/w LD212C? ,A)6 REPORT COMMITTEE OF THE OVERSEERS &?nvbavtr College, wmm wmw%n^^% OB THE RESIDENT IKSTRUCTERS. JANUARY 6, 1825, /{A «/ ? U J) °L \ % -h \G h~***- { t (h //vr g/>WW /^C/r , J/VC, 2- «-/ / "" The Committee, to whom was referred a Memorial of the Resident Instructers in the University beg leave to REPORT, That in this Memorial, the Instructers state that a document, which is annexed to it, and which was de- signed to prove that by the Charter of the Univer- sity, the Fellows are required to be Resident In- structers, was presented by them in April last to the Corporation, who declined acting on it, upon the ground that if the claim set up in it was valid, the Corporation was illegally constituted, and its acts were void. The force of this*objection is admitted by the Memorialists, who had, as it appears, antici- pated it, but hoped that the Corporation would ap- ply some remedy, which if not in a precisely legal form, might yet be effectual and satisfactory. Dis- appointed in this expectation, they now bring their claim before this Board and request it to restore the Institution to what they esteem the only form con- sistent with its Charter ; submitting at the same time the document referred to, and praying that they may have an opportunity of explaining and defend- ing it, when it comes to be weighed and acted upon. This document relates to the mode, in which ac- cording to the Charter of the Institution, tfie Corpo? ration of Harvard College ought, of right, be con- stituted. The Charter dated the thirty-first day of May, A. D. 1650, provides that Harvard College, in Cambridge, shall be a Corporation, consisting of seven persons, a President, five Fellows and a Trea- surer ; names the individuals who shall first consti- tute this body, describing them as, " all inhabitants in the Bay," points out the manner in which their successors shall be elected, and sets forth their cor- porate powers and privileges. It is contended by the Memorialists that the term Fellow, used in the Charter, imported a person resi- dent at the College, and actually engaged there in carrying on the duties of instruction and government, and receiving a stipend from its revenues ; and se- veral statements and arguments are advanced by them in support of this position. They allege that this is the meaning of the term in the English Uni- versities, and particularly in Cambridge, where many of the founders of our College were educated. They represent that the Fellows of the College were Resident Instructers at the commencement of the Institution, and that one or more of the Instructers have been members of the Corporation, excepting in the interval between 1793 and 1800, from the earliest period to the year 1806, and that they were a majority of the five Fellows about half the time during the century preceding that date. They pro- duce a resolution of both branches of the Legisla- ture in the year 1722, declaring, "that it was the intent of the college charter, that the Tutors of the said college, or such as have the instruction and go- vernment of the students, should be the Fellows and members of the Corporation of the said College, pro- vided they exceed not five in number ;" to which resolution however, the Governor refused to give any other than a qualified and conditional assent; an assent deemed sufficient to give it the force of law by the Memorialists, but not by your Commit- tee, nor by the Legislature at the time. The House of Representatives unanimously passed the same re- solution again the next year, refusing to hear the Corporation, but the Council having granted them a hearing, rejected it. After some remarks on the expediency of the change proposed by them in the actu 1 organization of the College, the Memorialists conclude by " preferring, as a matter of chartered right, the claim of the Resident Instructers to be elected to vacancies in the Board of the President and Fellows of the College. In compliance with the request contained in the Memor al, the Committee appointed a day for meet- ing at Cambridge, to hear whatever the Memorial- ists might offer in support or explanation of their claim, and gave notice of this appointment to them and to the Corporation. Before the day appointed, however, the Committee were informed that at a meeting of the Resident Instructers, it had been una- nimously voted, " that the Memorial itself contained all the statements and arguments on the subject of it, which they were desirous of bringing before the Committee, and that it was not their wish to be ad- mitted to any hearing before the Committee." In consequence of this communication the meeting was not holden at Cambridge as proposed. In the opinion of the Committee, it is an obvious objection to the claim, as stated in the Memorial that these Memorialists were appointed to the offices, on which alone their claim is founded, by the official act of that body, all whose acts the claim itself would render nugatory. It has however been suggested by one of the memorialists, that they did not mean to claim any exclusive right, or to pretend that they have any other than the common and undispu- ted right of all citizens, that of being eligible ; but only to maintain that though all inhabitants of Mas- sachusetts are equally eligible, yet those who have been elected, are bound to reside at the College. It is difficult to put this construction on the Memorial, which is throughout, in form and in substance, a claim of right. But whatever construction be put upon it, the following considerations, are respectfully sub- mitted as pertinent, and in the opinion of the Com- mitte, conclusive. The only express provision in the Charter, which is asserted by the Me moralists to impose the ob- ligation of residence at the College on the Members of the Corporation, is the application to them of the term Fellow. Now to ascribe this effect to the word, is to give it an operation, which it is not known ever to have when used in the same con- nexion, as it often is, in the charters of other Col- leges and Corporations. It is certain that the term has not, of itself, this effect in the charters or sta- tutes of the Colleges in either of the English Uni- versities. In both, there are Fellows, who are re- quired to travel, and many Fellows of Colleges never go thither at all. With regard to the usage in Harvard College, we find from the records that the Corporation con- sisted entirely of non-residents, with the exception of the President, from 1793 to 1800, and from 1806 to this time; and that ever since 1673, which is as far back as the names of its members can be regularly traced, it has always contained two or more non-residents, the other members being resi- dent Instructers ; and it does not appear that a different practice existed previously. It is manifest that this usage, while it is perfectly consistent with the unquestioned right of the resident Instructers to be eligible to this office, in common with other citi- zens of the State ; is totally repugnant to the asser- tion that they are exclusively eligible, or that non- residence is a forfeiture of the office ; for to support either of these positions, it is not enough to shew that the Instructers may form a part of the Cor- 8 poration, but it must be shewn that not one non-re- sident can be a member of it. The Committee are unable to ascertain who were the members at any time before the year 1673, excepting from the Charter of 1650 and that of 1672, in which they are named. The Memorial asserts that all the Fel- lows named in the Charter of 1650 were resident Instructers at that time, but no satisfactory evidence of this has been produced. Of those named in the Charter of 1672, three were settled Clergymen, and one of them, Samuel Danforth, who alone is described by the addition of " a Fellow of the Col- lege," was the only person then living, who had been named in the former Charter, and he then was and had been ever since 1650, the -Minister of the Church in Roxbury. There is not only no evidence that this Charter designedly and avowedly departed from the former in relation to the residence of the members of the Corporation, but strong evidence to the contrary, inasmuch as the appointment of the persons incorporated to be " the Fellows" which is supposed to require their residence at the College in the former Charter, is repeated in the latter. Neither have the Committee discovered that there was the least doubt or question of the legality or propriety of choosing non-residents to be members of the Corporation at the time of granting that charter, or at any other time previous to the year 1722. It must also be stated, that in 1780, when the Corporation was formally confirmed by the Con- stitution of the Commonwealth, only one of the five Fellows was resident at the College, and that numerous acts of the Legislature, both before and since that time, have recognized the existence of this Corporation. The Committee are of opinion that the claim of the Memorialists being repugnant to an usage thus uninterrupted and thus sanctioned, cannot be sus- tained, and that any citizen of this Commonwealth may lawfully be made and continue a member of the Corporation, whether resident at the College, or not. There is however one authority cited in the Me- morial too important to pass without further notice, though even if unexplained, it could not prevail against the considerations, which have been stated. The Committee allude to the opinion repeatedly ex- pressed by the House of Representatives in their votes passed in the years 1722 and 1723, an opinion adopted at first by the Council also, but subsequent- ly abandoned by them, after a full hearing of both the parties. This opinion may perhaps be account- ed for by the circumstance that at that time and previously the title of Fellows was given not only to the members of the Corporation, but to all the Tutors whether members of that body or not. Some distinguishing epithet was often added to de- 2 10 note in which of these senses the terra was used ; but this was frequently omitted when from the con- text, or from the nature of the case, no mistake was apprehended. The term Fellows appears to have been introduc- ed here about the year 1647, three years before the Charter, and then to have denoted a person chosen from among the graduates, who should give instruc- tion to the students committed to his care, and receive a stipend. After the Charter it was used in the same sense, and applied to such Instructers, as well as to the members of the Corporation, some- times with and sometimes without an additional epithet for the purpose of discrimination. From the records of the College it is found that in the year 1666 it was ordered, that such as were " Fellows of the College, and had salaries paid them out of the Treasury, should constantly reside, lodge, and have their studies in the College." In the next year a Probationer Fellow was chosen, and the junior class committed to his care. In 1669 grants differ- ing in amount were made to the Senior, Second and Third Fellows, In 1677 the Overseers recommend- ed to the Corporation to choose another Fellow to officiate in the room and stead of the Reverend Mr. Shepherd, of Charlestown, deceased, and one to officiate in the place, if they judged it needful. Soon afterwards the Corporation chose the Reve- rend Mr. Sherman, Pastor of the Church in Water- II town, a Fellow of the College, and member of the Corporation, and Mr. Isaac Foster, a Probationer, to take charge of the Sophomores. Between 1682 and 1692, the same individuals are designated at dif- ferent times in the records, as "the resident Fellows " " the Fellows on the place" " the Fellows of the Col- lege" " the present Felloics" " the Fellows" and " the Tutors" and salaries assigned to them under each of these various appellations. But during almost the whole of this period, it appears that there were not more than two such Fellows receiving salaries in the College at the same time. In June 1690 and after- wards, we find the phrase Fellows of the Corporation. The College records for the first forty years are exceedingly imperfect. They shew however, and this circumstance increases the confusion arising from these different applications of the same term, that the Fellows receiving a salary, resident Fel- lows, or Fellows on the place, as the same indivi- duals are indifferently styled, were, at least some of them, at the same time members of the Corpora- tion ; but it does not appear in the records that all of them were so. A letter written from Boston, October 12, 1676, to the Lords of the Privy Council, by Edward Randolph, who was sent out by King Charles the Second, to examine into the state of the Colonies, seems to shew that all the resident Fellows were not then members of the Corporation. In answer- ' 12 ing the enquiry which he was instructed to make in regard to the actual condition of the University, he says, " There are but four Fellowships, the two Seniors have each 30/. per annum, and the two juniors 15/. These are Tutors to all such as are admitted students." Now at that period and for some time previous, three of the five Fellows of the Corporation were settled clergymen, Mr. Oakes of Cambridge, Mr. Shepherd of Charlestown, and Mr. Mather of Boston, so that only two of the Fellows mentioned by Randolph could possibly have belong- ed to the Corporation. Between the years 1692 and 1700 four different acts for altering the organization of the College were passed in both branches of the Legislature, and though they were not finally established, one of them not being approved by the Governor, and the others being successively disallowed by the King, yet they and the votes passed in relation to them, may serve to shew how the term Fellow was then used and understood. The number of persons in- corporated by these acts besides the President, Vice President and Treasurer, varied from eight to fifteen ; not more than two in any case being resi- dent at the College. In each act these persons were incorporated as in the Charter of 1650, by the appellation of Fellows ; and in each, as in that, there was a provision that the corporate property should be managed " for the use and behoof," or 13 " for the encouragement of the President, Fellows, Scholars and Officers of the College, and for all accommodations of buildings, books," &c. Three of these acts contain the expressions, Fellotvs of the House, Fellows receiving a salary, Felloics residing at the College. In the two last, the persons incorpo- rated are repeatedly styled Fellows of the Corpora- tion, and it is provided that "no meeting for choos- ing any Member or Members of the Corporation, Fellows of the House, or making bye laws," &c. be holden without written notice. It appears from the records of the General Court, that the persons to be incorporated in the year 1700 were chosen by concurrent vote of the Council and House, and that they both agreed in appointing, "for Fellows'" thir- teen persons named " with the two senior resident Fellows for the time being." In the early part of the last century the records of the Corporation and Overseers continually apply the term Fellows to the members of the Corpora- tion and also to the Tutors, whether members of it or not. When it was wished to denote in which sense the word was used, the former were usually styled Fellows of the Corporation ; the latter for the first ten or twelve years resident Fellows, and subse- quently for a like period Fellows of the House. Af- ter that time they are in these records generally called Tutors. But in the records of the Immediate Government and in the Treasurers accounts, the 14 term Fellows was applied to the Tutors, many of whom neither were nor pretended to be members of the Corporation, a few ye'ars longer ; and it appears to have been used by the Tutors themselves, till within about sixty years. The ambiguity arising from this use of the same word in different senses, may probably be deemed the origin of the votes passed by the Legislature in in 1722 and 1723; and of the claim then urged and now repeated. It should be remarked however that though the Tutors, not members of the Corpo- ration, were thus called Fellows, this term was never applied in the same way to the Professors, and that therefore the general reasoning in the Memorial seems to have no application whatever to them, but their claim to any peculiar right must rest entirely on those votes, unsupported by any other argument or authoritv. The Memorial represents also, that it is expedi- ent for the interest of the University that all the Fellows of the Corporation should be resident Instruc- ted. As the Corporation and Overseers, if they entertain the same opinion, may bring about this change by electing none but resident Instructers to be members of the Corporation hereafter, it may be expected that this point also should be taken into consideration. The Committee have considered it, and waiving the question, whether it would not be of dangerous tendency to grant this privilege as a 15 favour, while it is claimed as a right ; wouid simply remark, that all the Instructers are appointed, and are removeable, and that their duties are prescribed, their compensation fixed and their conduct regulated, only by the vote of the Corporation, in concur- rence with that of this Board, and that consequent- ly if they composed the whole Corporation, no act touching them could be passed without their own consent, and thus though they would not have un- limited power, they would in effect be exempted from all responsibility and control. The Committee therefore conclude that it is not expedient to adopt any plan for changing the actual organization of the College in the manner request- ed by the Memorialists. All which is respectfully submitted, By order of the Committee. Aa. hill. 3*1 tutorial TO THE REVEREND AND HONOURABLE THE mttmtv* of Plsvfww Uuitevnitn, AT CAMBRIDGE, THE RESPECTFUL MEMORIAL OF HENRY WARE, LEVI HEDGE, JOHN S. POPKIN, SIDNEY WILLARD, JOHN FARRAR, ANDREWS NORTON, EDWARD EVERETT, J GEORGE OTIS JAMES HAYWARD ^•PROFESSORS, ARD, S TUTORS, CAMBRIDGE, MAY 31, 1824. To the Reverend and Honourable the Overseers of the University, at Cambridge, J. he Subscribers beg leave respectfully to represent that, on the 2d of April last, they presented to the Corporation a docu- ment, of which a printed copy is here subjoined, and which they request to have considered as a part of this their Memorial to your reverend and honourable body. The object of said docu- ment is to show, that, by the Charter of the University, the Fel- lows of the University are required to be Resident Instructers. For the arguments and considerations, by which this statement is supported, the subscribers beg leave to refer to the document itself. — To this application no formal answer has been received from the Corporation ; but it has been intimated to the subscri- bers, by the President, that the Corporation feel themselves in this dilemma, viz : — that if they elect to the existing vacancy in their board, one of the resident instructers, they admit the claim of the latter, as set forth in the Memorial to be well founded ; but if this claim be well founded, the members of the Corpora- tion, not being rightfully fellows of the College, are not compe- tent to perform any act in its government, and can only resign their seats. In this opinion of the Corporation, communicated by the President, that body appears to decline a jurisdiction of the case, except in the assumption that our claim is groundless. If it be well founded, they consider themselves as possessing no power to carry it into effect. This consideration has made it necessa- ry for us to apply to your reverend and honourable body, as a 20 Board of College Government possessing powers not called in question by our claim, and therefore alike able to act upon it, whether it be allowed or not. We have taken the present oppor- tunity of respectfully presenting it to your consideration, not only because we understand your reverend and honourable body to be now engaged in considering important measures, relative to the organization of the College ; but because we are fearful lest, by private and inofficial channels, our application may come before you under circumstances to prevent its being im- partially weighed, and thus the minds of your reverend and honourable board be preoccupied on the subject. In the document alluded to and here subjoined, the subscri- bers think they have firmly established the proposition, which was enacted in the form of a legislative resolution, by every branch of the General Court, in 1723, " that it was the intent of the Charter, that the Tutors of the College, or such as have the instruction and government of the Students, should be fel- lows and members of the Corporation ; provided they exceed not five in number." At the same time, we beg leave to state, that, as a mere matter oj right, we never should have brought forward the claim, had we not at the same time believed that the exercise of this right is essential to the welfare of the Uni- versity, and that the gradual introduction of a third body be- tween the Overseers and the immediate government, necessari- ly possessing a limited acquaintance with the College affairs, and yet charged with its administration, is highly prejudicial to its interests. The subscribers feel flattered in observing, what they think a confirmation of this sentiment, in section No. 9, of the report of Mr. Justice Story, now, as we understand be- fore your reverend and honourable body. It is there most justly stated, that " there is an absolute necessity of making the Board of Overseers an active and efficient agent in the concerns of the University." Towards the close of the subjoined document, the subscribers have ventured to express the same opinion, with 21 the remark, that this could in no way so effectually be brought about, as by restoring the University to its original constitution, and removing from between the Overseers and the immediate Government a third Non-Resident Board, which has nearly un- dermined the two others ; and while it has taken from the im- mediate Government its responsible powers and its most valua- ble privileges, has almost rendered nugatory the functions of the Overseers ; — originally the sole and long the principal board of College authority. The subscribers beg leave for a moment to ask your atten- tion to the above mentioned dilemma, in which the Corporation esteem themselves to be placed, with respect to our application, which precludes their taking any order not predicated on the groundlessness of our claim. We need not say that it had by no means escaped us — (on the contrary it was intimated in the first sketch of our memorial) — that, if our claim were well grounded, the Corporation could in strictness afford no farther relief to the evil, than that of vacating their seats. At the same time, however we reflected that a full remedy must exist some- where. The Charter provides no remedy in the certainly pos- sible case of the election of persons to the Corporation, who should afterwards appear not competent to be elected. While we supposed, on the one hand, that this was not a misuser so fatal as to destroy the Charter, we imagined, on the other hand, that the Corporation, actually in possession of the trust at the time the misuser should be first effectually discovered, might be an extremely proper body to administer the remedy; not by any specific right, but by the vis Conservatrix of a great Institu- tion, which must not be permitted to perish, because an unfore- seen irregularity has crept into its administration. Having already observed that we should not have brought forward this claim as a matter of right, had we not also at the same time considered it a matter of high expedience, we may add that on this ground, we had hoped that the Corporation 22 would have been able to meet us ; in which case, without com- mitting themselves as to the legal claim, they would have been able, on the ground of expediency alone, to restore the College to what we conceive its chartered form. Though no one of the officers of instruction has for eighteen years been thought worthy of a place in the Corporation, yet being of course eligi- ble, the Corporation might by choosing one of their number to fill the vacancy, which has now existed more than twelve months, have settled the present controversy, without commit- ting themselves as to their supposed rights. The College re- cords furnish precedents of such a procedure on the part of the Corporation, of which two are quoted in the subjoined docu- ment. Under these circumstances, we trusted that the Corporation would see the force of what convinced us, and acknowledging either the validity of our claim or the expediency of introducing into their board persons possessed of that acquaintance with College affairs, which can hardly be looked for except among the Instructers, would proceed to fill the vacancy, according to our understanding of the charter, and the solemn exposition of it, by the constituted authorities of the province in 1723; and thus, as successive vacancies might occur, repair the evil in a quiet and gradual way, and save the unpleasant consequences of public discussion. Such a course we should have esteemed the safest and most conducive to the welfare of the University. Since, however, the Corporation have communicated to us their view of the legal dilemma, in which they stand, we have thought it our duty and privilege to bring the subject before your re- verend and honourable board, and to request your aid, as the highest branch of its government, in restoring this Institution to what we esteem the only form consistent with its venerable Charter. With this view, we have ventured to lay before you a copy of our address to the Corporation, begging your reverend and 23 honourable body to accept it as a part of our memorial to you at this time, and to furnish us with an opportunity of explaining and defending it, when it shall come to be weighed and acted upon. All which is respectfully submitted, in behalf and by order of the subscribers to the subjoined document,* by HENRY WARE, LEVI HEDGE, EDWARD EVERETT. * Note. We beg leave to state" that Mr. Professor Stearns has observed to us, that, not being concerned in the immediate government and instruction of the College, he esteems himself not strongly interested in this subject, and de- clines joining us in this address ; and that Mr. Tutor Wood, in consequence of absence from Cambridge, could not be consulted. OO" The document subjoined to this memorial and referred to as part of it, has already been printed and placed in the hands of the Members of the Board of Overseers. LIBRARY OF CONGRESS 029 892 549 7