scholars. These laws are enforced to the present day. 
 Though the Mastership is often held by persons of very high 
 dignity, the Masters, as well as the Fellows, reside beneath 
 the roof of their Colleges. Thus the Bishop of Bristol, as 
 Master of Trinity College, Cambridge, was living five years 
 ago with his family, in a wing of the College edifice. In 
 like manner, also, the Fellows do reside within the walls, 
 many of them^by the necessity of the case being Tutors and 
 Instructers ; and all by the laws of their foundation. Now, 
 when it is considered that many of our fathers, by whom 
 Harvard College in Cambridge was founded, were pupils of 
 the University of Cambridge in England, in consequence of 
 which they even changed the name of our village from 
 Newtown to Cambridge, it must needs be thought unques- 
 
tionable, that, in organizing their own College, they under- 
 stood the name and office of Fellow, and all other leading 
 names and offices, in the same sense, in which they were 
 used in the English Universities, in which some of them had 
 actually been Fellows. 
 
 II. The ancient form of induction, by which Fellows were 
 introduced to their office at Cambridge, is in existence, and 
 from a period anterior to the date of the Charter. It is in 
 Latin, and entitled " Sociis admittendis," for the admission 
 of Fellows ; and is, being translated, as follows ; 
 
 " 1. You will give all reverence to the honorable Magistrates 
 and venerable Ministers and President, as overseers of the College. 
 
 " 2. You will be religiously careful, so long as you shall here 
 abide, of observing all the salutary laws of this Society, as much 
 as in you lies, and causing them to be observed by all the members 
 of the College each in his place. 
 
 "3. You will be especially careful to instruct all the Students 
 committed to your charge, or who may hereafter be so committed, 
 in all literature divine and human, and in all blameless and virtuous 
 manners. 
 
 " 4. You will sedulously watch that the College suffer no injury 
 either in its property, its buildings, its revenues, or other appur- 
 tenances belonging, or which may belong unto it, during your resi- 
 dence here. 
 
 " We, then, the Overseers of the College, promise, on our part, 
 that we will not be wanting to you, in any wise ; that we will confirm 
 you by our authority and power in your legitimate functions against 
 all opposers ; and ? in proportion to the means of the College 
 and in our small measure, we will appoint you stipends, which 
 shall suffice for your food and clothing and the prosecution of 
 your studies" 
 
 Now we appeal to the high minded gentlemen whom we 
 address, and who, we are persuaded, are not farther from 
 deserting their own rights, than from knowingly invading 
 those of others ; and we beg them to reflect for a moment, 
 that this form of " admitting Fellows" was in full opera- 
 tion, when the Charter, incorporating the Fellows, was ob- 
 tained 5 and that this Charter remains, to the present day, 
 the instrument, by which alone the Fellows are incorporated. 
 We ask, if anything can be plainer than that those functiona- 
 ries, whom the Charter recognizes as " Fellows," for whose 
 " maintenance" legacies were left already, were residents at 
 
the College, Instructers there, Managers of the College pro- 
 perty, and supported out of its revenues ? 
 
 III. Another consideration, and one which might seem to 
 supersede all others, is the admission, at the present day, of the 
 proposition which we are laboring to establish. The late Dr 
 John Eliot, who long acted as a member of the Corporation, 
 in his Ecclesiastical History of Massachusetts, (Histor. Coll. 
 X. 27,) observes of Samuel Mather, that " he was the first, 
 who ever held the office of Fellow, which then was the same 
 as Instructer or Tutor." — In a collection of documents, pub- 
 lished by order of the Corporation April 18, 1812, and 
 signed J. T. Kirkland, President, it is stated, (Appendix, 
 p. 17, Note,) " From the commencement of the College, 
 and for more than half a century, the Tutors, who, with 
 the President, conducted the instruction and immediate gov- 
 ernment were called * Fellows of the College.' " — We need 
 scarcely remark, that they could have been called so, only 
 because they were so. 
 
 IV. As the last argument under this head, we shall men- 
 tion the traditionary possession of a certain lot of land in 
 
 Cambridge, well known till lately as " Tutors 1 Pasture." 
 This is a small field upon the main road, between the house 
 now occupied by Mr Professor Hedge and the old parsonage. 
 Till a year or two ago, this field was let by the Tutors and 
 the rent was received and divided by them, as a perquisite of 
 office. About twenty-five years ago, (more or less) the field 
 rented for four dollars, being one dollar each to the four 
 Tutors. At that time, real estate rose in value near the Col- 
 lege, and it was supposed that this field would command a 
 price of one thousand dollars. The Tutors, judging that an 
 income of sixty dollars annually was better than one of 
 four, determined to sell the field, and invest the proceeds 
 in some permanent stock, as a fund for them and their suc- 
 cessors. They applied to President Willard, to ascertain 
 their title, that they might transfer it. On examining the 
 original deed, which is in Latin, it was found to convey this 
 Tutors 1 lot, (which the resident Instructers for more than one 
 hundred years had let on their own account,) to the Fellows 
 of College. But by this time, the tutors had been gradually 
 excluded from the board of Fellows ; the Corporation, so 
 culled, had forced itself into their place, and claimed to be 
 
the rightful Fellows ; so that the power of the Tutors to sell 
 the land was denied. And yet so firmly was the tradition 
 rooted, that even after this discovery, the resident Tutors, 
 (though forbidden to sell,) continued to let the field on their 
 own account, down to the few last years ; when this old land- 
 mark, like so many others, has been swept away. 
 
 By these arguments, we consider it very clearly proved, 
 that the Fellows of College were the resident Instructers in 
 the commencement of the institution. It must now be recol- 
 lected, that instruction began to be given in the college in 
 1638, so that twelve years elapsed from the effectual founda- 
 tion of the College, till the granting of the Charter in 1650. 
 A class was first graduated in 1642, and five other classes in 
 the seven following years, till the charter was granted. So 
 that the function of Fellows was abundantly ascertained by 
 experience and practice. The solemn form of admission 
 quoted above, dates from this period before the Charter, nor 
 is it on any side pretended that the Fellows were any other, 
 than we have represented them to be. Accordingly on the 
 31st of May, 1650, on petition of President Dunster, the 
 General Court of the Colony granted an act of incorporation, 
 in which, after the preamble already quoted, it is enacted, 
 " that for the furthering of so good a work, and for the pur- 
 poses aforesaid, [viz. the maintenance of the President, Fel- 
 lows, &c] from henceforward, the said College, in Cambridge, 
 in Middlesex, in New England, shall be a Corporation, con- 
 sisting of seven persons, to wit, a President, five fellows, 
 and a Treasurer or Bursar ; that Henry Dunster shall be 
 the first President, Samuel Mather, Samuel Danforth, Mas- 
 ters of Art, Jonathan Mitchell, Comfort Star, and Samuel 
 Eaton, Bachelors of Art, shall be the Five Fellows, and 
 Thomas Danforth to be the present Treasurer, all of them 
 being inhabitants of the Bay, and shall be the first seven per- 
 sons, of whom the Corporation shall consist, and that the said 
 seven persons or the greater number of them, procuring the 
 presence of the Overseers of the College, and by their coun- 
 sel and consent, shall have power and are hereby authorized, 
 at any time or times, to elect a new President, Fellows, or 
 Treasurer, so oft and from time to time, as any of the said 
 person or persons shall die or be removed, which said Presi- 
 dent and Fellows, for the time being, shall forever hereafter. 
 
in name and in fact, be one body politic and corporate in 
 law, to all intents and purposes ; and shall have perpetual 
 succession, and shall be called by the name of President 
 and Fellows of Harvard College, and shall from time to time 
 be eligible as aforesaid," &c. 
 
 Without repeating any of these sentences, it is quite ob- 
 vious, as we have observed, that the Charter does not create 
 from the beginning the offices of President and Fellows ; 
 but that it incorporates their incumbents for the time being, 
 and fixes their number. The offices of President and of Fel- 
 low were well understood before and at the time of passing 
 the act, and the duties of those offices had, for a course of 
 years, been discharged, under the laws and by the appoint- 
 ment of the General Court of the Colony. It was no part of 
 the object of the Charter to create these functions, nor to 
 furnish a definition of them. They were as well ascertained 
 as any thing can be, not only from the analogy of the English 
 Universities, but from the practice of Harvard College itself. 
 It is true, therefore, that the Charter does not direct, in 
 terms, that the President and Fellows for the time being 
 should supply the vacancies that might occur, from any par- 
 ticular class of men ; yet what can be clearer than that the 
 Charter designed that the vacancies should be filled up, in 
 such a way, as that the same kind of functionaries should be 
 perpetuated ? The Colony Legislature surely thought not that 
 the " perpetual succession of Fellows" could be kept up by 
 any but Fellows ; — could be kept up by men, who possessed 
 no one quality of Fellows, as that term was understood and 
 regarded at the time. Suppose the case of a church, with 
 two elders and three deaeons, incorporated as a body of five 
 trustees, to manage the church funds, with perpetual success- 
 ion, &£c. Will any one say that this body could elect to va- 
 cancies persons not elders and not deacons ? nor discharging 
 elders' or deacons' functions in the church ? Grant that the 
 charter said nothing of the qualities of these officers, and de- 
 fined not what was to be understood by either ; will it there- 
 fore be maintained that persons might be elected to the va- 
 cancies, who, so far from being deacons or elders of the 
 church, should not even reside near it, nor perform any of 
 the functions implied in the name of these two offices respect- 
 ively ? The College Charter of 1650 is an act of incorpora- 
 
8 
 
 tion for a President and five resident Instructers and Govern- 
 ors, called Fellows then and for more than fifty years after. 
 And yet, in process of time, we find persons, acting under the 
 Charter, and bearing the name of Fellows, who possess no 
 one quality of the kind of persons incorporated, and to whom 
 perpetual succession is guaranteed. The gifts, bequests, and 
 grants made from time to time were for " the maintenance of 
 the President and Fellows," who were, for that reason, em- 
 powered by the charter " to purchase and acquire to them- 
 selves, or take and receive upon free gift and donation, any 
 lands, tenements, hereditaments, not exceeding the value of 
 £500, and any goods and sums of money whatsoever, to the 
 use and behoof of the said President, Fellows, and Scholars 
 of the said College." Notwithstanding these plain provisions, 
 that the Fellows should manage the College property, because 
 they were to be supported by it ; the Corporation, as now 
 constituted, consists of persons, who, instead of receiving 
 such gifts and donations for their own use, behoof, and main- 
 tenance, in the service of College, do hire and pay certain 
 substitutes, to perform the inferior parts of their functions, 
 retaining to themselves the higher powers and honors of the 
 society. We cannot but observe, that the charter as origin- 
 ally designed, and for many years faithfully administered, ap- 
 pears to us to have been conceived in a sound knowledge of 
 human nature. It provided that the instruction, government, 
 and financial administration should be in the same hands, 
 giving dignity and energy to each other. It is in this man- 
 ner that the great English Colleges are governed, institutions, 
 of which some possess an annual income, greater than all our 
 funds, appropriated and general. Bishop Burnet tells us that 
 the entire annual income of Magdalen College, Oxford, was 
 £40,000 sterling per annum. The whole revenues of the 
 city of Calais, in France, once formed a part of the income 
 of this rich college. At the present day, its estates are about 
 twice as valuable as in the days of Burnet, and yield nearly 
 $400,000 annually. All the concerns of this princely insti- 
 tution are managed by the Master and Fellows, the resident 
 Fellows of the house; and that too without raccountableness 
 to any other board, like our overseers. Let any body of 
 men, not Fellows of the College in its technical sense — the 
 sense in which it was understood in Massachusetts Bay in 
 
. 9 
 
 1650, as well as at Oxford or Cambridge — attempt to take 
 on themselves the administration of a college in England, and 
 it would raise a rebellion. Would raise a rebellion ? It is said, 
 in the case of Magdalen College itself, actually in part to have 
 done it. Bishop Burnet mentions the attempts of King James 
 II. to appoint the President and Fellows of Magdalen College, 
 as one of the springs of the Revolution.* Hutchinson, in 
 relating some of the authoritative steps of our government, 
 with respect to College, says, " The President of the Colony, 
 and afterwards the Governor, assumed the whole authority, 
 as they thought fit. The rights of Magdalen College, Ox- 
 ford, invaded, justly might alarm the whole nation, but Har- 
 vard College was too inconsiderable, had the proceedings 
 been ever so arbitrary and oppressive, to occasion any great 
 notice." We cannot doubt but that it is the gradual manner^ 
 in which the invasion of our charter has taken place, the 
 general irregularity too prevalent in the management of insti- 
 tutions in the earlier periods of our history, the unsettled con- 
 dition of affairs on the change of the Colony Charter, the 
 peculiar posture of the country for years before the Revolu- 
 tion, and at length a forgetfulness and oblivion of our early tra- 
 ditions, that are among the causes, which have led to the ac- 
 quiescence in the present Constitution of the College. Some- 
 thing, no doubt, may fairly be ascribed to the brevity of the 
 original instrument. It defined not any of the persons which 
 it names ; it left all to well known acceptation and to consci- 
 entious interpretation. It is well remarked by a profound 
 jurist (Mr Webster, Debates in Convention, p. 248.) " that 
 the original laws and charters were very short and imperfect, 
 and that much was left to construction." And yet what avails 
 abundance of words ? It is conceded that the word " Fellow" 
 was one of determinate meaning, in the Charter ; and volumes 
 could not have done more than render it thus determinate. 
 The worthy Court, from whom the charter of 1650 emanated, 
 knew that the word fellows was as well understood as any in 
 the language ; and in incorporating by name men who already 
 filled and discharged a certain office, and in providing that 
 the Corporation should always consist of a President, of five 
 
 * The famous case of Magdalen College is related in State Trials, IV. Iw 
 Kennet's History of England, vol. iii. and in Burnet. 
 
 2 
 
10 
 
 such officers, and a Treasurer, they did not think it necessary 
 to make a formal proviso that those five officers (viz. Fel- 
 lows) should be Fellows. This is so plain that, notwithstand-^ 
 ing the laxity with which, as we shall show, the Charter has 
 been administered, we think it impossible that the present 
 state of things should have been brought about, but for the 
 peculiar nature of the word Fellow ; in Latin Socius. This 
 word, besides its technical, academical sense, amply explain- 
 ed above, imports, in common parlance, member or associate. 
 Hence the phrase, " Fellow of the Corporation" carries no 
 incongruity with it in colloquial use, although technically it is 
 incorrect. The Corporation is composed of the " Fellows of 
 the College ;" and to say a Fellow of the Corporation is in 
 reality as absurd as it would be to say " Elders of the Cor- 
 poration," in a case where the elders of a church were incor- 
 porated. Corporation, in fact, has been familiarly used in 
 reference to College, far more than is usually the case with 
 other legal bodies. There are more corporations in Massa- 
 chusetts than in any other community of the size in the world. 
 Yet Harvard College is the only one, where the name Cor- 
 poration is thus significantly repeated. Is this because those, 
 who have for many years composed it, feeling that they were 
 not " Fellows of College," recollecting that Fellow also meant 
 member, and wishing to cling to the name, have styled them- 
 selves Fellows of the Corporation ? a phrase which happens 
 to be good sense, though in the technical acceptation of Fel- 
 low it is incorrect. 
 
 On this verbal equivoque, for such it really is, the Corpora- 
 tion, as at present constituted, can alone rest. It must con- 
 sist, by the Charter, of a President, Five Fellows, and a Trea- 
 surer. As now constituted it can produce its President, it 
 can produce its Treasurer, but when challenged to show its 
 Five Fellows, it produces Five Members of — itself ; and be- 
 cause fellow, in common parlance, happens to mean Member, 
 these five Members of the Corporation are the five Academic 
 Fellows, whose function was as determinate as that of Dea- 
 con or Elder. The very order of the words, in the Charter, 
 opposes this singular interpretation of its provisions. It does 
 not say a President, a Treasurer and five other Fellows (or 
 Members ;) but it says a President, five Fellows, and a Bur- 
 sar or Treasurer. Moreover, in thus making Fellow to sig- 
 
11 
 
 nify no more than Member, the Corporation is made to consist 
 of Seven Fellows instead of Five. The President and Trea- 
 surer are, by the Charter, Members of the Corporation, and 
 if Fellow imports only Member, then there are seven Fellows, 
 contrary to the provision of the Charter, which limits the num- 
 ber to five. 
 
 If what we have thus urged need confirmation, it may re- 
 ceive it from an inspection of the Charter, in respect to the 
 individuals, who were first incorporated, as Fellows. They 
 were Mather and Danforth, Masters of Arts of three years 
 standing ; Mitchel and Star, still Bachelors of Arts, and Eaton, 
 who took his first degree, at the Commencement previous to 
 the grant of the Charter. One can scarce believe (though 
 such is the fact) that, without any avowed and legal change 
 in the Charter, these Young Men, three of them not Masters 
 of Arts and one not a year out of College, are the individuals, 
 from whom the Corporation has descended in "perpetual suc- 
 cession" to the leading gentlemen in Boston. Let it not be 
 said that, in the infancy of the colony, there was a lack of 
 those leading characters in Church and State, of the class, 
 out of which the places of these primitive Fellows are usually 
 now filled. Far from it ; there were Cotton, Norton, Wilson, 
 Charles Chauncey, I. Mather, and all the well known civil 
 worthies, precisely that class of men, now alone looked to for 
 Members of the Corporation. Moreover there was the strong- 
 est possible inducement to place them or men like them in 
 the first Corporation ; that the College might commence under 
 favorable auspices. Still they were none of them chosen ; 
 and why ? because it was an Incorporation of Fellows, and it 
 was well known that no gentleman in civil office or in the 
 pastoral calling would come to College and be a Fellow. So 
 essential was it that the Fellows should be resident Instruc- 
 ted, that individuals were incorporated, in the Charter, of 
 great youth and inexperience, but still, of necessity, because 
 it was required that Fellows should be Fellows, should per- 
 form the offices, which that name is well known to imply. 
 They had not learned that Fellow was only another word for 
 Member ; and that being elected into the Corporation consti- 
 tuted a person ipso facto, a Fellow ; whether he did or did not, 
 in any degree, correspond to the well known academical im- 
 port of the name. 
 
12 
 
 Finally the practice was long in accordance with this in- 
 terpretation of the Charter. It is a maxim obviously just in 
 itself, and laid down as a principle of law by Lord Mans- 
 field,* that " if the words of the Charter are doubtful, the 
 usage under it will tend to explain their meaning." After 
 What has appeared, we do not allow that the words of the 
 Charter are doubtful ; on the contrary, we apprehend, that a 
 case can rarely happen of a definition of an official term, in a 
 Charter, better substantiated than that, which we have given 
 to Fellow. Granting its meaning, however, still uncertain, 
 what light does usage throw upon it. The document cited 
 above, officially published in 1812 by the Corporation at that 
 time, says, that for more than a half Century the resident In- 
 structed and Governors were called Fellows. In this Coun- 
 try, the usage of more than half a Century is a prescription, 
 not lightly to be disregarded. We have examined the Col- 
 lege Records, with a view to find when and by what occasion 
 the innovation began. The early records are imperfect, and 
 do not throw full light upon the subject. We presume, 
 however, that it was earlv found that five Instructers, in addi- 
 tion to the President, was a greater number than was wanted 
 in the infancy of the College. About the year 1672, on the 
 accession of President Hoar, partly from his alleged incom- 
 petency and partly from the disasters of the times, the num- 
 ber of Students dwindled from small to almost nothing. In 
 the year 1672, there were no Graduates, in 1673 there were 
 but four, in 1674 there were but three, and in that year Dr 
 Hoar resigned. The appointment of Dr Hoar had not only 
 proved a signal for the diminution of the Students, but for the 
 resignation of the Fellows. As the want of Students to be 
 taught precluded the necessity of Fellows to impart instruc- 
 tion, and as, at the same time, the Corporation were warned 
 by the Overseers to keep their number of seven full. Mr 
 Oakes, then Minister of Cambridge, and Mr Shephard, Min- 
 ister of Charlestown, were chosen Fellows. In 1673, incon- 
 sequence of some disagreement with Dr Hoar, these gentle- 
 men and two others resigned, leaving four vacancies. The 
 Corporation, on the admonition to keep the board full, for 
 fear of forfeiting the Charter, and President Hoar having now 
 
 * Cowper 250, cited ia Selwyn's Nisi Prius, II. 682. 
 
13 
 
 resigned, reelected Mr Oakes of Cambridge, Mr Shephard 
 of Charlestown, and elected Mr I. Mather. This is the first 
 instance, which we have found of the election of nonresi- 
 dents ; and with respect to Mr Oakes, minister of the church 
 here, he could hardly be called so. 
 
 Different opinions, no doubt, will be held, as to the con- 
 duct of the Corporation, in filling up their vacancies, even 
 with nonresidents, in order not to avoid violating the Charter. 
 Surveyed with modern strictness, such an evasion would pro- 
 bably not be approved. A Corporation requiring five Fel- 
 lows, would not be thought to be perpetuated by electing 
 persons acknowledged not to be Fellows, in the ordinary 
 sense of the term as then understood. In modern times, as 
 we understand, the law requires no impossibilities ; and had 
 the number of real Fellows been reduced to two or even to 
 one, by the state of the times, those two or that one could 
 lawfully conduct the College, and afterwards, as circumstances 
 admitted and candidates offered, fill up the number. To 
 fill up vacancies, by persons not Fellows, would now be 
 thought a more violent invasion of the Charter, than, from 
 unavoidable circumstances, to leave a vacancy unsupplied. 
 
 That those who directed the affairs of the College were 
 apprehensive as to the effect of this new policy, and desirous 
 to secure it legal sanction, is obvious from the attempt made, 
 at this time, to procure a new Charter. Such an instrument, 
 bearing date October 8, 1672, was drawn up and may be 
 found in the Appendix to the documents published by the 
 Corporation in 1812, p. 19. The articles, in which it differs 
 from the old and only Charter, sufficiently show the nature 
 of the changes proposed. The venerable Charter of 1650, 
 spoke of legacies and gifts which had been made for the sup- 
 port and " maintenance of the President and Fellows of 
 Harvard College." — This new Charter speaks, in the corres- 
 ponding place, of the donations made " for the maintenance 
 of the Governors and Government" of the College. The 
 old Charter ordered that the Corporation should consist of 
 " a President, five Fellows, and a Treasurer." The new 
 Charter omits this specification wholly, and merely enume- 
 rates the persons, who shall be the President and Fellows 
 respectively. The history of this Charter is not well ascer- 
 tained. Many of its most important provisions appear never 
 
14 
 
 -to have gone into operation. As early as 1707, the General 
 Court of the Province, after this and several other attempts 
 to change and renew the Charter had been made, enact- 
 ed, "that the Charter of 1650 had never been repealed or 
 nulled." The Appendix to the collection of documents pub- 
 lished in 1812, observes of this Charter, (p. 21,) "that there 
 is no evidence that the President and Fellows ever accepted 
 this Charter or acted under it." — No argument therefore 
 ought to be drawn, from the temporary usage in conformity 
 with its provisions. 
 
 We have observed that several attempts to alter the Char- 
 ter were made between 1672 and 1707. Applications were 
 repeatedly made to England, under the new political organi- 
 zation of the Province in 1691. Three College Charters 
 were successively drawn up and sent to England, in which 
 the number of the Corporation was successively increased 
 from seven to ten and even seventeen ; and in the interval, 
 while the royal signature to these several Charters was await- 
 ed from England, the College was organized upon several of 
 the new plans successively. At length in 1707, a time when 
 stricter notions of law began to prevail, the friends of the 
 College perceived to what dangers it had been exposed by 
 these rash violations of the only Charter, which had any legal 
 force, and the General Court admonished the Corporation to 
 govern themselves henceforward by that instrument. When 
 this injunction reached the Corporation, it was composed (in 
 perilous violation of the Charter,) of fourteen members, of 
 which two only were lawful resident Fellows. These two 
 were Henry Flynt and John Remington, who in the list of 
 " Socii" in the College Catalogue, are the two first on the 
 list, the names of no Fellows, for the first seventy years from 
 the foundation of the College, being inserted in that list ! On 
 receiving this injunction, the Corporation was forthwith re- 
 duced to the legal number, as if an arithmetical compliance was 
 all the Charter enjoined. The newly constituted board was 
 composed of Rev. Mr Hobart of Newtown, Mr William Brat- 
 tle of Cambridge, Mr Eben. Pemberton of Boston, Mr Tutor 
 Flynt, and Tutor Remington and Thomas Brattle, Treasurer. 
 
 The strong good sense of those concerned, however, was 
 not long satisfied with this fiction of " Fellows of the Col- 
 lege," living in Newtown and Boston. A few years only 
 
15 
 
 elapsed, from the last mentioned events, when a serious effort 
 was made by the Overseers and the General Court to com- 
 pel the nonresident majority of the Corporation to conform to 
 the Charter. We refer to the case of Tutors Sever and 
 Welsted ; a case, which for a long time engaged the atten- 
 tion of both boards of the College Government and of the 
 General Court. This affair is now indeed forgotten ; but, at 
 the time, it excited the greatest attention throughout the 
 Province, and within the sphere of College, it threw a shade 
 over the last years of the brilliant Presidency of Leverett. 
 Toward the point in hand it is by far the most important 
 statement of a historical nature, which we have to make. 
 
 At the beginning of the year 1722, the Corporation, besides 
 the President and Treasurer, consisted of Rev. Dr Appleton 
 of Cambridge, Rev. Dr Colman, and Rev. Mr Wadsworth 
 of Boston, Rev. Mr Stevens of Charlestown, and Mr Flynt, 
 the last being the only resident Fellow. The other resident 
 Fellows were Messrs Robie, Sever, and Welsted, (Professors 
 there were none at this time,) neither of whom had been al- 
 lowed by the Corporation, to become a member of that body. 
 A general sentiment prevailed, that, by this exclusion of per- 
 sons who were of right Fellows, the Charter of the College 
 was violated. Though opinions differed as to the proper 
 remedy, not only the Overseers, and both houses of the Le- 
 gislature, but even the Corporation itself, felt the necessity of 
 admitting the resident Fellows to the rights secured to them 
 by the Charter. The Rev. Mr Stevens of Charlestown, a 
 member of the Corporation, died in 1722, and one of the 
 resident Instructers presented a memorial, both to the Cor- 
 poration and Overseers, claiming the place. The Corpora- 
 tion, however, persisting in the course on which for fifteen 
 years they had acted, rejected the memorial ; elected Rev. 
 Dr Sewall of the Old South, Boston ; and presented him for 
 approval to the Overseers. The Overseers refused to 
 concur ; and a Committee of their body, to whom the 
 abovementioned memorial had been referred, reported, that 
 " they judge it proper that the vacancy in the Corporation, 
 by the decease of Rev. Joseph Stevens of Charlestown be 
 filled up by the election of a resident Fellow, in his stead ;" 
 which report being read was accepted by the Overseers. This 
 being communicated to the Corporation, they thought fit, 
 
16 
 
 " saving to themselves the right of electing members of the 
 Corporation, upon any vacancy, according to the powers 
 vested in them by the College Charter, and protesting against 
 their acquiescence being made a precedent," to choose Mr 
 Tutor Robie. Thus the board consisted of two resident 
 Fellows and three nonresident members. Meantime the far 
 more important controversy alluded to arose. 
 
 To the illegality of electing " Fellows of the House" in 
 contradistinction from " Fellows of the Corporation," a dis- 
 tinction wholly unknown to the Charter, and the early prac- 
 tice under it, the Corporation had added the new and really 
 oppressive innovation of choosing the said Fellows of the 
 House or Tutors, for terms of three years, the choice to be 
 renewed at discretion. In 1716 they passed an order that 
 " no Tutor or Fellow of the house, now or henceforth to be 
 chosen, shall hold a Fellowship, with salary, for more than 
 three years, except continued by new election." By this 
 extraordinary assumption, the few remaining rights of Fel- 
 lows were annihilated. They were not only thrust out of 
 the Corporation, but made dependent on their will to be ex- 
 ercised triennially. In 1716, the same same year, in which 
 this order was passed, Mr Nicholas Sever was chosen a " Tu- 
 tor or Fellow of the House;" and in 1719, in pursuance of 
 the last named arbitrary rule, he was re-chosen by the Cor- 
 poration. His second term of three years expired in 1722, 
 and the Corporation, for reasons unknown to us, refused to 
 re-elect him, and declared accordingly that he had ceased to 
 be " a Fellow of the House." Against this decision, Mr 
 Sever presented memorials both to the Corporation and the 
 Overseers. The overseers, justly considering that the Charter 
 knew no such thing as a triennial election of a Fellow, voted 
 " that the said Mr Sever still continues a Fellow, notwith- 
 standing what has been done with a reference to him, by the 
 Corporation." This vote was passed by the Overseers June 
 3, 1722. In consequence of this vigorous decision of the 
 Overseers, the Corporation agreed as follows ; " that, saving 
 the proper rights and privileges of the Corporation, and to 
 prevent further debates and contentions (which we look on as 
 threatening to the welfare of the College) that the said Mr 
 Sever again act as Tutor or Fellow of the House." Here 
 we cannot but notice, with regret, that while the Overseere 
 
17 
 
 frankly pronounce Mr Sever " a Fellow," the Corporation, 
 even in seeming to yield, obtrude their own invented distinc- 
 tion of " Fellow of the house ;" and even this only with an 
 acknowledgment of Mr Sever's acting as such. 
 
 The views of the Overseers, consisting of the Governor, 
 the Lieutenant Governor, the eighteen Councillors, and the 
 Ministers of the six neighboring towns, are by this time ap- 
 parent. As a friendly mode of introducing the resident Fel- 
 lows into the Corporation, without ejecting the nonresident 
 incumbents, and thinking, moreover, that a more numerous 
 Corporation was in itself desirable, on the same day on which 
 they passed the abovementioned vote, with respect to Mr 
 Sever, viz. June 13, 1722, they addressed a memorial to the 
 General Court, praying that the number of the Corporation 
 might be enlarged, and that, in so doing, " regard be had to 
 the resident Fellows or Tutors, that they may be of that num- 
 ber." This memorial of the Overseers was committed in 
 Council to a most respectable committee, of whom Hon. 
 Paul Dudley was one. To this committee the House of Rep- 
 resentatives also added some of their own most respectable 
 members. On the 2Sth of June, 1723, Benjamin Lynde 
 Esq. for the joint committee, made the following report. 
 
 " The committee appointed to consider the memorial of 
 the Overseers of Harvard College in Cambridge, having 
 perused and considered the Charter granted to the said Col- 
 lege, by the General Court of the Colony of Massachusetts 
 Bay in the year 1650 (which is their present constitution) 
 and also the memorial aforesaid, came to the following reso- 
 lutions, which being put in practice would answer the end of 
 the memorial and be more beneficial to that Society, than 
 enlarging the number of the Corporation. 
 
 " 1. That it was the intent of the said College Charter, that 
 the Tutors of the said College, or such as have the instruction 
 and government of the Students, should be the Fellows and 
 members of the Corporation of the said College, provided they 
 exceed not five in number. 
 
 " 2. That none of the said Fellows be Overseers. 
 
 " 3. That the said President and Fellows of the said College, or 
 the major part of them, are not warranted by the said Charter of 
 the College to fix or establish any salary or allowance for their 
 services, without the consent of the Overseers." 
 
 3 
 
18 
 
 This wise and judicious report being read in the House of 
 Representatives was accepted, and " it was ordertd that the 
 Corp oration for the future practice accordingly." This order 
 of the House the Council concurred in ; and the Governor 
 (Shute) gave his assent to the order, with the proviso, that 
 the " Rev. B. Colman, Rev. B. Wadsworth, and Rev. N. Ap- 
 pleton, are not removed by said order, but still remain Fel- 
 lows of the Corporation." The Governor's wish appears to 
 have been to spare the feelings of these gentlemen, and give 
 them an opportunity, by resignation, to avoid an abrupt remo- 
 val from the Corporation. 
 
 The House of Representatives immediately sent a message 
 to the Governor, stating, that " whereas he has been pleased 
 to make a proviso, in his consenting to the votes passed by 
 both houses, relative to Harvard College, which has a tend- 
 ency entirely to defeat the main design and purpose of these 
 votes, therefore to desire his excellency to pass absolutely 
 thereon." To this message the Governor answered, that he 
 made the proviso agreeably to the wishes of the Council, 
 and of the Overseers of the College, and should adhere to it, 
 till another Overseers' meeting. The House of Representa- 
 tives, on hearing this, voted that the Council, in giving such 
 advice to the Governor, had acted in contradiction to their 
 own vote of acceptance of the report of the joint committee, 
 and therefore insisted on their desire, that the Governor 
 would pass absolutely upon the orders. 
 
 Nothing, however, decisive was done this session. In the 
 fall session of the same year (1722) Nov. 10. " the House 
 of Representatives, with great concern, intimated that it is of 
 the last consequence to Harvard College, that the members 
 of the Corporation take all possible caution, that they keep 
 strictly within the rules prescribed in their constitution, in all 
 their acts, that so their ancient and well established privileges 
 may not, in the least wise, be endangered." To this intima- 
 tion, the Corporation replied, by a request to be heard before 
 the General Court ; which request was not granted ; but 
 nothing farther in the premises was then done. 
 
 In January, 1723, the same subject was resumed ; the three 
 resolutions given above were re-enacted and sent up for 
 concurrence to the Council, by whom the subject was defer- 
 red to the May session. 
 
19 
 
 At the session in May, the Tutors Sever and Welsted pre- 
 sented a petition to the House of Representatives, praying 
 that the Corporation of Harvard College be organized, agree- 
 ably to the abovementioned resolutions of the House of Rep- 
 resentatives. On receipt of this petition, the House sent to 
 the Council to know whether they had acted on the revived 
 resolutions of the House ; which, as we have observed, had 
 been referred by the Council to this session. Nothing having 
 been done by the Council, the House referred the petition 
 of Messrs Sever and Welsted to the next session in August. 
 On the first day of that session, they resumed the subject 
 and re-enacted their former resolutions and doings, and sent 
 them to the Council. The Council meantime themselves 
 took up the subject and having received a memorial from the 
 Corporation, praying to be heard, sent down the prayer of 
 said memorial to the House. The House of Representatives, 
 by a unanimous vote, refused to admit the Corporation to a 
 hearing ; so decided was the opinion of the popular branch 
 of the Legislature. Unable to procure for the Corporation 
 a joint hearing, the Council granted them a separate hearing 
 before their own body, August 23, 1823, and the next day, 
 they non-concurred in the resolutions of the House, in which 
 they had the year before concurred. 
 
 Here the affair for the time stopped. President Leverett 
 died May next, and difficulties occurring, in the choice of his 
 successor, no other subject engaged the attention of those 
 interested in the College. Professor Wigglesworth had been 
 chosen into the Corporation, in the place of Tutor Robie, 
 shortly before President Leverett's death ; and it was voted, 
 that henceforward, " the Professor of Divinity (at that time 
 the only Professor) should be a member of the Co?y oration." 
 In 1725, Mr Wadsworth was chosen President. A vacancy 
 having thus occurred f in the Corporation, Mr Sever was unan- 
 imously chosen to fill it. As there were before two resident 
 Fellows in the board, Professor Wigglesworth and Tutor 
 Flynt, the choice of Mr Sever gave a majority in the Cor- 
 poration to the resident Instructors, and sufficiently showed 
 that it was judged expedient to yield to the strongly pro- 
 nounced public opinion. From 1725 to 1767, a period of 
 42 years, the Corporation continued to consist of three resi- 
 dent Fellows and two nonresident members. In 1767, there 
 
20 
 
 were two resident Fellows, and three nonresidents in the Cor- 
 poration. In 1774, and again in 1778, the plurality was re- 
 stored to the resident Fellows. Since the last named year 
 no Tutor has been elected, nor has there ever been a major- 
 ity of resident Fellows in the Corporation. Up to 1793, 
 however, there was one resident Professor. Dr Wiggles- 
 worth the Younger, died in 1793, and James Bowdoin, Esq, (!) 
 succeeded the reverend Professor. For seven years the Cor- 
 poration remained without a resident Fellow. In 1800 Dr 
 Pearson was admitted into the board, and left College in 
 1806. Since that time, to the present day, the doors of the 
 Corporation have been shut on the resident Fellows. A pri- 
 vilege by Charter wholly theirs, long enjoyed by them alone, 
 solemnly vindicated to them, a century ago, by the Provincial 
 Assembly, possessed by them in a majority for about a half 
 of the last hundred years, was thus in 1806, after about one 
 hundred and seventy years possession, entirely wrested from 
 them, by the nonresident Members of the Corporation ! 
 
 To revert to the important case of Messrs Sever and Wel- 
 sted, from which we have been led by the foregoing de- 
 duction, we would observe, by way of recapitulation, that 
 nothing could be established by wider consent, than the right 
 of the resident Fellows to constitute the Corporation. In 
 1722, the Overseers nonconcurred in the election by the 
 Corporation of Dr Sewall of the Old South, and gave it as 
 their opinion to the Corporation, that a resident Fellow ought 
 to be chosen, and Tutor Robie was chosen accordingly. The 
 Corporation, the same year, having refused to re-elect Mr 
 Sever, as a Fellow of the House, the Overseers declared that 
 nevertheless he was a Fellow ; and the Corporation yielded 
 and continued him in office. The same day, the overseers 
 presented a memorial to the Council, praying to have the 
 numbers of the Corporation enlarged, with the express pur- 
 pose of bringing the resident Fellows into it. The House of 
 Representatives and Council justly esteemed it more proper 
 and safe to administer the Charter, as it was, and passed the 
 three resolutions to that effect, which we have given above. 
 These resolutions actually received the Governor's signature, 
 though with a proviso, that the nonresident incumbents should 
 not be ejected. At the present day, we apprehend that no 
 such proviso would be of any avail ; and that a bill passed 
 
21 
 
 by both Houses and signed by the Governor wonld be a law. 
 Otherwise the Governor might, at any time after passing a 
 law, hamper his signature with a proviso, that would defeat its 
 provision. If he could subjoin a proviso one moment after, 
 why not an hour, a day, a year after ? We do actually there- 
 fore believe that the orders in question passed in perfect 
 legal form, notwithstanding Governor Shute's proviso; an 
 anomalous nullity of no account. However this be, the Go- 
 vernor had no objection to the principle of the bill. Nay, 
 even the nonresident majority of the Corporation themselves 
 expressed a wish to bring in the resident Fellows, by enlarg- 
 ing the number of the Corporation. In the close of the reso- 
 lutions above quoted, the General Court say, that, " if these 
 resolutions are put in practice, they will be more beneficial to 
 the Society, than enlarging the number of the Corporation." 
 To this remark the Corporation, in their memorial, reply, 
 " We must still crave leave humbly to insist on a contrary 
 opinion, and say that we should be heartily glad and think it 
 much for the safety of the college, if the honorable Court in 
 their wisdom think it proper to enlarge the Corporation to 
 twice its present number or more, because of the large pow- 
 ers, with which we think it is entrusted, always provided that 
 the resident Tutors should never he able to make a major part, 
 because we think it contrary to the light of nature, that any 
 should have an overruling voice in making those laws, by 
 which themselves must be governed in their office-work, and 
 for which they receive salaries." We shall presently reply to 
 this last argument. We only hint here, that it is a question 
 not of the " light of nature," but the legal provisions of the 
 Charter ; and here we hold, that it is agreeable to the light of 
 nature, that chartered rights be tenderly and sacredly respect- 
 ed. Single abuses, which experience points out, may be 
 checked in a thousand ways — -(in the case of College by the 
 salutary revision of the Overseers,) but this license of violat- 
 ing and altering Charters is disastrous in the single case and 
 still more so as a precedent. 
 
 We quoted the memorial of the nonresident majority of the 
 Corporation, for the sake of showing, that even they thought 
 that it would be " much for the safety of the College," to in- 
 troduce the resident Fellows into the board of Corporation. 
 Having thus alluded to this memorial, which is preserved in 
 
22 
 
 the College records, and was drawn up with great care 
 by Dr Colman and Mr Wadsworth, at the time when the 
 question was warmly discussed, and is therefore likely to con- 
 tain the strength of the argument in favor of nonresident 
 members of the Corporation, we shall briefly examine it. 
 The memorial consists of counter reasonings, on the resolu- 
 tions of the General Court, quoted above. The first resolu- 
 tion imported, that in the opinion of the General Court tho 
 Charter required that " the Tutors of the College or such as 
 have the instruction and government of the Students should 
 be Fellows and Members of the Corporation of the said Col- 
 lege." To this the memorial rejoins, that the Charter, " if 
 it had intended this, would plainly have expressed it, which 
 might easily have been done, and we humbly think ought to 
 have been done. But instead of that, when the first seven 
 persons are named in the Charter, it immediately adds, ' all 
 of them being inhabitants of the Bay.' They would as easily 
 have said, all of them being residents of the College, or within 
 the town of Cambridge, if that had been really the intention 
 of the Charter. But it being only given as a reason or quali- 
 fication, that they were inhabitants of the Bay, it seems plain- 
 ly to follow, that the Charter never intended any such thing, 
 as that the members of the Corporation must be resident 
 Fellows (or Tutors) of the House." For what reason, then, 
 we would reply, within the compass of human imagination to 
 devise, were all the first Fellows residents of the House ? 
 By what miraculous coincidence did it happen, that the 
 Charter, passing over the illustrious worthies in Church and 
 State, should have settled down on five individuals, of whom 
 the oldest was a Master of Arts of three years standing, and 
 the youngest a Bachelor of Arts of ten months standing ? 
 But the nonresident authors of this memorial are a little too 
 hasty in saying, that " inhabitancy in the Bay, is the only 
 limitation expressed in the Charter." What does the Char- 
 ter provide ? Does it not say their shall be Jive Fellows 9 Is 
 being a Fellow no quality ? Did the word mean nothing °l 
 Is it purely idle ? When in the preamble to the Charter it is 
 said legacies have been left for " the support of the Presi- 
 dent and Fellows ?" Does the word mean nothing ? Were 
 the legacies left for the support of " all the inhabitants of the 
 Bay ?" Was not the office of Fellow one, which had not 
 
2S 
 
 only its well understood sense, but its formal rules, which we 
 have quoted above, and which were in full force when the 
 Charter incorporated the Fellows ? Why the fact of being 
 inhabitants of the Bay was specified we know not. It may 
 have been to give an intimation that those who were to con- 
 duct the business of the College were already on the ground ; 
 that they were not yet expected from England, whence the 
 the public servants in Church and State were then often ar- 
 riving. 
 
 The memorial next argues from the duties of the Corpo- 
 ration, that it could not have been intended, that the board 
 should be composed of resident Fellows ; the duties being too 
 important for resident Fellows to execute. This argument is 
 a memorable instance of trying to prove too much. It is a 
 historical fact that the members of the Corporation, named in 
 the Charter, were all residents, a majority of them not Mas- 
 ters of Arts. Now to say that resident Fellows are not in 
 the nature of things competent to the discharge of the duties 
 of the Corporation, is to give an humble idea of the discre- 
 tion of the framers of the Charter and the founders of the 
 College, who constituted the first board of such residents 
 exclusively. A singular argument truly, to prove, from the 
 arduous nature of the duties, that the Charter could not have 
 intended them to be discharged by residents, when that very 
 Charter nominates none but residents. Besides, this is a 
 question not of the wisdom or discretion of the Charter, but 
 of its meaning. If chartered rights depended on the acknow- 
 ledgment of their wisdom and expediency by all succeed- 
 ing ages, even on the part of those most interested to question 
 them, Charters would be as worthless as wastepaper. One 
 may say, his neighbor spends his money foolishly, or that he 
 pursues a miserable system of tillage on his farm : he may 
 enter into an argument " from the light of nature," that the 
 laws, regulating the transmission of property, never could be 
 designed to encourage a wasteful and imprudent rotation of 
 crops ; and he may maintain that therefore he has a right to 
 enter and eject him. Though the courts of law should think 
 him the best farmer, it is doubtful whether they would sup- 
 port his claim. On this whole topic, however, of expediency, 
 some considerations will presently be urged, which will far- 
 ther illustrate the weakness of the argument we are combat- 
 ting. 
 
24 
 
 The memorial of the Corporation next argues from cus- 
 tom and usage. From the view we have taken above, of the 
 facts on this point, it is not without surprise that we find this 
 argument to have been hazarded by them. Their way of 
 maintaining it does more credit to their zeal than to their 
 logical accuracy. The proposition is, that " it is proved by 
 usage, that the Charter of 1650 did not require that the Fel- 
 lows be residents ;" the argument is, " that the new and abortive 
 Charter of 1672, and the subsequent unsuccessful and abor- 
 tive Charters did not require the residence of Fellows." But 
 we have already shown that the new Charter avowedly de- 
 parted from the old ; it departed from it, designedly on this 
 very point. At all events, it is a singular argument, that be- 
 cause the new Charter of 1672 did not intend the residence 
 of Fellows, therefore the old Charter, which was to be su- 
 perseded by the new one, did not intend it. If the argument 
 from usage is wanted, we quote it again in the words of the 
 Corporation of 1812, (of whom not one was a resident,) that 
 from the commencement of the College, for more than half a 
 century, the Tutors, who with the President conducted the 
 instruction and government, were called " Fellows of the 
 College." 
 
 The other arguments in this memorial are principally found- 
 ed in expediency. They are of little weight, therefore, in ascer- 
 taining the meaning of the Charter, and the whole subject of ex- 
 pediency will presently be alluded to. The memorial instances 
 in the management of the funds, which the Corporation esteems 
 to be wholly in itself, and to the choice of President, which the 
 memorial esteems too important to be confined to resident Fel- 
 lows. Now, on the possibility of evils to arise in reference 
 to these two points, there may be difference of opinion. We 
 think that the right and power to manage property generally 
 bring with them the ability to manage it. As a general axiom, 
 it would perhaps be said, that a woman was not fit to manage 
 an empire. But the success with which the sceptre has been 
 swayed by queens is almost proverbial. We have never heard 
 it said that the princely funds of the English universities were 
 badly managed by the Fellows ; and there is no species of 
 property in Europe, whose management discloses more thrift, 
 than the estates of the religious houses, which are in the hands 
 of monks and nuns. Besides, is this an argument for dis- 
 
25 
 
 franchising the resident Fellows ? Nothing short of criminal 
 abuse and neglect, or overt acts of intolerable mismanagement, 
 ascertained by process of law, furnish ground for so harsh a 
 procedure. A court of justice would disdain the plea of any, 
 who, happening wrongfully to have become de facto the in- 
 cumbents of a trust, should argue that the Trustees de jure 
 were young and inexperienced. Besides we beg leave to 
 observe that the resident Instructers now here, as well as those 
 who for a century have been, and are ever likely to be here, 
 however inexperienced they may be held, would be able to 
 furnish five Fellows, whose ages would equal those of the 
 present Corporation. So too in the choice of President, we 
 do not perceive, in fact, the dangers, which the memorial 
 foresees, from entrusting the choice to the resident Fellows. 
 The Charter saw no such danger, when it named the five 
 first Fellows, and gave them the power of electing the Presi- 
 dent. The election depends on the approbation of the Over- 
 seers, which is a sufficient check. While, however, we per- 
 ceive no danger in giving this power to the resident Fellows^ 
 we do perceive, and with regret, that the Corporation, while 
 composed of a majority of non residents, gradually fell into 
 the highly indecorous practice of electing each other to the 
 Presidency, as a matter of course, sometimes pro forma, 
 sometimes effectively. We must smile at the simplicity of 
 these venerable fathers Colman and Wadsworth, (who drafted 
 this memorial,) who in 1723 argue that resident Fellows can- 
 not be trusted with the " great work" of choosing the Presi- 
 dent, and in 1724 choose, first the one, and then the other of 
 themselves I although according to the late Dr Eliot " the 
 public voice cried aloud for Dr Mather, and it was declared, 
 even in General Court, that he ought to be President" So 
 in 1773, on the resignation of President Locke, three mem- 
 bers of the Corporation were successively chosen President by 
 each other against the protest of one of them, Dr A. Eliot, 
 " to whom it appeared, as to many other persons in the Pro* 
 vince, a deviation from the line of decorum, for the gentle- 
 men of the same body to choose each other into office, for 
 the sake of the honor, when it was well understood they 
 would not accept it." We grant the power of choosing a 
 President and other officers is important — highly so. The 
 power of controlling the choice of those who are to be our 
 4 
 
26 
 
 colleagues, with whom we are to act in harmony on great and 
 often on confidential subjects, with whom we are to meet in 
 close deliberation, is to us an all important power ; and what 
 is the inference ? That it may therefore be wrested from us ? 
 That we must resign it, precisely because it is worth having ? 
 That we shall not exercise it, because it is the most essential 
 among our chartered rights ? Such of the gentlemen, whom 
 we now address, as are lawyers, well know that in the opinion 
 of Chief Justice Marshall, pronounced in the Dartmouth Col- 
 lege case, this very argument appears in the reverse form 
 from that, in which it is presented by the memorial of the 
 Corporation. " According to the tenor of the Charter," says 
 the Chief Justice, "the Trustees might without impropriety 
 appoint a President and Professors from their own body* 
 This is a power, not entirely unconnected from an interest" 
 From this unquestioned position, the Chief Justice briefly 
 argues, that all laws of the state affecting this interest, are 
 unconstitutional. How much more illegal and void any by- 
 law or usage, which violates so important a vested right. 
 
 Thus far we have treated this question as one of right and 
 of history. If the conclusion to which we have come can be 
 equally defended on the score of expediency, there would 
 seem to be nothing wanting to the strength of the argument. 
 Many motives of delicacy and respect toward the Corpora- 
 tion have induced us to forbear the latter ground, and to leave 
 the subject essentially on those already stated. It will not, 
 however, be thought intrusive, if we very briefly submit to the 
 consideration of the Corporation a view of some of the ad- 
 vantages, which we think would result from restoring the 
 administration of the government of the College to its Char- 
 tered form. 
 
 1. This measure would place the effective management of 
 the College affairs in the hands of practical men ; men whose 
 lives have been spent in the business of conducting educa- 
 tion. Such a practical acquaintance with the great object of 
 the Institution appears to us a very important qualification, 
 toward administering its affairs. Not to possess it, of course, 
 implies no reproach, being a mere matter of fact ; and in 
 saying that the resident Instructers appear to us, on this ac- 
 count, best fitted to administer the Institution, we repeat only, 
 in a particular case, a maxim of undisputed, universal cor- 
 rectness. 
 
27 
 
 In the next place, by restoring the chartered Constitution 
 of the College, its affairs will be committed to those, whose 
 main business in life it would be to conduct them ; and this 
 we think an equally important consideration. The College 
 is a very extensive establishment. Its affairs are numerous, 
 complicated, and important. To understand them requires 
 much study and attention ; to administer them much time. 
 We cannot, therefore but think it an obvious advantage, that 
 their management should be in the hands of those, who are 
 professionally connected with the College. We would not 
 intimate that the board of Corporation, as now constituted, 
 does not give to College affairs all the time and attention in 
 its power ; but they are time and attention taken from the 
 calls and cares of laborious and honorable offices. The 
 members of the Corporation, for near twenty years, have, 
 with a single exception, been all gentlemen burdened either 
 with the cares and duties of the parish ministry, or with those 
 of full practice at the bar, or of responsible offices in the 
 State. It is plain that calls like these can leave but little 
 leisure for the discharge of so arduous a duty, as that of ad- 
 ministering the government of the College. 
 
 Besides being men, the business of whose lives is concen- 
 trated at College, the resident Instructers are persons, whose 
 reputation, happiness, and even pecuniary interest are imme- 
 diately dependent on its welfare ; who are therefore bound 
 by the strongest ties to promote its progress. This cannot 
 apply to any but themselves. The clergymen and lawyers 
 of Boston, who have for many years composed the Corpora- 
 tion of College, (though entitled to all the consideration that 
 can be paid them,) cannot, of course, be said to have had 
 their interests and reputation deeply pledged upon the Col- 
 lege. The clergyman's great pledge in life is to his church ; 
 the lawyer's to his character at the bar and on the bench. 
 It is not in human nature, that they should make those efforts 
 for an institution, which may be naturally expected from men, 
 whose whole standing in society depends upon it. An exam- 
 ple from the case of two honored and beloved individuals, 
 (who have both been called from the stage,) will illus- 
 trate this ; we refer to the Rev. S. C. Thacher and the 
 late Professor Frisbie, men equally dear to the friends of re- 
 ligion, virtue, and learning. At the time when Mr Thacher 
 
28 
 
 was sinking under the weight of his parochial duties, and 
 while Mr Frisbie's health was as yet good, the former gen- 
 tleman was elected to the Corporation. No one will deny- 
 that Mr Frisbie was a person, who for his close connexion 
 with the College was far more suitable to conduct its affairs 
 than one, who, with feeble health, was staggering under the 
 burden of one of the largest parishes of the country. And 
 yet Mr Thacher, in his long residence at Cambridge as libra- 
 rian, possessed an advantage, which not one of the present 
 gentlemen of the Corporation enjoys. 
 
 Lastly, we would observe, under this head, that by restor- 
 ing the administration of College to the resident Instructers, 
 it will be given to men, who besides the peculiar advantages 
 hinted at, are likely to possess a fair average of all those 
 general qualities, which the duty requires, in as great a de- 
 gree as any other persons. We desire not to be thought to 
 speak presumptuously ; we mean only that out of the large 
 number of resident Instructers, chosen to the various import- 
 ant offices here, we cannot but think that five individuals may 
 always be found, who, on the score of age, personal respect- 
 ability, and general competence, are fully equal to the duties 
 of the office of a member of the Corporation. 
 
 II. A second beneficial effect of restoring the College to 
 the chartered form would be that of bringing the Board of 
 Overseers into greater activity. This venerable board is a 
 constituent part of the Corporation itself, and the part earliest 
 created. It was established A. D. 1642, with nearly all the 
 powers of the Corporation as conferred by the Charter of 
 1650. By this latter Charter, the President, Fellows, and 
 Treasurer, were bound " to procure the presence" of the 
 Overseers, when they assembled to do College business. 
 This being found inconvenient, an Appendix to the Charter was 
 granted seven years after, by which the President and Fel- 
 lows were enabled to act alone, subject to the approbation or 
 disapprobation of the Overseers. It is plain, therefore, that 
 the Overseers, at first the sole legislative power, were always 
 designed to be a very important and active branch. It has, 
 however, been the unfortunate operation of the mode, in 
 which the Corporation has been constituted, while it destroy- 
 ed the powers of the resident Fellows, on the one hand, to 
 impair those of the Overseers on the other. 
 
29 
 
 It was well known to the sagacious framers of the Charter, 
 that it would be desirable to infuse into the Academic go- 
 vernment one element drawn from public and civil life. We 
 are aware that a government of Academical men alone might 
 be exposed to contract a kind of monkish rusticity, and some- 
 times to err from ignorance of public affairs and active life. 
 Against this evil, the Charter provided a most competent 
 remedy in the Board of Overseers. This board, containing, 
 besides a number of clergymen, several of the leading civil 
 characters of the Commonwealth, was admirably contrived 
 to rectify such errors as might arise from the exclusively Ac- 
 ademic cast of the Corporation. And this it was their pro- 
 vince to do. But in the course of time, a new and anomalous 
 body has formed itself between the Overseers and the resident 
 Fellows and nearly destroyed the sphere of action of the 
 former. This, we think, is strongly to be regretted. The 
 Overseers were a body peculiarly fitted to ally the College 
 to the state. A majority of them consisting of persons an- 
 nually designated by the people, there never could be any 
 thing like a hostile feeling, on the part of the State toward 
 the College. At the same time, as the clerical part of the 
 Overseers was permanent, an ample traditionary acquaint- 
 ance with the details of College affairs would be kept up. 
 
 III. Finally the restoration of the College to its chartered 
 form of administration would strengthen the hands of the 
 immediate government, on whose energy and activity so 
 much depends. Their trust is highly important and confi- 
 dential, and nothing ought to be spared to make it honorable. 
 Independent they ought not to be, they could not be, under 
 the superintendence of the Overseers, to whom all their do- 
 ings must be submitted. But greater responsibility than they 
 can have, as mere " Servants of the Corporation," would 
 essentially invigorate the system. Great complaints against 
 the College exist ; some well founded, some exaggerated, 
 some groundless. The resident Instructers are willing to 
 bear their portion of the blame. They will admit that the 
 powers, which they now possess, are capable of a more vig- 
 orous execution. But they beg the Corporation not to turn 
 to their disadvantage this their candid admission. In a soci- 
 ety like ours (where so much is matter of sentiment and 
 opinion on the part of Students and Instructers) powers 
 
30 
 
 greater than those ordinarily exercised are necessary to the 
 prompt and vigorous execution of those, which are ordinarily 
 exercised. The commander of an army needs the power to 
 decimate his troops ; not that he may exercise that power ; 
 but that he may be promptly obeyed in his ordinary com- 
 mands. Many parts of our calling are unpleasant and weari- 
 some. If at the same time it is intended that it should be a 
 respectable calling, it is necessary that it should be clothed 
 with all the influence, which rightfully belongs to it. The 
 Proctors of the College are clothed with the same disci- 
 plinary powers for the maintenance of order within the walls 
 of the College as the Tutors and Professors, and yet the 
 former have often been unable to enforce the laws. In like 
 manner the immediate government are unable to execute 
 many of the laws with due vigor, because the real power, the 
 influence, and the just responsibility, are in other hands. If 
 great evils spring from this source, it need not be said that 
 still greater must arise, on any supposed occasion for great 
 improvements and reforms, from a state of things, which 
 takes the power of originating such reforms entirely out of 
 the hands of those, who behold most nearly the defects, and 
 ought naturally to be most prompt with the remedies. 
 
 It is, however, with diffidence that, in this superficial way, 
 we have dwelt on this view of the subject. We are aware 
 that the question of right is that, which will be most gravely 
 entertained, and as matter of chartered right, therefore, we 
 respectfully prefer to the Corporation the claim of the resi- 
 dent Instructers to be elected to vacancies in the board of the 
 President and Fellows of the Oyerseers. 
 Signed, 
 
 Henry Ware, Professor of Divinity. 
 
 Levi Hedge, Professor of Logic and Metaphysics. 
 
 John S. Popkin, Professor of Greek. 
 
 Asahel Stearns, Professor of Law. 
 
 Sidney Willard, Professor of Hebrew, fyc. 
 
 John Farrar, Professor of Math, and Nat. Phil. 
 
 Andrews Norton, Prof, of Sacred Literature. 
 
 Edward Everett, Professor of Greek Literature. 
 
 George Otis, Tutor in Latin. 
 
 James Hayward, Tutor in Math, and Nat. Phil. 
 
 Nathaniel Wood, Do. 
 Cambridge, March, 1824. 
 
Note. — The foregoing memorial having been printed from 
 the first draft, a few verbal differences may be found to exist 
 between it and the copy presented to the Corporation. — 
 These differences, if any such exist, are accidental in their 
 origin, and of no importance in their effect on the general 
 train of reasoning and statement pursued in the memorial. 
 
LIBRARY OF CONGRESS 
 
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imSISSL^. CONGRESS 
 
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