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REP () RT
DIMINISHING THE COST OF INSTRUCTION
HARVARD COLLEGE,
MINORITY REPORT
ON THE SAME SUBJECT.

2- …~~~~~~~~ ---~~~~~~~~~~~~ -> <^_^_^_^_^_^-->~~~~~~~ S-T-Tº-T-T^-
REP () RT
ON
DIMINISHING THE COST OF INSTRUCTION
IN
HARWARD COLLEGE,
TO GETHER WITH A
MIN () R IT Y. R. E POR. T
ON THE SAME SUBJECT.
R. E. P () R. T.
THE committee, to whom were referred sundry resolu-
tions for diffusing learning more effectually by diminishing
the cost of instruction in Harvard College, beg leave to
report:
Access to the College should be as free as possible. At
present, a person admitted to advanced standing is obliged
to pay into the treasury at the rate of $45 per annum,
according to the standing to which he is admitted. Such
a charge taxes the sons of our citizens for the privilege of
resorting to an institution which belongs to the public.
The committee decline censuring the custom as it has
existed in times past, and believe that Harvard College
has not been altogether alone in it; but they are unani-
mously of opinion, that for the future the practice should
be abolished; and that any person should be admitted to
the standing for which he is qualified, without any pecu-
niary consideration.
The committee gave great attention to the subject of
the practicability of reducing the expenses of tuition, and
have arrived at the conclusion that such reduction is prac-
ticable, expedient, and required by a just regard for the
public good.
The fact that other expenses, such as for board and
fuel, are greater at Cambridge than at other colleges, is
4.
an additional reason for making the expense of tuition
less. - -
A difficulty seemed to arise from the specific appropria-
tion of many endowments to particular professorships and
branches of instruction; but, on examination, the restric-
tions are found not unfavorable to the frugal application
of this branch of the college revenue. The incomes from
these endowments, almost without exception, perhaps it
might be said, without any exception, are appropriated to
objects which must otherwise have been a charge on the
general funds.
A more weighty, though not an insurmountable objec-
tion to immediate reduction presented itself in the fact,
that the general funds of the college have recently been
very seriously impaired by excessive expenses for con-
struction. The magnificent bequest of Gore, the most
considerable pecuniary benefactor of the college, has been
almost exhausted on a building for a library, of which the
cost has, by the treasurer’s statements, exceeded seventy-
three thousand dollars. One half that sum would have
served to raise an edifice, as well or better adapted to the
purposes of a library; and such an edifice should have
been constructed out of the savings from the annual in-
come of the fund. The loss is a loss to all future gener-
ations. The committee believe every effort at reduction
will be delayed, unless the funds of the college shall be
preserved unimpaired. In this view, they recommend,
that the consent of the Overseers should be formally so-
licited, before any plans of building shall be resolved
upon, in order that the design may obtain publicity and
be subjected to scrutiny and discussion.
Yet your committee are of opinion, that the funds still
preserved will justify and demand a great reduction of the
5
expenses of the College; they report with satisfaction,
that the excess, the last year, of income over expenditure,
was $7,115 53; and they proceed to point out the man-
ner in which reduction may be effected without violent
changes, and without the infringement of any existing
right. They disclaim every thought of awarding censure
or praise; they disclaim every disposition to narrow un-
duly the incomes of the instructers, or to question their
conscientious fidelity. It is assumed that the professors
perform all that is demanded of them, and that an enlarge-
ment of their sphere of usefulness would be well received
by them. The main reliance must ever be on the consci-
entious uprightness and self-directing energy of the pro-
ſessors themselves.
The committee have sought to enlighten their judg-
ments by considering what the New England mind has
accomplished, in organizing other institutions of a similar
character.
The under-graduates in Yale College, are three hundred
and ninety-four in number, and their term bills amount to
$18,732 59, or, perhaps, to $20,323 18. The under-grad-
uates at Cambridge, are but two hundred and fifty-four,
and though more of them in proportion have rooms out of
College, their term bills amount to $21,696 35.
At Yale, the government and instruction of three hun-
dred and ninety-four students cost $15,201 01 ; at Cam-
bridge, the same services for two hundred and fifty-four
students, cost more than $26,500.
The Common Fund at Yale, is $30,090 04; the Com-
mon Fund at Cambridge, including the Tutor’s fund, is
$197,356 06; and between the respective specific funds
there is a similar disproportion.
6
Yet the tuition fees at Yale, are $33 annually; at Cam-
bridge, are $75 annually.
Your committee have endeavored to arrive at some of
the causes of these differences; where the greatest results
are produced by the least considerable means.
The capital defect in the system at Harvard is this: The
President of the College teaches nothing. His mind is
not brought into contact with the minds of the students.
He is an overseer, rather than a College officer. The
emoluments of his place are a salary of $2,235 00, with
a house and grounds, of which the rent may be valued at
$500 00, or more, per annum, besides an allowance for
expenses of $538 53; in all, $3,273 53. To relieve the
President from the duty of conducting morning and eve-
ning prayers at the University, a further sum is paid for
that purpose to two theological professors. Then, for the
finances of the College, there is, very properly, a treasurer;
for out-door affairs, contracts, and details of business, there
is a steward ; for the ordinary routine of the discipline of
the College, there is a parietal board.
Such a state of things exists in no other New England
College, with which your committee are acquainted. At
Yale, the venerable President, who has three hundred and
ninety-four students under his government, while at Cam-
bridge there are one hundred and forty less, is an efficient
instructer. He teaches Logic, Intellectual and Moral Phi-
losophy, and Political Economy.
The distinguished Professor at Amherst College, re-
cently elected its President, does not think of declining
his usefulness as a teacher, but reserves to himself a still
wider field of instruction than the President of Yale.
The learned and most estimable President of Williams’
College, with a salary of $1,200 and a house, has “almost
7
the sole charge of the Senior Class,” giving instruction in
Rhetoric, Moral and Intellectual Philosophy, Natural The-
ology, the Analogy between Natural and Revealed Reli-
gion, and other topics.
In the German Universities, as the committee are in-
formed by one of their number, the idea of a presiding
officer, not connected with instruction, is universally ex-
ploded.
Your committee recommend, therefore, as the first re-
trenchment, that, so soon as a vacancy in the Presidency
of Harvard College, shall occur, the corporation be ad-
vised to select for that station one now a professor, or
one who will do the duties of a professor. This will
relieve the general funds of at least $2000 per annum.
As your committee proceeded to inquire into the emol-
uments and duties of the professors, they were very much
surprised at discovering the great differences which pre-
vail in the amount of their respective labors.
Instruction of under-graduates at college partakes of
the nature of instruction at universities and instruction at
high schools. Teachers of a gymnasium or a high school,
the head master of the Boston Latin school, for example,
would not think the appropriation of five or six hours a day
to instruction, an unreasonable requisition. At European
universities, professors have taught classes three hours
daily, till into late age. At Cambridge, full one fourth
part of the year is a succession of holidays ; long periods
of leisure, such as the merchant, the lawyer, the physician,
the farmer, the mechanic, the divine, cannot hope to en-
joy. Your committee, therefore, think it not unreasona-
ble, that during their thirty-nine weeks of activity, the
teachers at Harvard should devote three hours a day to
instruction during the period of active service.
8
This view is confirmed by the course pursued by the
Alford professor. He is paid $1320 from his foundation,
and $680 from the general fund ; and his labors in in-
struction employ him at least three hours daily. To ask
more of him would be unreasonable ; and the same re-
marks seem applicable to the Boylston professor.
The Perkins professor, with a salary of $1200 from the
specific fund, and $800 from the general fund, teaches,
on the average, without deducting holidays and omissions,
eleven hours and a half per week. The McLean profes-
sor, with a salary of $1000, appears, from the public doc-
uments, to employ, during the chief portion of one of the
terms, about four hours a week, as a teacher; and in the
other half has no duties ; in other words, he teaches on
the average of the year, less than two hours a week, for
thirty-nine weeks. But your committee have no remarks
to make on the condition of these professorships, as the
question, which would arise, would relate to an increased
efficiency in the department of Mathematics and of His-
tory, and not to retrenchment.
In the branches of the ancient languages, the professors
of Greek and Latin teach but two hours a day. Their
salaries are $1800. They instruct only voluntary pupils,
out of the higher classes, and are at present wholly re-
lieved from the necessity of conducting the required stu-
dies of the freshmen. All this makes their duties pecu-
liarly agreeable. For the instruction of the freshmen in
Latin and Greek, two tutors are appointed, who each
instruct fifteen and a half hours a week. Your committee
think it would not be unreasonable to divide the duties of
one of the tutors between the two professors ; and a sav-
ing would be made of the salary of one tutor, that is, of
$645 annually.
9
In the department of modern languages, there are five
instructers, one of whom, the Smith professor, receives a
salary of fifteen hundred dollars. From the published doc-
uments of the college, it does not appear that this teacher
did more, during the last term, than read lectures two
hours a week. And in the next term, it would seem,
that he proposes to give no instruction whatever. For
the year his instruction would seem to average scarcely
one hour a week, for thirty-nine weeks, or about one
eighteenth part of what is accomplished by the Alford
professor. The teachers of French and German, with a
salary of five hundred dollars each, give instruction nine
hours in the week; the teachers of Spanish and Italian,
at the same salary, six hours in the week. The commit-
tee would respect all existing rights; but suggest, that
when the office of Smith professor becomes vacant, the
teachers of the French and Spanish languages should be
paid from the specific fund, agreeably to the will of its
founder; and that the professorship under its present
form, should be abolished altogether. This would effect
a saving to the general fund of $1400. Perhaps, also,
the Italian class might be given up, which would effect a
further saving of $500.
The duties of the Erving professor, as far as he is con-
nected with the under-graduates, are so inconsiderable as
to justify a retrenchment in that quarter. He receives
$200 from a specific fund, and $1000 from the general
fund. Yet for one half of the year, he has no duty with
the under-graduates, and for the other half, averages
scarcely two hours and a half in the week. We cannot
but think, that, in the event of a vacancy, this department
should be reformed. A saving would be justified here of
$700 annually.
2
10
Here your committee pause. They propose to re-
trench—
In the President’s department, . º . §2000
In the department of Ancient languages, . 645
In the department of Modern languages, . 1900
In the department of Chemistry, º tº 700
Total proposed retrenchment, . . $5245
As the present excess of income over expenditure is
$7115 53, it is obvious that the fees for tuition may be
reduced.
To this the Committee add, that the diminution of ex-
pense will increase the number of pupils, and consequently
the revenues of the college; and all salaries hereafter
should be predicated in part on the contingency of such
increase. Such a proposition was forcibly advocated
some years ago by Mr. Andrews Norton, whose experi-
ence and opportunities of observation gave great value to
his opinions; but when an attempt was made to give effi-
cacy to this recommendation, the condition which Mr.
Norton suggested as indispensable to its success, was
wholly disregarded ; the failure which he intimated as
likely to follow such neglect, speedily ensued, and the
whole movement ended only in an increase of the fixed
salaries of the professors.
Your committee would further indicate, that some
funds, now applied to the theological School, might be
reclaimed, for the benefit of the under-graduates.
Should the measures here proposed be adopted, Har-
vard College would be brought nearer the affections of the
American people. To this end your committee propose
the following resolutions:
I 1
Resolved, That the Overseers of Harvard College do
not consent, that a person fitted for an advanced standing,
shall be charged at the rate of $45 per annum, according
to the standing to which he is admitted.
Resolved, That the Overseers of Harvard College do
not consent, that the general funds of the college should
be impaired, or an expensive building be undertaken,
without it be most expressly “allowed ” by the Over-
See I’S.
Resolved, That the tuition fees of Harvard College
should be reduced from $75 per annum to $33 per an-
Illiſſl.
Resolved, That a joint committee of three from the
Overseers, and two from the Corporation, be appointed to
mature a plan for reduction, at the earliest practicable
period.
GEORGE BANCROFT,
LINUS CHILD.
Boston, February 27, 1845.
MINORITY REPORT.
MIN () RITY REP () R.T.
BoARD OF Overs EERs,
February 25, 1845.
The undersigned, a minority of the Committee to whom
was referred, at the last meeting, the subject of the reduc-
tion of collegiate expenses at Harvard University, having
duly considered the same, and feeling bound to dissent
from the propositions adopted by the majority, as the basis
of a report, asks leave to submit the following remarks as
a Report of the Minority:
The undersigned considers it an established, if not an
admitted, fact, that a more extensive education is given at
Harvard University, than at any other American College.
Some branches of education, the modern languages, for in-
stance, are cultivated to a much greater extent at this
University, than at any of the like seminaries in New
England.
In those important branches which are taught here in
common with Colleges of high distinction in other States,
the undersigned believes that the graduates of Harvard
College are, on the whole, as distinguished for their profi-
ciency as those of any other ; and he cannot but think,
after much observation and frequent inquiry for a long pe-
16
riod, that the character of the Institution, generally, as to
intelligence, industry, and good morals, deserves to stand
as high in the judgment of the community.
But it is said that, however great or undoubted may be
the advantages of an education at Harvard, the expenses
are too high, and the College charges should be reduced.
This is an objection which is entertained by many respec-
table individuals, and to which the undersigned is disposed
to give the most candid and respectful consideration.
The benefits conferred by Harvard University on the
community, will not be lightly estimated by any one who
considers the character, generally speaking, of its Alumni.
And while those benefits, as they now exist, should
not be undervalued, it is equally our duty to make
every reasonable effort to extend them. It is there-
fore highly desirable that the College charges at Cam-
bridge should be diminished, provided it can be done
without a diminution of the important and useful knowl-
edge now communicated to the students. This consid-
eration is certainly of moment. It has been the course of
our literary institutions generally, if not universally, to in-
crease, from time to time, the amount of knowledge taught
within their precincts, and the sanction given by this
Board to what is called the Elective system, is a strong
encouragement to believe that a retrograde movement
would find little favor at their hands. It would certainly
be a simple and effective process to diminish, materially,
the expenses of tuition, by lopping off some of the most
important departments of instruction, but to many a stu-
dent, the lopping off of his right arm would scarcely be in-
flicting a worse injury. Harvard University has now, ac-
cording to the last catalogue, about two hundred and fifty
under-graduates, a larger number, the undersigned be-
17
lieves, than any similar institution in the country, except
Yale College.
The larger part of its students never have been, nor
can they well be, the sons of opulent men, and to render
their education less thorough and complete, seems, to the
undersigned, a war against the best interests of the pub-
lic. -
We now come directly to the important and interesting
question, whether the College charges at Cambridge, can
be diminished, without injury to the cause of education, or
injustice to the teachers. -
According to a statement furnished to the undersigned
by the steward, and hereto annexed, with the additions of
Some small items, the whole amount of necessary charges
annually, exclusive of apparel, travel, &c., is, on an ave-
rage, about $210. This includes board in commons, on
an average of $2 per week. 3.
It ought to be stated, however, in this connection, that
from thirty to forty students annually receive from $30 to
$50 each, from the funds of the College, in the shape of
exhibition money, and can have the advantage annually
of a loan without interest to the amount of $30 or $40
more, being $60 to $90 to each.
According to the printed catalogue of Yale College of
1842–3, the average amount of the like charges there, is
$165 annually, board included. This deducted from
$210 for the expenses at Cambridge, as above, leaves a
difference against Cambridge, in necessary charges, of
$45 annually on an average. Funds for indigent and
meritorious students also exist at Yale, though the precise
amount is not known. Of the above amount at Cam-
bridge, $75 is stated to be for Instruction, Library and
Lecture Rooms.
o
*_2
| 8
By the catalogue of Yale, mentioned above, it appears,
that the annual charges there, for instruction and recita-
tion rooms, are $36 annually. The first question raised
in committee was, Can the above charge of $75 at Har-
vard, for tuition, be lessened with propriety P This ques-
tion chiefly engaged their attention during two meetings,
the last of which was held on the 12th of this month.
After much discussion on this and other topics, the chair-
man stated that he was under the necessity of departing
from the city, and thought it desirable that the committee
should agree on certain leading propositions as the basis
of a report, to be drawn up by him while absent, and
transmitted here. It had previously been contemplated
to procure information from some department of the Col-
lege government, but the design was relinquished by the
committee, on the ground that, if reasonable time were
given for procuring such information thoroughly and in a
precise shape, no report founded thereon could be drawn
up in season. The majority of the committee seemed
therefore to prefer going on with the information then
before them, and adopted certain general propositions.
These will presently be noticed more particularly.
They seem most of them predicated on the supposition
that the expenses of tuition at Cambridge could and
ought to be reduced, in one or both the following ways,
viz: by diminishing the number of officers and increasing
the duties of those who are left, or by diminution of sala-
ries when not matter of contract. To the course pro-
posed the undersigned could not consent without further
knowledge. He had reason to doubt the correctness of
many of the premises laid down by the chairman, as well
as the soundness of many of his conclusions; and his
doubts have been since confirmed by the examination of
19
documents, which he thinks that able and learned gentle-
man must have read inadvertently. Besides, he thought
that the knowledge possessed by the committee, if cor-
rect, was quite insufficient. Admitting that the impossi-
bility of receiving information from the College govern-
ment, in due season, was a reason for not applying there-
for, the undersigned can see no warrant for recommending
important and definite action, without such information,
on subjects of such extent and delicacy.
The general question of reducing expense, by reducing
the number of the Faculty and Instructors in Harvard
University, or the compensation of any of them, or in-
creasing their duties, is one which the undersigned is
compelled to think cannot fairly be decided without inqui-
ries addressed to the corporation or the President, and,
through them, to the officers concerned.
We must first know accurately the actual duties per-
formed, as well as pay received by these officers. They
are, in effect, put upon trial, and the undersigned thinks
that they should be allowed, certainly not the powers of
judges, but the privileges of defendants. The document
which the majority of the committee seemed to consider
as a warrant for their course, was the tabular statement of
hours spent by the instructors, respectively, with the stu-
dents in the recitation and lecture rooms. But surely the
time thus spent is not the sole index of the teacher’s la-
bors. The different nature of the branches taught may
render this work far more toilsome in one branch than in
another ; and the same remark may be made of the mode
of teaching. It is one thing, for instance, to hear the
declamations of a class, and another to examine critically
their exercises, or hear them recite in a difficult branch.
Besides, the preparation for the exercise on the part of
20
the instructor may occupy far more time than the exercise
itself. Thus it would appear, from the College report of
1842, that the Professor of Chemistry is obliged to spend
from five to eight hours in preparing for a lecture proba-
bly occupying not more than one. The following is a
short extract from a clear and pertinent letter of that offi-
cer to the undersigned. After stating, in detail, the du-
ties of his office, he adds: “Thus, although I am not ab-
solutely occupied in delivering lectures, or with a class,
many hours in the day, you perceive nearly all my time is
devoted to, and occupied by, the duties of my office.”
The undersigned, therefore, objects to the conclusions
of the majority, generally, as assuming, without sufficient
evidence, that the expenses of education at Harvard can
be properly diminished, by diminishing the number of in-
structors, or by diminishing the pay, or increasing the du-
ties of some of them. f
He does not say that this proposition is in itself incor-
rect. He will not venture to assert either this or the con-
trary, in the present state of his knowledge, and to acquire
the proper information would demand an investigation,
which, if he had the power of making it at all, he cer-
tainly has not had the time for doing. But he thinks the
majority have, all along, assumed the point which is to be
proved, and proved, too, in his humble judgment, if at all,
from facts not yet in the possession of the committee.
In closing these general remarks on the expenses of ed-
ucation at our University, the undersigned cannot help
adverting to an important distinction to be regarded by
every one who would answer fairly the question, whether
education at Cambridge is more costly than at any other
College in the country. If the question, in fact, mean
whether a greater outlay of money is required, it admits
21
of no other than an affirmative answer, though the differ-
ence between our University and the highly respectable
one at New Haven, is probably less in this respect than
is often supposed.
But if the question be whether education be dearer at
Harvard University than at other New England Colleges,
due regard being had to the equivalent received, by the stu-
dent in the intellectual advantages offered to him, the under-
signed is firmly convinced that the very opposite answer
must be given. Still, to reduce the cost without reducing
the value of those advantages, is certainly, if practicable, de-
sired by none more than by the undersigned, and he would
be far from opposing any investigation into this subject in
a proper mode, or any reduction of expenses, in which
due regard should be had to the interests of the Univer-
sity, and the fair, and not more than fair, compensation of
its officers.
It may be proper here to notice some information on
this head, received from members of the corporation since
the above remarks were written. The undersigned had
supposed that the salaries of most of the professors were
founded in part on grants revocable in terms. He now
learns, that the salaries of the professors of Rhetoric,
Greek, Latin and Mathematics, (he believes of others
also), have been fixed in each case as they now stand,
either by agreements with the incumbents at the time of
settlement, or by votes since passed by the corporation,
without condition or limitation. Whether such votes can
be legally rescinded, is at least questionable ; but it would
seem, at any rate, that the reasons which would justify
any proposal to rescind them, ought to be of an exceed-
ingly strong character.
In relation to the other general expenses of the univer-
22
sity, the undersigned has had no means of forming a judg-
ment, which are not in possession of this board. He pre-
Sumes, however, that those expenses are not extravagant,
from the fact, that there is a surplus of income over ex-
penses, for the past year, as stated in the treasurer’s re-
port, of more than seven thousand dollars, presumptive
evidence, certainly, of judicious economy.
It is now proposed to notice more particularly the points
stated as the basis of a report, by the majority, as minuted
down by the undersigned.
These were:
First. That it be recommended to abolish the charge
for entrance to an advanced standing. On this the under-
signed remarks,
1st. That it is not applied to pupils regularly dismissed
from other colleges. 2d. That is a charge of long stand-
ing, and that a similar charge exists at Yale, as stated in
their catalogue of 1842–3, at Williams College, and it is
believed at other collegiate institutions. 8d. That it is
often remitted ; and lastly, that it is a charge against
those who receive the advantages of the College without
residing the whole College term ; and as it goes into the
College treasury, operates to reduce expenses to those
who enter at the regular time. Still, as the amount re-
ceived by the College is small, and as the charge may
sometimes be inconvenient to the pupil, the undersigned,
while he cannot admit that it is obnoxious to the stigma
which has sometimes been cast upon it, concurs with his
associates so far as to recommend its discontinuance.
2. The second proposition laid down, was understood
to be, that the salaries of the teachers, should depend,
23
in part, on the number of their pupils respectively. The
undersigned replies, that he believes this provision exists
in no other New England College. Secondly. That it
was actually tried at Harvard, from August, 1839, to Feb-
ruary, 1842, a period of nearly three years, and then
given up, (see Treasurer's Report of 1842,) a fact which
ought to receive great regard. There are, as the under-
signed thinks, other grave objections, which he omits to
state, from an unwillingness to prolong this document.
3. Another proposition, laid down by the majority of
the committee, was, that there is nothing in the statutes
of the several foundations of professorship, which would
restrict the corporation in diminishing expenses, any more
than if the professors on those foundations were paid en-
tirely from the College treasury.
From this proposition the undersigned dissents, and
thinks the affirmative cannot easily be maintained by any
one who reads, attentively, the statutes imposed by the
founders of the Hollis Professorship of Divinity, the Pro-
fessorship of Mathematics and Natural Philosophy, the Al-
ford, the Eliot, or even the Smith, Professorship.
4. Another proposition laid down, was, that no salary
should be hereafter fixed by the Corporation, without the
consent of the Overseers. In opposition to this, the un-
dersigned refers to the charter of the College, and the
practical construction it has received from the usage of the
Corporation and Overseers, for nearly two hundred years,
both of which concur in proving that the exclusive control
of the finances and revenues of the College, belongs to
the Corporation.
ſt appears from Quincy’s History, Vol. 1, Appendix 57,
that, in 1723, this question was pointedly argued before
the Governor and Council, on the basis of the charter, and
24,
the decision was in favor of the Corporation. This deci-
sion, as stated in the same work, has not been disturbed
in any subsequent legislature, and the practice, it is be-
lieved, has been uniform. If, under such circumstances,
this question is not to be considered as settled, the under-
signed knows not how any question can become so.
5. It was also proposed to raise a joint committee of
the Overseers and Corporation, to take measures for re-
ducing the expenses of instruction.
The first objection to this is the very important one
which lies against the whole tenor of the conclusions of
the majority, viz., that it is assumed that such diminution
can be made, without injustice to instructors, or injury to
the cause of education, a position which, if true, is not yet
proved.
The second objection is that, by the very terms of the
charter, such a proceeding would be illegal, as the charter
gives the Overseers, in no case, any other than an assent-
ing, or dissenting, power.
To the undersigned, such a measure seems as irregular,
as if the Governor of one of the States, in virtue of his
power of approval or veto, should assume a place on a
joint committee of the legislature, for the purpose of fram-
ing and reporting a bill.
6. It was said that it should be made part of the Presi-
dent’s duty, (without however applying the rule to the
present incumbent,) to take part in instructing the stu-
dents. This could not be done without an important
change in the very various and laborious duties of that
office. This is a question of much importance and diffi-
culty, and as it is confessedly one not of immediate neces-
sity, the undersigned cannot see the propriety of now
agitating it.
25
7. It was said that the dearness of the articles of life at
Cambridge was an additional reason why the cost of tui-
tion should be diminished.
True, so far as the same is practicable. But it is in
some measure rendered less practicable by this very cause:
for the high cost of the means of living is a burden on in-
structors as well as on students. A salary may be no more
than just at Cambridge, which might be exceedingly lib-
eral in some other places.
In relation to the first resolution referred to this com-
mittee, which states in substance that the expenses of
tuition at Cambridge, where a majority of the professors
are established on endowments, ought not to be greater
than in colleges where the professors are chiefly supported
from the quarter bills of under-graduates, it may be ob-
served, that, if there were no teachers at Cambridge ex-
cept such as are established on foundations, the expenses
there would be less than at many other colleges; for in
that case the whole amount paid by under-graduates,
towards the salaries of teachers, would be about $4550
annually, or $18 20 per under-graduate.
This appears by a table hereto annexed, drawn from
the treasurer's last report.
There are other officers paid entirely from the general
treasury; and with regard to these the foundations are of
no moment, at least, if we except the income of the Per-
manent Tutors’ Fund, of less than $1300 annually.
The true question is, whether the whole number of
officers, with and without foundations, or the salaries of
any of them, can be diminished 7
This general question has already been noticed. Ad-
mitting the right to make such a change, and this with
respect to some of the teachers is certainly questionable,
4
26
the propriety of doing so, as has been already intimated,
must be made out by those who advise it; and the under-
signed repeats, he knows not how it can be decidedly
recommended, without a large amount of information to
be procured from the Corporation and the Faculty. Be-
sides, when it is asked why education should be more
expensive at Cambridge than elsewhere, we should not
forget another important question, whether the additional
amount of useful knowledge there taught is not worth the
difference P Not to justify any expense really unnecessary,
but to judge more clearly, what should be so denominated.
It has been suggested to this Board, that no Professor
ought to be chosen on any new foundation till the income
should be singly sufficient for the support of a competent
officer. The undersigned is inclined to assent to this, ex-
cept in cases when the branch of knowledge proposed to
be introduced should be of great and manifest utility.
It has been further suggested, that on the occurrence
of a vacancy, in this description of professorships, it should
not be filled, till the fund had accumulated to a sufficient
magnitude. To this the undersigned cannot assent in all
cases. Take, for instance, the two professorships of this class
which draw most largely from the general College treasury.
These are, that of physics and astronomy, and that of
chemistry; were either of these to become vacant, the
fund from its foundation would not, for many years, be
large enough to support a Professor. But in this country,
these are among the last professorships, if a distinction
should be made, which should remain unfilled. It was
beautifully said by John Quincy Adams, at the time when
the South American States emerged into independence,
that “South America was a new world of matter for a
new world of mind.” The remark is, and will long be,
27
applicable to our own country, abounding as it does in
physical treasures and resources, which are, as yet, untold,
undiscovered, and unsuspected.
The undersigned cannot but be sensible that he has
done very imperfect justice to the subject referred to the
committee.
The time allowed has proved, as he intimated, when
appointed on the committee, far too short for those re-
searches which he should consider as indispensably requi-
site. But he felt bound to obey the voice of this Board,
and to render every service in his power, in fulfilling the
important and interesting task confided to the committee.
This he has done, and now asks leave to discharge him-
self, by presenting to this Board such results as he has
been able, under all circumstances, to reach.
He has felt it due to this Board, to his able and learned
associates on the committee, and to himself, to shew that
he has not differed from those associates on slight grounds,
nor without careful consideration.
But, while the undersigned cannot feel authorized to
pronounce any positive opinion on the question, whether
it be practicable to reduce, in any proper way, the expen-
ses of tuition at Cambridge, he is far from denying, that
such a reduction, if practicable, is highly desirable, if it
can be effected without injury to the great cause of edu-
cation, or injustice to the rightful claims of any teacher,
and he has subjoined a Resolve, recommending the sub-
ject to the consideration of the corporation. The high
character of all the individuals composing that body, and
their well known fidelity and assiduity in discharging their
official duties, form a sufficient warrant, that this consid-
eration will be attentively given, and that the result will
be satifactory to this Board and to the community.
28
On Monday morning, February 24, after the preceding
remarks were written, the undersigned received a Report
in extenso, drawn up by the chairman. He has examined
it as fully as the time has admitted, and now submits a
few additional observations on some portions of the same.
1. It is distinctly stated that a reduction of the ex-
penses of tuition, at the University, is practicable, expe-
dient, and required by a just regard to the public good.
To this the undersigned merely repeats the objection al-
ready made, that, if practicable, it is not yet proved to be
so, and cannot be, without more information than is now
possessed by any of the committee.
2. Much of the Report is taken up in a comparison of
the amount of College expenses at Harvard, with the like
amount at another distinguished Institution. The reason-
ing on these facts would be more satisfactory, if a like
comparison were instituted between the course of educa-
tion at the two Seminaries. It might appear from both
comparisons taken together, that where the cost was the
greater, the equivalent to be received was so, likewise. Still
the undersigned repeats, that he should be heartily grati-
fied by any reduction of the cost of education at Harvard,
which might be effected without a like reduction of the
amount of useful knowledge taught there, and without in-
justice to any officer.
3. It is recommended, that the salaries of instructors,
should depend, in part, on the whole number of under-
graduates. This varies, somewhat, from a proposition al-
ready noticed by the undersigned. He observes, equally,
of both propositions, that the plan proposed exists, as far as
he knows, at no other College in New England, and that
he thinks the expediency of introducing it, a question re-
quiring further investigation, and one which could best be
29
determined, in the first instance, at least, by the Corpo-
ration.
4. It is intimated, that some funds, belonging to the
Theological School, might be reclaimed, for the benefit of
the under-graduates. The undersigned has good reason
to believe, from information derived from members of the
Corporation, that this intimation is erroncous. On this
head, the President has stated to the undersigned, “that
the Theological School, as such, receives from the College
treasury, not one farthing, Its incomes are derived from
the specific funds granted by their specific donors.” The
two Professors of Theology receive $200 each, annually,
for performing the duties of Chaplains, as correctly stated
by the chairman, in another part of the Report.
The Report concludes with three resolves:
That the Overseers of Harvard College do not consent
that a person, fitted for an advanced standing, should be
charged at the rate of $45 per annum, according to the
standing to which he is admitted. The undersigned has
already expressed his opinion on the abolition of the charge
in question. But he is not a little surprised at the terms
of the above resolve. It is certainly full late for the Over-
seers to withhold their consent to a rule which has existed
for a long time, and of which the validity is not ques-
tioned.
The second resolve is, that the Overseers of Harvard
College do not consent, that the general funds of the Col-
lege should be impaired, or an expensive building be un-
dertaken, without the most express advice of the Over-
see rs. To this resolve the undersigned objects its absolute
illegality. The charter, and the practice of nearly two
centuries under it, give to the corporation the exclusive
30
control of the finances and revenues of the college, as al-
ready stated. The undersigned cannot believe that ei-
ther this resolve, or the last to be mentioned, will receive
the high legal sanction of his friend and associate on the
committee from the district of Worcester.
The next resolve is, that the tuition fees of Harvard
College should be reduced from seventy-five dollars per an-
num to thirty-three dollars per annum. This certainly as-
sumes the whole of the questions before the committee. It
would have been gratifying had some mode been suggested
by which such a large reduction would be practicable. The
undersigned firmly believes it to be impossible, consist-
ently with the interests of education, or with that regard
to existing rights, which he is happy in finding emphati-
cally asserted, in more than one passage of the chairman's
report.
The last resolve is, that a joint committee of three from
the Overseers, and two from the corporation, be appointed
to mature a plan for reduction at the earliest practicable
period. The undersiged has already expressed an opin-
ion of the illegality and irregularity of such a proceeding,
and on referring to his remarks can find nothing to add
or to qualify.
In place of the above resolves, the undersigned respect-
fully suggests the passage of the following:
Resolved, That it be recommended to the corporation,
that no fee be hereafter paid for admission to an advanced
standing.
Resolved, That it is highly desirable that the cost of ed-
ucation at the University should be reduced, so far as the
same can be effected without diminishing the amount of
useful instruction, or injury to the rightful claims of in-
31
structors, and that this subject be recommended to the
serious consideration of the corporation.
Resolved, That it be recommended to the corporation
to consider the expediency of providing, that salaries here-
after established shall depend partly on the number of un-
der-graduates.
Respectfully submitted,
JOHN C. GRAY.
Senate Chamber, Feb. 25, 1845.
NotE.—It will be perceived that the above remarks apply in part to the positions ta-
ken in committee, February 12th, and in part to the report submitted to the undersigned
32
TABLE OF PROFESSORS,
Who derive their Salaries partly from the income of their respective foundations,
and partly from the General Treasury of the College, according to the Treasu-
rer's last report. The Hollis Professorship of Divinity is vacant.
JV. B. Income on Foundations is estimated at five per cent. on the principal.

No. Professorships | Names of Professors. "..." º Whole Salary.
1 | Alford, - - Professor Walker, $1,321 36 $678 64 $2,000
2 | Boylston, - G6 Channing, 1,340 40 459 60 1,800
3 Eliot, - - £6 Felton, 1,029 50 770 50 1,800
4 Erving, - - $6 Webster, 166 67 | 1,033 33 1,200
5 Perkins, - {{ Pierce, 1,000 00 | 1,000 00 2,000
6 Smith, - - 46 Longfellow, 1,101 89 398 II 1,500
8 Hollis, - - 46 Lovering, 178 44 1,321 56 1,500
9 || Drs. Ware and Warren, (both,) 833 85 166 15 1,000
6,972 II | 5,827 89 | 12,800
Deducting income of Permanent Tu-
tors’ Fund, * * sº * : Gº: s 1,276 40
4,551 49
[FROM THE STEwARD.]
Term Bill (including charges of Both terms,) for the year 1843–44.
Instruction, Library, and Lecture Rooms, sº tº g * . $75 00
Rent and care of Room, . g * * tº ge e 15 00
Special Repairs, by general average; average for 4 years last past, 2 54
Class Books, average of the year, . e & * g © º 11 20
Wood, or other fuel, average of the year, tº g g g 14 27
Board, in Commons, 40 weeks, at $1 75 or $225 per week; average
$2 00 per week, . ſº * e & e © & © 80 00
Average bill of the whole year, e e g . I98 01
Washing and Lights, . te * • • g e º e 12 00
$210 01

MR. GRAY'S LETTER
T ©
GOVERNOR LIN CO LN
ON
HARVARD UNIVERSITY.
L E T T E R
goverNor LINCOLN,
IN RELATION TO
HARWARD UNIVERSITY.
B O S T ON
FROM HALE’s STEAM-POWER-PRESS
W. L. Lewis, Printer, No. 8 Congress Street.
M D CCC XXXI.
T O H I S E X C E L L E N C Y
L E W I L I N C O L N,
GOVERNOR OF MASSACHUSETTS.
*-*-
SIR,-The various reports, to the disadvantage of
Harvard University, which are always circulating
among us, have been recently urged with so much zeal
and vigor, and such an appearance of uniform and
organised effort, that some of its friends are appre-
hensive, lest these attacks, keeping each other in coun-
tenance by their noise and their numbers, and making
up in activity what they want in strength, may im-
pair the credit or diminish the usefulness of the In-
stitution, if they remain any longer unanswered.
Yielding reluctantly to the wishes of these friends, I
have at length determined to answer such of the reports
in question as I have heard and can comprehend. This
letter is addressed to you, Sir, because, as Governor of
the Commonwealth, you preside over the Board of
Overseers, and therefore it seemed not improper that
it should be so ; and because your name may give it
Some consequence, and thus occasion it to be more
extensively read. It is written without consulting any
other member of the Corporation. It is written with-
out fear for the cause, which will triumph as soon as
it is understood. It is written without anxiety; for
4
all these clamors seem to me a good omen ; they show
that the enemies of the College are alarmed ; and at
what are they alarmed but at the apprehension of its
prosperity ? Having a higher opinion of their sagacity
than of their fairness, I rejoice in their fears.
I disclaim all attacks on the personal character of
any individual, or of any class, party, or sect. It is
no uncommon thing to respect a man and not his ar-
guments; or to respect the arguments and not the man.
In speaking, therefore, of the arguments or pretensions
advanced by any man or set of men, either in their
own behalf, or in that of others, it is my intention to
say what I think of the arguments and pretensions
themselves, without the slightest reference to the pri-
vate characters of those, by whom or in whose behalf
they are urged. By the term enemies of the College,
I do not mean any particular sect or party, for I
know none, which allows any man to call it so ; but
I mean those, of whatever party or sect, who are
united in hostility to the Institution. Nor do I apply
this term to all, who have made complaints against the
College. No doubt many of its friends have been de-
ceived, and join in these calls for information from a
sincere desire to see its government properly adminis-
tered. If any of the objections which I shall answer
have been made both by friends and by enemies, the
former will understand me as answering them in the
spirit of friendship. But the tone, in which some of
these calls are made does not please me, I do not
admit the absolute right of anonymous writers to
make any such call. What claim have they to any
5
control over the College, or to any explanation of its
affairs f An exact scrutiny by the proper authority
into all our public institutions is right; but positive
assertions without knowledge, charges without in-
quiry, and condemnation without proof or hearing, are
not right. And is this the proper authority ? We
have been told, indeed, that these demands upon us
are made by the Public. But surely every anony-
mous writer in the newspaper cannot call himself the
Public, and make claims upon us in that capacity.
At least we may say, ‘come out and show us what
sort of a Public you are.’ I have no desire to call
them out, Sir, nor any care about it ; but till they do
come out, I say they have no right to make such
claims.
The State, it is said, founded the College, and there-
fore has a right of visitation over it. But then who is
the State f Surely not every person in it. And what
is the right of visitation P Is it an arbitrary right to
question, control, and punish at pleasure ; or is it a le-
gal right to be exercised according to the forms and
principles of law and equity P How is it exercised in
England, from which we derive the right itself, and
the form of all our judicial tribunals. Does even
the King himself exercise it personally P Not at
all. The proper tribunal causes all parties in interest
to appear before it, and after fair notice and full hear-
ing, and deliberate consideration, does unto them what
to law and justice may be found to appertain. And if
Massachusetts should see fit to exercise a similar
power, she would undoubtedly exercise it through the
6
agency of the proper tribunal. It may be questioned
whether she has not already established such a tribu-
mal in the Board of Overseers, and delegated to them
this power of visitation. If it be so, the power is ex-
ercised every day. But if not, if she still retains a
right of visitation above and beyond the Overseers,
how would she exercise it P. She would do what she
has always heretofore done when she wanted to exer-
cise equity powers without a Court of Equity; she
would enable her Supreme Judicial Court to determine
the case according to the principles of right and jus-
tice. At any rate she would do what should be fit
and proper. I have no fear that she will let her
power be used as an instrument of injustice by our
enemies. If she comes in her might, she will come in
her dignity and her righteousness also, and will not
smite us right or wrong at their bidding. I feel not
the least alarm at the intimation, that they can wield
the power of the State against the College to its ruin,
and that they are determined to do so, I doubt
whether they understand the temper of the People of
Massachusetts. . -
So much for their pretensions to the right and the
power of controlling the College. Now for a few of
their complaints. The first and most frequent is, that
there are not so many students in Cambridge as in
some other Colleges. What then P. There is no In-
stitution in New-England or in America, in which the
morals and manners of youth are more carefully or
more successfully guarded and improved; none in
which they can now obtain, I say it boldly and with-
7
out disparagement or disrespect of others, an education
nearly so complete; and we are every year doing
something to make it still better. It is indeed for this
precise purpose that we are committing another of our
sins ; that of laying up a little money to this end.
What more can we do P Let them tell us frankly and
explicitly what they wish us to do. Are any of them
actuated by a desire to have the College placed under
the control of some party, to which they belong ; and
if they are so, does not this fact alone render all their
complaints somewhat suspicious f Are any of them
annong those over-zealous champions, who, stepping
beyond what moderate and candid men of any party
would approve, have been concerned in calling secret
meetings for the purpose of pledging themselves to
each other to use all their influence, to prevent those
parents who might otherwise do so, from sending their
sons to Harvard University ? Or are they among
those, who are constantly endeavoring to accomplish
the same object, by proclaiming, wherever they can
make themselves heard, that every father who sends
his son there, puts at hazard his salvation, and that
of all his posterity? And shall these same men, (if
indeed they are the same,) as soon as their unremitted,
universal, and organised efforts, have been attended
with some small success; so small as to be perceptible
only to themselves, shall these same men turn round
on the College and condemn it for the consequences
of their own proceedings f Is this fair, or reasonable P
I cheerfully leave this question to the good sense of the
People of Massachusetts. If their complaint be sin-
8
cere, and not a mere pretext; if they really desire to
have the number of students in Harvard increased, they
certainly have adopted a most extraordinary mode for
the accomplishment of their object. When did ever the
friends of Harvard, attempt by secret cabals or open
clamors, to deter parents from sending their sons to
any other Institution, which they might prefer P If
they had done so, Harvard would have disowned them.
And after all, how much truth is there in the asser-
tion ? There are more students in Cambridge, I be-
lieve, than in any other College but Yale; and let it be
considered how many are induced to go to Yale by the
great amount of charitable assistance received there
from the society for theological education, and from
other funds. Last year one hundred and forty-
four undergraduates received charitable aid in Yale,
and only thirty-four in Harvard ; and this aid was
probably necessary for their education in each. We
are told that some Colleges attract more students from
other States than Harvard. This is true. But she
attracts many more students from her own State, than
any other Institution from the State to which it be-
longs. Which is the greater praise f
But the expenses of a student in Cambridge it is
said, are unreasonably great. That they are greater
than in some other Institutions, I readily admit. But
this difference results from the nature of things, and
not from any fault of the College. These expenses
are of two kinds; the expenses of living, and the
expenses of education. As far as the first are con-
cerned, there are Colleges in country towns no doubt,
9
where rent and fuel and food are cheaper than in
Cambridge ; and I am glad of it, because it enables
those parents, who cannot afford to have their children
educated so near the Capital, to give them a better
education, than they could do, if these Colleges did
not exist. But then all these things are cheaper in
the College here, than any where else near it, and this
by the exertions, and at the expense of the College
Government. Thus, for instance, they let their rooms
at less than one half the sum, which a similar room
costs out of College. So by providing dining halls and
kitchens and furniture, at the expense of the College,
the cost of board to the students is reduced, much
below what is paid for it in the neighbourhood, and
lower than it could be otherwise supplied. It is one
dollar and seventy-five cents per week. If it can be
had in Amherst for less, we may rejoice in their good
fortune, but we cannot share it. The young men
studying in Cambridge, cannot at the same time board
in Amherst. So of wood. It is bought in the cheapest
Season, in large quantities by the Institution, and dealt
out to the students as they want it, without profit. No
doubt, it is cheaper in the country. But what then P
The students must have fires, and while they are study-
ing in one town, they cannot keep their fires in another.
As to the expenses of education itself, including the
books necessary for it, they are less in Cambridge
than they can be in any other part of New England.
With regard to the books, this is obvious. They are
purchased in large quantities, at the lowest rates at
which they can be obtained even by booksellers;
2
10
many are brought from Europe, because they may be
bought there cheaper than in America ; and they are
sold to the students, like the wood, without profit.
Now it is impossible that these books can be sold so
cheap in any country town, as in Cambridge ; for the
bookseller in the country can get none of them
cheaper than the Cambridge student, and for all the
foreign books, and many others, he must pay more.
And let him be as moderate as he will, he must charge
on them some profit beyond the cost to him, or how is
he to support himself and his family P. The assertion,
therefore, that text-books are cheaper in any country
town than in Cambridge, cannot be true, unless in
relation to some particular work printed near that
place, which must be a small matter, and must be
much more than counterbalanced by the far greater
number, printed in and near Cambridge. It may be
true, that the scholar in the country town, pays less
in the year for his books, but it does not follow that
his books are cheaper. If he pays two dollars in a
year for two books, and the student in Cambridge
pays four dollars for eight books, each of equal value,
the former pays only half as much for his books, but
he pays twice as dear. If, indeed, any of the Cam-
bridge books are not worth having, or not worth the
cost, or not worth as much as the books used else-
where, the case might be different, but I know no
reason for making any such conjecture. Let me add,
that no student is compelled to buy either his fuel or
his books from the College, but if he can get them, or
any of them, cheaper in any other manner, he has the
right to do so.
1 I
So it is with instruction. There may be less money
paid for it by students elsewhere, than in Cambridge,
but they do not get so much of it in proportion to the
cost; and therefore it is not so cheap. But some
persons would not have so many books and so much
instruction. Very well ! Then they do not want a
whole education, but only half an one. They do not
want our article. No doubt they can get half an one
cheaper; but we have not got it to sell. -
Enormous sums have sometimes been stated as the
actual amount of a student’s expenses in Cambridge;
perhaps truly stated. But there is no limit to the
amount which a young man may contrive to throw
away, if his friends will let him, and this is equally
true in all places. The necessary expenses of a
student at Harvard, including every thing but clothing,
do not exceed two hundred and ten dollars a year.
If he is allowed to spend thousands, this is no fault of
the College, but an injury done to it, by him and his
friends; and it is not they who have the right to
complain, but the College Government.
It has been made a subject of complaint, that the
College does not now expend its whole income. Last
year it is said to have received above eleven thousand
dollars more than it spent. But take a series of five
or ten years, and it will be found to have laid up little
or nothing. Some time ago, there were spent for
many successive years, several thousand dollars more
than the whole income. Losses will occur in adverse
times, and if they are not made up in prosperity, their
accumulation through a long series of years would be
12
ruin. The enemies of the College might be pleased
with this, but it could hardly gratify its friends. Be-
sides, the capital must gradually increase, to counter-
balance the diminution of income, arising from the
gradual decrease in the rate of interest, which seems to
take place in every flourishing country. For the last
three or four years, too, we have lost nothing by bad
debts, and no wisdom or vigilance, can render this
good fortune perpetual. And, moreover, let the build-
ings be kept in as good repair as possible, they will
not last forever. The roofs, the floors, the very walls,
must be in time renewed, and something ought to be
reserved for this purpose, and something also to im-
prove and extend the Institution. And if three or
four thousand dollars a year, were laid up, for these
objects, which is more, I believe, than ever has been
done for five years in succession, should we be
doing as much in this particular for posterity, as our
fathers did for us ; Should we be doing even enough
to keep up the state of education in the College, to
the increasing demands of the country P
It is asserted, that the funds from which this income
is derived, were given by the State, in order to make
education cheaper, and that all that income, therefore,
ought to be applied to this object. But how does it
appear that they were given by the State? Individuals
have given money too, and a great deal of it. The
assertion assumes, that their money has been expend-
ed, and that the money remaining is that given by the
State. But may not the fact be otherwise P. Nearly
all of the grants to the College by the State, were
13
made for specific objects, and the money given,
was expended on those objects. Even of the last
grant of 1814, one quarter part was expressly given
for the benefit of poor but promising students, and
was so applied ; nearly another quarter was designed
and appropriated for building the Medical College :
and more than the whole residue was expended in
building University Hall. This seems to me, how-
ever, of comparatively little consequence, since neither
the State nor individuals, gave their money for the
sole purpose of making education cheaper, but full
as much, for that of making it better ; for that of
building up an Institution which should go on con-
stantly improving, to meet the expanding views,
and supply the growing wants, and sustain the
rising glories of our prosperous country. Shall it,
on the contrary, stand still P What would the best
education, that could be obtained in New England
a hundred years ago, be good for now P And
will not the best education of to-day, be deemed as
insufficient a hundred years hence F I trust that it
will, Sir, and more so. The ultimate object of all
these donations, was the public good. Making edu-
cation cheap, is one mode of promoting that object,
but not the only one. Let not all the funds then be
applied to this alone. A great deal has been done in
this way. Let us do something in the other also, and
make it better. I will state a few of the measures,
which have been adopted, to render education cheap
here. It is estimated that the board, for which the
student pays one dollar and seventy-five cents a week,
14
actually costs the College, taking all things into con-
sideration, at least two dollars and twenty-five cents,
so that each student who boards in Commons, receives
half a dollar a week towards his board. It is not yet
three years, since the charge to the students, for in-
struction, rent, &c., was reduced from ninety-seven
dollars, to ninety dollars a year; and, before making
any further reduction, it is best to have a little more
experience of our ability to bear this.
This sum of ninety dollars, may be thus apportion-
ed; forty-eight for instruction, not half what is paid in
the best schools in this vicinity ; twelve for rent of
room ; six for heating and keeping in order the lecture
rooms, and other public apartments, used by under-
graduates; twelve for the Steward, Commons, Cata-
logues, and Commencement dinners; three for the
Librarian, and for keeping the Library of thirty-five
thousand volumes in order; three for cleaning and
taking care of the student's rooms; and six for
general repairs. Of the moderateness of the charge
for rent, I have already spoken. For every one of
the other charges, the College pays more than it
receives from the students. I will not trouble you
with the details of them all. The charge for instruc-
tion is much the most important. Now the College
pays exclusively of the Law School, Medical School
and Divinity School, for the President, Professors, and
other officers engaged in the instruction and discipline
of undergraduates, about twenty-two thousand dollars.
From two hundred and fifty students it receives forty-
eight dollars each, making twelve thousand. The
15
friends of the students, therefore, certainly cannot
complain. They get now, a great deal more than
they pay for. In addition to what they gain in their
board, fuel and books, they get for ninety doilars a
year, an education which costs one hundred and fifty,
and which they could not purchase in any other part
of this country for any sum. When so much of the
price of their education is given to them, why
should they claim still more ?
The money, when any is happily saved, is not
kept by the College Government, to be divided among
themselves, but to be spent in the manner most
useful to the public. There is no difficulty in spend-
ing the money well; the difficulty is to get it, and to
get enough of it to accomplish some great and useful
purpose. If this shall ever be done, and it shall be
applied to some purpose perfectly unobjectionable,
will not the College be condemned for spending
what they are now condemned for saving P I hope
not, Sir, but I fear it. How it will be spent I
know not, but it might be spent in many ways;
in building an Observatory, and buying instruments
to put into it; or a Library, and books to fill it;
or in founding Professorships, that are already much
wanted. But let us see whether the greater part
of this sum of eleven thousand dollars, which we are
supposed to have laid up this year, is not, after all,
in danger of being expended before the year is out.
Two thousand dollars of it, come from the Law
School, and must, therefore, rightfully be expended on
the Law School; so that this sum is at once to be
16
taken out of the account of what relates to the under-
graduates. Five thousand are appropriated to the
Library, which has been long grossly deficient in im-
portant books, and is so still. A Professor of Latin
has been appointed with a salary of twelve hundred
dollars a year; nearly one thousand dollars are paid
for additional instruction in Elocution; about eight
hundred have been applied to enable the Professor of
Anatomy to give instruction to the undergraduates in
his department by models; and the place of another
Professor, absent by leave on account of sickness, is
of course supplied at the expense of the College. All
these expenses will certainly leave no very large sum
to be laid up for any general objects, however im-
portant. Indeed, it may be feared, that even this
year, our income will be hardly sufficient to meet the
demands on it.
Sir, I have just now mentioned buying books as one
fit mode of spending the College funds. There is
nothing which has been so much complained of as our
appropriating so much money to the Library. There
is nothing, which I am more ready to defend. The
Library, great as it is, is still deficient, very deficient
in every department. Few of the Professors, I be-
lieve, can find in it the books necessary to enable
them to perform their duties to the College.
It has been stated, that till within three or four
years, nothing has been appropriated to the Library
from the general funds of the College since the Ame-
rican Revolution. When, therefore, we are asked,
‘why spend the enormous sum of five thousand dol-
17
lars in one year upon the Library f Why not rather
two thousand P’ I ask, in turn, why not rather twenty
thousand f The only answer I can give to my own
question is, that I thought five thousand the most we
could appropriate to that object, with a due regard to
all the other interests of the Institution. If the books
bought are all good books, selected so as to be best
adapted to our present and most pressing wants, highly
and permanently useful, and cheap in proportion to
their real value, I can hardly find any other limit
than our means, to my willingness to buy them.
There is no department in the Library at all to be
compared in extent to that, which contains the works
relating to America, but even this is not complete. I
had not been in London three weeks last summer, be-
fore I bought for the College, with their money, but
not without authority, (our enemies are suspicious,)
four hundred volumes, all relating to America, not one
of them before in the Library, and many not in the
country. One of these was the best book on Geogra-
phy that existed in the time of Columbus, showing
exactly what was his starting point, what tools he had
to work with, and of course how much was due to
his own great genius. Happening a few days after it
was sent to America, to mention my good fortune in
finding it, to Washington Irving, he told me that Co-
lumbus’s own copy of it still existed in Spain, full of
notes in his own and his brother Bartholomew’s hand-
writing, and that if I could find another copy he would
have a fac-Simile made in it of all those notes, which
he stated to be highly interesting, and to contain some
3
18
facts not known to the world. Of course, for so in-
teresting a purpose, I ordered a copy to be procured,
if possible, by any labor, or at any price. But after
the most diligent search, it was impossible to find one
in London, Paris, or Madrid. This result proved its
value, and the lovers of Dollars and Cents may be
gratified to learn that the College can sell it to-mor-
row for ten times what it cost them.
But it has been gravely and repeatedly said, ‘what
need of more books f You have more books now
than any body wants to read.” That is true ; but not
more than every body wants to read, or to consult, or
to refer to. A man does not go into a Library to read
the volumes in order as they stand on the shelves, or
to count them. He goes there to find all the good
books that have ever been written on the subject on
which his mind is then engaged. To find exactly
what he wants, exactly when he wants it, may save
him the labor of a life, or make that life a blessing to
mankind. Give to Dr. Bowditch thirty thousand vol-
umes, and it would not compensate him or the public
for the loss to him of his one La Place. In a country
where any value is attached to science or to letters,
there ought to be at least one great library containing
the means of excitement and improvement for talents
of every kind, food for all tastes, weapons for every
hand ; and wherever that Library shall be, there will
be the centre of instruction for the whole country;
there will be the great establishment for education.
Moreover, nothing will tend so effectually to build up
such an establishment and attract to it efficient teach-
19
ers, as a Library equal to their wants; and we must
not be content to have only books that will be con-
stantly used, and neglect to obtain those above the
common reach.
Let me suppose, or rather let me state, for I be-
lieve it is a fact, that a most accomplished Profes-
sor wishes a particular edition of a book, which is not
to be found in the country, and desires us to send for
it, to enable him to explain to his pupils more fully
the meaning of the author he is required to teach
them, the charm of his sentiments, and the graces of
his style. It is one of those classic writers, who have
been regarded for more than two thousand years with
admiration and delight by every man of cultivated in-
tellect, and refined taste ; who have been his teachers
in youth, his models perhaps in manhood and his
comforters in age, his companions at home, his
guides abroad, shedding light on every path and
breathing consolation in every sorrow. Will it be a
sufficient answer to tell him, that though we have not
the book he wants, we have a great many that he does
not want, and more than he can read, and bid him
study them If the only use of hooks were to teach
us our letters, the argument would be a good one.
Any book would do for that. But it cannot be list-
ened to for a moment, by any one, who ever entered
a library for the purpose of instruction to himself or
benefit to others.
The clamors against all classical learning, which
have been so current among us within a few years,
have also been pressed into the service of the enemies
20
of Harvard. The cause of ancient learning has been
so ably defended, that I need say little on this head.
To the question what advantage is there in mak-
ing use of Greek and Latin sentences, when address-
ing those who cannot understand them f I answer,
none at all, and nobody does it now-a-days that knows
any better. It was fashionable once, but it would be
fantastic now. It is in vain to talk of the beauties of
the ancients to those who will not look at them, and
could not see them if they did, and yet will condemn
them ; though, since they have no means of forming
any judgment whatever, they have no right to pro-
nounce any.
But if any young man, having some slight acquaint-
ance with the classics, should doubt whether there be
any practical advantage in cultivating it, let him make
a few experiments of this kind, and then judge for him-
self. Let him select some striking passage in one of the
ancient authors, no matter what passage; let him take
if he please, that gem of ancient eloquence, the Funeral
Oration, in the second book of Thucydides, and let him
translate it into English as well as he can ; and then let
him look at his work, and what will he see : If he has
any taste or feeling, or any perception of eloquence,
what will he see : His version shall be as good as you
please, with the exact form and features of the origi-
mal, and every shade and line ; but where is the
graceful movement, the life, the inspiration ? Let him
turn it over and over to find out the reason of the dif-
ference, and try to mend it at intervals, and by and by
he will find, that though he has nothing like the origi-
21
mal, he has something much better than his own first
sketch. After all, to be sure, he has only a transla-
tion; nothing of what is called practically useful :
nothing he can go to town-meeting and repeat. But
after a little practice in this way, he will perceive that
he has acquired the ability to express every thing he
has to say, more promptly and effectively, and this
faculty he can carry to town-meeting, or anywhere
else. And are not frequent and successful attempts
to imitate good models, the best means of improve-
ment in every pursuit P. It is difficult indeed ; but it is
always more difficult to learn an art, than to apply it.
This is mentioned, however, only as an experiment
and exercise for youth. The true way to study an
ancient author is to abandon ourselves to him entirely,
and let him bear us along with his current. We shall
thus unconsciously imbibe some of his qualities, and
acquire without effort, nay, with delight, greater ad-
vantage than the student can gain by the laborious
process just mentioned. We may thus learn from our
model not only to speak, but to think and to feel; may
gain not merely facility of expression, but a portion of
the spirit of his eloquence ; and catch something of
the freedom and dignity of his action, instead of a
scrap of his mantle. This is the way to use the an-
cients, and the way to make the moderns.
But why not take for models our best English wri-
ters f Because they are not so good models. Who
compares our Statues with the Venus or the Apollo;
or our Churches with the Parthenon P And in the art
of writing, the difference between the ancients and the
22
moderns is greater than in any other art. It is ask-
ing no great concession to be permitted to assert, that
people, in general, are most struck with what is most
striking. Now, who will deny, that in the finest of
the ancient writers, the beauties are most striking,
and the faults hardly perceptible f And who will as-
Sert it of our own P. In simplicity and precision of
thought, concentration of feeling, and that happiness
of arrangement and connexion, which make a work
one compact and harmonious whole, instead of a col-
lection of disjointed parts, we cannot pretend to be
their rivals. If we should learn nothing from them
but brevity, it would be a lesson well worth the labor.
Many of the most perfect orations, which have come
down to us from antiquity, may be spoken in less than
an hour, and I doubt whether there is one, that would
require two hours for its delivery. We ourselves have
had a practical lesson about choosing modern models,
which ought to last at least for a century. The favor-
ite model of the last generation, and a good part of
this, was Doctor Samuel Johnson, and every body’s
thoughts were to be clad in his language. A great
man no doubt, one of the greatest in modern times,
and so much the better for my argument; but his style
was fit for nobody but himself. When all the world
would imitate him, what was the consequence f An
accumulation of sonorous epithets, instead of simpli-
city, precision, and force ; and pages to express what
might be said better in a single sentence.
It has been objected to the College, with our other
literary Institutions, that education there is not suffi-
23
ciently practical. Men ought to be educated, it is
said, for the business of life, and their minds ought to
be filled with the knowledge of facts and principles.
This is enough. They will find out for themselves the
way to communicate them. He who can think well,
we are told, will speak well. This is not always true.
He who cannot think well, to be sure, cannot speak
well; and it is best for him to be silent and to mind his
work. But he who can think well and does think
well, will he not speak all the better for knowing how
to speak too? The giant should not despise his ar-
mour. Sampson himself would have done better
with a sword ; and we, who are not Sampsons, can-
not safely rely upon his weapon. Franklin possessed
natural powers enough, one would think, to satisfy
any body; and he must have been conscious of his
strength. But he chose to fight with weapons, and he
Went to work to make them. He, to be sure, took a
modern for his model, not having access to the an-
cients; but he was a man to succeed under every
disadvantage. He tells us himself, how he toiled for
years to form his style. It cost him more labor to
make it, than ever it did to use it. But was it not
Worth making f What a weapon Polished, keen,
effective ; making every blow tell; every touch
electric.
The other charges against the College, I believe all
relate to Theological subjects. First, with regard to
the Hollis Professor, it is said, that the Statutes of the
Founder are violated, in allowing that Office to be
holden by one, who does not profess to believe in
24
the Trinity. It is alleged, that Mr. Hollis was a
Trinitarian. But cannot a Trinitarian found a Pro-
fessorship, to which those, who differ from him in sen-
timent, may be eligible f He was also a Christian,
and may he not have thought it more important to
promote Christianity in its broadest sense, than any
particular modification of it? Mr. Hollis was a Bap-
tist, but he does not require that his Professor shall
belong to the same sect. The question is not what
were his own religious sentiments, but what he meant
to require of his Professor, or rather what he has in
fact required. The provision usually cited in this
controversy is the following Statute;
‘XI. That the person chosen from time to time to be a Pro-
fessor, be a man of solid learning in Divinity, of sound or ortho-
dox principles, one who is well gifted to teach, of a sober and
pious life, and of a good conversation.’
There is another passage, however, which seems to
me not less important; ‘The Plan or Form for the
Professor of Divinity to agree to at his inauguration.”
‘That he repeat his Oaths to the Civil Government; that he
declare it as his belief that the Scriptures of the Old and New
Testaments are the only perfect rule of faith and manners; and
that he promise to explain and open the Scriptures to his pupils
with integrity and faithfulness, according to the best light that
God shall give him. That he promise to promote true piety
and Godliness by his example and instruction ; that he consult
the good of the College and the peace of the Churches of our
Lord Jesus Christ on all occasions; and that he religiously ob-
serve the Statutes of the Founder, and all such other Statutes
and Orders as shall be made by the College not repugnant
thereunto.”
25
Let me call your particular attention, Sir, to the
manner in which he is to explain the Scriptures. It is
not according to the light, which was given to Luther
or to Calvin, nor according to the light given to the
Founder, nor even according to the light given to the
Professor himself, at the time of his election, but
“according to the best light that God shall give him ;’
that is, of course, at any time. Now, supposing the
Scriptures interpreted according to the best light given
to the Professor, either when chosen or at any subse-
quent period, should be opposed to the Trinity, is he not
here most expressly commanded to explain them ac-
cording to his light P But he is also commanded to be
sound or orthodox, and if Hollis by this meant Trinita-
rian, then he must at the same time, support the Trin-
ity. How shall we reconcile this contradiction ? Is it
not possible that Mr. Hollis might have thought Ortho-
doxy to be a belief in the Scriptures exactly as they
are written, allowing each man to interpret them
according to the best light, which shall be given to him,
whatever colour that light may put on them. Might
he not have believed in the Trinity himself, without
condemning those, who sincerely differed from him on
this point ; and without deciding it to be so absolutely
essential, that all, who doubt it, must inevitably perish P
Is not this possible P And if so, will not the supposi-
tion reconcile this seeming contradiction, and make
all his directions plain, intelligible and consistent? If
this question be answered in the affirmative, all doubt
is ended ; for surely common sense and common rea-
son, require us to put such construction on every part
4
26
of an instrument, as may make the whole of it consist-
ent with itself.
Some events, which occurred in the life of Mr.
Hollis, may throw light upon this matter. In the
year 1718, a few dissenting Clergymen at Exeter and
other places, in the west of England, having preached
sentiments which savoured of some doubt in the Trini-
ty, were examined by their parishioners, for the purpose
of ascertaining their opinions in relation to that doctrine;
and when it appeared that they disbelieved it, were dis-
missed from their offices. This led to further inquiries
of the same nature, and producing the same results,
and finally to a controversy, which agitated the whole
body of the English Dissenters. At length, a meeting
of the Dissenting Clergy, in and near London, was
called to be holden at Salter’s Hall, in that city, to
consider of advices to be sent to their brethren in the
West. Shortly before the time appointed for this meet-
ing, a Committee of gentlemen, belonging to the three
denominations of Dissenters, (of which Mr. Barrington,
afterwards Lord Barrington, was Chairman, and Mr.
Hollis, himself, was a member,) prepared “a paper
of advices,” with the design of healing the breaches,
that had been made, and promoting charity and
forbearance ; which paper they recommended to this
meeting of the Clergy, for their adoption. Its great
object was, to disapprove the setting up any form of
men’s invention, in matters of faith ; or any other
test, than that unerring form of sound words, the
Holy Scriptures. The Clergy met, and one of them
proposed amending this “paper of advices,” by in-
27
serting a declaration of their own belief in the Trinity,
so that they might not be suspected of indifference to
the truth. This proposition was rejected, by a vote
of fifty-seven, against fifty-three. It was then propos-
ed, that, before acting on the advices, they should
voluntarily sign a declaration, of their belief in the
Trinity, simply to prevent the fact from being doubt-
ed. This was resisted, on the ground, that any such
statement, would seem to warrant the claim of a
similar statement from others, since the number and
respectability of the meeting would of itself, confer
some authority on their declaration, and give it
the effect of a Creed or Test. Upon this question,
whether any such declaration of their own belief,
should be made or not, the meeting separated into
two parties, and a controversy arose, which raged for
some time all over England, gave rise to a multi-
tude of pamphlets, and ended, as such controversies
usually end, in rendering both sides more violent, and
more obstinate in their respective opinions.
Meanwhile, the two parties met in different places.
One made its declaration of belief in the Trinity, and
then sent its address, recommending peace and modera-
tion. The other, refusing to declare any belief at all,
sent an address, insisting that the Holy Scriptures them-
selves, are the only rule of faith. The latter, though
most of them as good Trinitarians as ever lived, had
their names published in what was called “THE
BLACK List—a list of the names, of those Dissenting
Ministers, who refused to subscribe the declaration for
the Blessed Trinity.” Mr. Hollis’ opinion on this
28
subject, is apparent from one of his letters, dated
March 1, 1721.
“I believe all the gentlemen concerned in signing the letter,
of whom I was one of the meanest in character, were very far
from any plot against the honour of our Lord Jesus, whom we
believe God over all, blessed forever. But if it must be called
a plot, it was to restrain a few over heated zealots from too rash
censuring their brethren ; and to look back, I think had there
not been a majority against subscribing the roll at Salter’s Hall,
at that time, such a Test would have run through all the
Churches in England, by this time, which would have endan-
gered many schisms, and silenced many useful preachers, and
I rejoice their plot did not succeed.’
Another letter from Mr. Hollis to a friend in New-
England, dated August 18, 1722, after mentioning a
pamphlet, which he had received from R. I. Morris,
then a teacher in the College, proceeds thus :
‘I wish you, Sir, to instruct him a little further in the chris-
tian doctrine of more extensive charity, and not (to) judge too
hastily of his neighbour, and exclude from salvation every one,
that differs from him in explication and belief of the article of
the Trinity; a glorious truth it is, but the manner of explaining
it appears difficult, so difficult, that scarce two can say exactly
alike, except they agree on a form, and agree to write after it.”
In the History of the Dissenting Churches, by
Walter Wilson, a decided Trinitarian, the paper of
advices signed by Lord Barrington and Mr. Hollis, is
thus spoken of :
“In the mean time, a paper of advices was drawn up with
the professed design of healing the breaches, that had been
made, and promoting charity and mutual forbearance, but the
real motive was to screen the ministers at Exeter.”
_-T
* Vol. III. p. 517.
29
If this remark is intended to insinuate that those,
who signed that paper, desired to screen the Exeter
Ministers on private or personal grounds, or had any
other motive than that, which they professed, it is not
candid nor just. But if it only means, that their ob-
ject was to heal the breaches, that had been made, and
promote charity and mutual forbearance, by preventing
Clergymen in Exeter and elsewhere, from being turn-
ed out of office, or from being censured or questioned,
for disbelief of the Trinity, the remark is undoubtedly
correct. It is most manifest, that this was the precise
object of Mr. Hollis and his friends. Is it not utterly
incredible then, that those, who at this day, desire
to have any man turned out of his office or compel-
led to resign it, or subjected to censure or scrutiny,
on account of his disbelief of the Trinity, should pre-
tend to shelter themselves under the authority of Hol-
lis—whose example is their condemnation f The
declaration above cited, and especially that clause of
it, which states the Scriptures to be the only perfect
rule of faith and manners, as well as the Statutes
themselves, were evidently drawn up with a full recol-
lection of this controversy, and of the letter of advices
recommended to the Clergy.
There is a document in the College, dated August
2, 1721, and entitled ‘Rules and Orders relating to a
Divinity Professor, in Harvard College, New England,
drawn up at the request of Mr. Thomas Hollis, and
unanimously recommended by us, as necessary to an-
swer his useful design.” It is signed by seven Clergy-
men, and agrees in every thing material to this dis-
30
cussion, with the statutes adopted by Mr. Hollis,
in establishing his Professorship, which statutes bear
date January 10, 1722. The form of the Declaration
was added afterwards. Of these seven Clergymen,
one signed the declaration of belief in the Trinity, at
Salter’s Hall; one refused to join either party in
that controversy, and five are on the BLAck List.
Now is it possible to believe, that Hollis and his
friends on the BLACK LIST, meant to require his
Professor to submit to a Test, and formally to declare
his belief in the Trinity?—the very thing they had
been contending against so strenuously. He is to
declare, that he will observe the statutes, and there-
fore be sound or orthodox ; and this, we are told,
they meant for a declaration of belief in the Trinity.
He is to declare at the same time, that he believes the
Scriptures to be the only perfect rule of faith and
manners, and promise that he will open them to his
pupils, with integrity and faithfulness, according to the
best light that God shall give him. This was the
doctrine of the opposite party, in the great struggle
then hardly ended ; and if these two things can stand
together in the same Instrument, it is a pity, that the
discovery was not made in season to reconcile the
disputants, or to prevent their rupture. But if Hollis
thought it sound and orthodox, to believe in the
Scriptures, as interpreted by the conscience of each
believer for himself, then his direction how to explain
and open them, is not a contradiction of the soundness
or orthodoxy which he requires, but an explanation of
it. Is it not manifest that this was his opinion ?
31
And was he not right Is not this true orthodoxy,
and every thing else sectarianism : What is the use
of a creed P Do not the words of Scripture, express
the meaning of Scripture better than any others can f
Are not the exact words of every written instrument the
best evidence, and in law, the only admissible evidence
of its meaning P It is said that a man must assent to
something, in order to show that he is a Christian.
Why not offer him the Scriptures P. It takes no longer
time to assent to a long instrument, than to a short
one, if it has been read and considered beforehand.
But then different people interpret the Scriptures
differently, and creeds are made to prevent this. That
is the very thing, which no man has a right to prevent;
for to do so, is preventing freedom of conscience.
We are told, however, that every man must have a
creed, that what he believes, is his creed, and that to
state it, is only stating his opinions. If this were in-
deed true, if a creed were nothing but an exposition
of what is believed by him who makes it, no reason-
able man could object to it. But it is not so. It is an
authoritative statement of opinion, and purports to set
forth, not simply what a man in fact believes, but
what he ought to believe. This difference, though
slight in form, is mighty in effect, and inveterate
enough in its venom, to poison the whole fountain
of Charity.
There is precisely the same difference, between
an opinion and a creed, that there is between the
argument of Counsel, and the decision of the Court.
The Counsel sets forth his opinion of the law,
32
with his reasons and authorities to support it ; but
when he has said all, he has said nothing binding
on others, or even on himself, or which any body
ought to obey. But when the Court gives its opinion
of the law, this binds itself, and all the world within
its jurisdiction, and every body must obey it. It is
true, that a Creed is not said to derive its force from
the authority of its framers, but from the fact of its
expressing the true sense of the Scriptures. But
whether it does express the true sense of the Scrip-
tures or not, is the very question at issue. It says
authoritatively that it does; and that all men ought to
find the same sense in them. And this is exactly
what no human authority has any right to say. In
stating that creeds assume authority, I do not mean
that they claim, at the present day, the authority of
Civil Power, but they do claim the authority of Truth,
which is that of commanding assent.
The advocates of creeds in our age, admit, indeed,
that the religious sentiments of an individual ought not
to be controlled by the authority of the State, or by
any society, to which he has not voluntarily attached
himself. But in this exception lies all the evil. A
man has no right, however voluntarily, to transfer to
others the power of dictating his faith ; and others
have no right to accept that power. It is not merely
freedom from the unjust exercise of civil authority, that
is to be maintained ; but freedom of opinion from the
authority of opinion, and the man who surrenders this,
surrenders his liberty. Any association of men, there-
fore, for the purpose of applying a particular human
33
creed as the rule or measure of faith, though it be only
of their own faith, is an association for a bad purpose.
These remarks are not applicable to the articles of the
Church of England, if understood, as Dr. Paley under-
stands them, to be articles of peace. They would pre-
sent a very different question, which it is not my design
now to consider. But it is urged, “How can two walk
together unless they are agreed P’ They cannot, un-
less they are agreed upon their path ; but they may
disagree about other things. Let the path be the
Scripture in the words of the Scripture, and all men
may walk in it together in charity and peace. With-
out doubt, every man may endeavor to propagate his
own religious sentiments by reason, argument, and
persuasion, and especially by showing in his own con-
duct, that they are productive of all the virtues,
including charity; but this does not give him au-
thority to condemn the sentiments of others. He may
allege, that they do not accord with his belief and his
convictions, but he has no jurisdiction to decide, that
they are repugnant to the Scriptures. Let no one
suppose, however, that his belief is a matter of indif-
ference, and that he may choose what faith he pleases.
The only opinion, which any man can innocently hold
on any important religious question, is that, which he
finds after faithful and diligent search, by his own
light, to have the sanction of the Scriptures.
But it has been asked, if I really believe that certain
doctrines are essential to Christianity, may I not as-
sert this f I answer, certainly, you may assert that
you believe them essential, for that is an opinion;
5
34
but not decide that they are essential, for that is a
judgment. I would ask these inquirers in turn, what
they think of him, who interpreting the Scriptures ac-
cording to his best light, considers the same doctrines
unessential * If they reply that he is right, they are
Orthodox ; if they say that he is wrong, they are secta-
rians. They are not asked to pronounce their own
opinions erroneous. Their opinions are right for
them, and his opinions right for him. But they can-
not claim to determine what is right in the abstract,
independently of him or themselves ; for whatever is
right in the abstract, however determined, is binding
upon all men, and of course they have no right to de-
cide it. Their argument is tantamount to this, ‘I
sincerely believe, that I have a right to control the
consciences of men, and therefore I will assert it,
and act accordingly, for it is a violation of my Chris-
tian liberty, to prevent my acting according to my
belief.” This needs no refutation. In the narrow
little court of his own conscience, every individual
is Supreme Judge. The Theologians on all sides,
may argue the cause before him, and set forth their
opinions, their reasons and authorities. But after all,
he must decide for himself; and if he has any regard
for his rights or his liberty, he will let no one of
them all usurp his power. This is the only true or-
thodoxy, and I entertain no doubt, that it was the
orthodoxy of Thomas Hollis.
But it is further objected, that a part of the Profes-
sor’s salary is paid from the College funds. Now
how can this be otherwise f Since a century ago, the
35
College made a contract, that for the payment of a
certain sum of money, they would support such a
Professor for ever. If the interest of the sum thus
paid is sufficient for his support, it is very well; but
if not, the College must make up the difference, or
violate the contract. This always has been the case,
and always must be so, until we shall be willing to
infringe the obligation, or unable to fulfil it. Would
it be fair or just to take funds, given to us at the pre-
sent day for the extension and improvement of the
Theological Department, and apply them, not to this
purpose, but to that of relieving ourselves from the
burden of an obligation contracted by our own volun-
tary act, in the last century P
But there is a Theological School connected with
the College, and this school is said to be sectarian.
In what University of New England is not Theology
taught The College has always held funds, to aid
graduates in pursuing this study ; or at least for more
than a century; and the Hollis Professor was always
bound to give them instruction. In the year 1816, a
large sum was raised by subscription, to improve the
education in this Department. Nobody at that time,
suggested the idea of abolishing it. If it was worth
having, it was worth improving ; and the money was
accepted. It was to be appropriated to the use for
which it was given, by a Joint Board composed of the
Corporation and of five trustees, chosen by a Society,
consisting of the contributors to the fund. About eight
years afterwards, another sum was raised by subscrip-
tion, to erect a building, for the use of the students in
36
that Institution, and was so appropriated. At the same
time, it was agreed, that the Society of Contributors
to the Theological Fund, should appoint a Board of
Directors, who should regulate and oversee the Theo-
logical Seminary, under the obligation, of course, to
submit all their proceedings, according to the Consti-
tution of the College, to the revision of the President
and Fellows, who are responsible to the Overseers and
to the Public, for the management of every part of the
Institution, and cannot get rid of that responsibility if
they would. In this state, things continued till last
year, when the Trustees and Directors, entertaining
the opinion, that the public interest did not require
them to serve the College, in that capacity any longer,
communicated this opinion to the College Government.
What could be done or said P. They had served the
Public seven years, gratuitously, zealously, ably, suc-
cessfully ; and how could they be compelled to serve
it longer ? All that could be said, was, that we were
grateful for their services; and if any other eight gen-
tlemen will undertake the same labor, for the relief
and assistance of the College Government, it will no
doubt be equally grateful to them for their exertions.
Last year one of the Professors in the Theological
School resigned his office, and another was appointed
in his place. This opportunity was taken to alter the
Statutes or Regulations of the Department, and the
new Statutes were the subject of the discussion last
winter in the Board of Overseers. They had no
other object or effect than to determine the duties
of the different members of the Theological Faculty
37
within the Department itself, and to empower that
Faculty to regulate the Seminary under the control
of the Corporation ; except in providing, that the
duty of performing the usual services in the College
Chapel should now be assigned to the three Profes-
sors, and not as formerly to the Senior Professor
alone. The President is named head of the Theo-
logical Faculty ; but so he was in the original Stat-
utes, for which these were substituted. He was always
head of this, as well as of the Faculties of Law and
of Medicine, and of every other Department of the
College, for the plain reason, that it is his peculiar and
appropriate duty to see that the laws are executed in
them all.
But the College Government has sometimes been
blamed not for what it has done, but for what it has
omitted to do ; for not separating the Theological In-
stitution entirely from the College. Sir, I entered
the Corporation with the strongest conviction, that this
object was most important and desirable, perceiving
how much prejudice against the College was caused
by the union with it of the Theological Seminary, and
I sat down with a serious design to devise the means
of accomplishing it. But a difficulty met me in the
outset, which I never could surmount, and which still
seems to me insuperable. The funds were all ex-
pressly given and solemnly accepted for the purpose
of promoting Theological education in Harvard Uni-
versity. Not a dollar of them could be appropriated
otherwise consistently with the will of the donors, who
are so numerous, that it would be quite impossible to
38
procure their assent to a change of the appropriation ;
and many of whom, indeed, are dead. It may have
been unwise to contract this engagement. But since
it is contracted, neither wisdom nor honesty will per-
mit its violation. All that can be done, since the De-
partment must exist in the College, is to take care that
it be Orthodox, according to Hollis ; that the teach-
ers, while maintaining their own opinions, whatever
they may be, which it is clearly their right and their
duty to do, shall maintain them as arguments, not as de-
crees ; as opinions, not as a creed having authority. I
hope that they will do so, and will state fairly to their
pupils the tenets of other Christian sects, and inform
them in what works these several tenets are most ably
vindicated and maintained ; and tell them, after all,
that mone of these doctrines are obligatory, that none
of them are even right for him, who does not find
them according to his own light in the Scriptures. So
I hope, and so I believe.
But it has been asked, why not put a fair propor-
tion of Trinitarians into this school, and let each doc-
trine be defended by its friends P Sir, if there were a
vacancy in that school and the man best qualified to
fill it were a Trinitarian, provided that he were ortho-
dox also, according to my understanding of Orthodoxy,
I would vote for him to-morrow. But if he would go
there to maintain, that his opinions were right in the
abstract, and of course binding, and those of his col-
leagues abstractly and essentially wrong, and there-
fore inadmissible and dangerous ; and to convert a
Seminary, which ought to be a place of secluded and
39
diligent study, into an arena for Theological combats,
I would not enable him to accomplish this design.
The only Trinitarians, to whom I object as officers of
the Theological Seminary, are those, who are not in
this sense orthodox ; and to Unitarians not thus or-
thodox, I equally object.
The assertion, which has been made, that a portion
of the money paid by undergraduates for their educa”
tion, has been applied to the support of the Theologi-
cal Seminary, is not correct. It has been already
shown that the undergraduates do not pay nearly the
whole expense of their own education, and that
the deficiency in the salary of the Hollis Professor is
made up from the funds of the College by virtue of
the original contract. The whole amount paid to the
other officers in that Department is thirty-five hundred
dollars, while the net income of the funds belonging
to it, including the amount of the annual contribution
at the lowest rate yet received, and excluding the
Hollis fund, is stated to me from official sources at
thirty-eight hundred and ninety-six dollars.
It is objected that the preachers in the College
Chapel are Unitarians. But then no student is re-
quired to hear them. Every one may attend any
other church, which he or his parents prefer. Our
adversaries themselves admit the existing law to be
right in this respect ; but they still insist, that the old
law allowing the privilege of attending another church
to Episcopalians only, was most narrow and illiberal,
and evinces the sectarian spirit in which the College
Government is administered. This one word ‘Epis-
40
copalian,” is detected and seized on, and without the
least inquiry into the occasion or circumstances of its
use, we are instantly condemned ; and all who are not
Episcopalians are called on to resent the distinction as
injurious to themselves. Now the real truth is, that
when this law was passed, there were, as I am in-
formed, only two places of public worship in the vil-
lage of Cambridge ; one the church of Dr. Holmes, a
good Trinitarian, at which the students regularly at-
tended, and the other, the Episcopal church ; and
the law allowing those, who did not like to at-
tend Dr. Holmes, to attend the Episcopal church,
granted all, that could be granted. The legislators
did not think of enumerating all possible Christian
sects, and providing, that whenever any one of them
should erect a place of worship in Cambridge, the
students might attend there. And this is what is
called illiberality. Other churches are now erected,
and the students are allowed to attend any, which they
please. It is true, that the law was not altered, as
soon as a new meeting-house was built ; but I am not
aware, that any body asked for its alteration. There
could hardly be a motive for it, since the practice was
always more indulgent than the law. Any student
might always apply to the President, and if he could
satisfy him, that he had conscientious scruples, and
was not merely capricious, might have those scruples
gratified. It is not a great many years, since there
was a Jew in Harvard College, who was expressly
permitted to pass Saturday with friends of his own
faith in Boston, and to abstain from all Christian ex-
41
ercises on the following day. Catholics have been
there also, and they were allowed to attend the Cath-
olic church in Boston, on Sundays, and on all other
holydays, obligatory according to their religion, mu-
merous as they are, and they were excused from any
attendance in College on those days. I have heard of
a Sandemanian, too, who was expressly permitted to
worship no where, and to pass the Sabbath in his
father’s house, and all this under the old law. What
can we do, or what can we say, to secure ourselves
against such attacks as these ?
But it is alleged, that the prayers are made by the
Professors in Theology, and may pervert the minds of
the pupils. Surely, no one in New-England can con-
tend, that so large a family should not have any morn-
ing and evening prayers. It is true, that the Theologi-
cal Professors pray: but who else should pray f And,
after all, what is the objection to their prayers. The
Rev. Dr. Codman, who is incapable of perverting the
truth, for the benefit of any cause, states it distinctly
thus; ‘I do not pretend to say, that the officiating
Professors will introduce subjects of controversy into
their prayers; I believe them to be too wise, and
too serious. But if consistent with themselves, they
will certainly omit many things, which the children of
the orthodox part of the community have been accus-
tomed to hear from the lips of their pious parents, at
the domestic altar.” Now, Sir, what is this charge F
It is expressly admitted, that the prayers will contain
no matter of controversy ; nothing to startle the most
timid conscience. But then they will omit some pe-
6
42
culiar doctrines. The objection is, not that they con-
tain Sectarianism, but that they omit Sectarianism.
That is the charge, that is the sin, and that is the
truth.
It has also been asserted, that none but Unitarians
are ever appointed to office, in Harvard College, and
this assertion has been so often repeated without con-
tradiction, that it seems to be taken for granted that
it is true, and that men are appointed to office there
because they are Unitarians. Let us, at last, inquire
into the facts. On a recent occasion, when a gentle-
man whom the Corporation thought the best qualified
for an office in their gift, was asked if he would ac-
cept it in case of his election ; he expressed his willing-
ness to do so; but thought it fair to inform the Cor-
poration beforehand, (having, no doubt, heard all these
reports about its Sectarianism,) that he was not a
Unitarian but a Trinitarian. With this information
the Board proceeded to the election, and he was
chosen unanimously ; not for his Trinitarianism ; this
had no influence one way or the other ; but on ac-
count of his fitness for the office.
Since I began this letter, Sir, I have taken a list of
the College officers, and marked the names of all, who
have been appointed within ten years ; selecting that
period not with any reference to the result, but be-
cause I thought it long enough, and was persuaded
that nobody will hold us responsible for the sins of
our predecessors, generation before generation. There
is but one member of the Corporation, who has been
in it so long. I did not know to what religious sects
43
one half of the persons, whose names I noted down,
belonged, but sent to Cambridge to obtain information
on this point, and will now state to you the result of
my inquiry. Among these names are those of four
Professors, whose instructions are confined entirely to
graduates, and who receive nothing from the College
treasury, two in Law, and two in Divinity. The
reasons for not putting Trinitarians into the Theologi-
cal school, have been above considered, and besides
one of these two Professors was appointed by the
Founders of the Professorship themselves, who estab-
lished the office only on condition, that the present
incumbent should first hold it. The case is the same
with one of the Professors of Law ; he was appointed
by the Founder. The other was selected by the Cor-
poration, and my informant tells me now, though I did
not know it before, that he is a Unitarian. The only
permanent officers having any connexion with the un-
dergraduates, or receiving any pay from the treasury,
who have been chosen within that period, are the Presi-
dent, whom I consider orthodox according to Hollis,
though I do not mean to call him a Trinitarian ; and
the following persons ; the Librarian, the Steward,
the Janitor, the Professors of Chemistry, German, and
Latin, three Tutors, the Instructers, in French, Ital-
ian, and Elocution, the Curator of the Botanical Gar-
den, and assistant Steward, in all fourteen. Of these,
I understand, that three are Catholics, that one is of
the Evangelical reformed Lutheran Creed, one a Cal-
vinist, one a Sandemanian, that one attends the
Episcopal church, and one belongs to a family of
44
Quakers; eight in the whole ; and I suppose these
sects to be all Trinitarian. The other six, I am
told, are Unitarians. Besides these, the two per-
sons employed by the Treasurer and Secretary of the
College to keep their books, receive compensation for
their services. One of them is a Unitarian, and the
other a Calvinist. The three or four Proctors usually
there, are chosen from year to year, from among those
graduates, who are residing in Cambridge, and pursu-
ing the studies of their respective professions. It is
said that one of those now there is a Calvinist. If
they are in general Unitarians, which I presume to be
the case, there is this plain reason for it. They are
selected from among the graduates of Harvard, be-
cause these are best qualified for the office, and if the
Calvinists of the day will mot send their sons there,
how can we choose them f Let Calvinistic young
men go to Cambridge to be educated, and distinguish
themselves by their talents, and diligence, and good
conduct, and they will be promoted to office accord-
ing to their merits. Or if they are not, let them com-
plain as loudly as they please.
With regard to the distribution of College honors
and benefices among the students, there is not the
slightest suspicion in this vicinity, among those who
know any thing about the College, that it is influ-
enced in any manner whatever by any party feeling,
religious or political.”
* The effect, which these benefices or allowances to poor students
produce on the number of undergraduates, has already been alluded to,
page 8, and is strikingly evinced in the history of the College. There
45
But not a little noise has been made about the
Union of Church and State. The difficulty of an-
swering this charge arises from that of comprehending
its precise meaning. Does it mean that our Executive,
Legislative or Judicial Departments control the deci-
sions of any individual on religious subjects, or that
any religious sect or party, controls the decisions of
either of those departments on civil subjects? Can
any man in his senses assert this There was a time,
when Church and State were united in Massachusetts,
and it was the fault of the age, and not of the illustri-
ous men who lived in it. But that time has gone by,
and the Legislature will take good care that it shall
not return, at least in this generation.
The main business of the College in that day, was
to teach Theology, one particular modification of
Theology. In this enlightened age, a public educa-
tion embraces the whole circle of the sciences and the
liberal arts, and Theology forms only a very small
part of it. To let a jealousy, therefore, against the
manner, in which this one branch is taught, extend it-
self to all the others, and give rise to reproaches against
the whole Institution, is something less than candour
and even than justice. There is no fear that the
State will intermeddle with religious faith ; and I
were more students there in the ten years following 1813, than usual,
and as the same objections were urged against the College then as now,
the only reason that can be given for it, is that during that period, the
State granted to the College twenty-five hundred dollars a year for
the use of poor and meritorious students. When that grant ceased,
the number of students became somewhat less, but there has not been
at any time any gradual and continued declension in the number of the
undergraduates, as the enemies of the College so frequently assert.
46
believe that the great majority of Christians among
us, of every persuasion, and indeed, of every profession
and pursuit, are fully satisfied, that the days of Eccle-
siastical domination, whether over civil government or
private conscience, are ended, and that all religious
Instructers, who would maintain their proper dignity
or influence, must be content to teach and cease to
dictate.
But then it is objected, that the Executive and one
Branch of the Legislature, form part of a Board of
Overseers, for confirming or annulling the election of
Officers of the College, and other proceedings of the
Corporation. Now, one would think this must be a
security against sectarianism, instead of an encourage-
ment of it; unless these departments and the people,
who choose them, are themselves sectarians. And is
not something of the same kind done in relation to
Amherst P Are not some of the Trustees of that In-
stitution appointed by the two Branches of the Legisla-
ture; and this without objection ?
These appeals to the people, however, against the
influence of public officers, annually elected by the
people themselves, are not likely to produce much
effect; and it gives us some confidence in the good-
mess of our cause to find, that many of those, who are
most zealous in accusing the College of Sectarianism,
show what spirit they are of, by bringing the same
charge against the Legislature and the Judiciary of
the Commonwealth. • ,
But the complaint urged against Harvard with the
greatest zeal, and no doubt with the greatest sincerity,
47
is that it is not orthodoa: ; and this is probably the real
difficulty. The College is condemned, not because it
is in the hands of a Sect, but because it is not in the
hands of the right Sect. While it was Orthodox, in
the sense of those, who thus complain, all was just as
it should be, and it was the duty and the privilege of the
State to protect, and even to support it. But now, when
it is supposed to be under the influence of a different
Sect, now it is to be cut off and abandoned. Is not
this calling on the State to treat different Sects in
different manners, and introducing into religious sub-
jects that very Civil Power, whose interference in them
is professedly deprecated If it must be under the
control of some Sect, as they allege it must, (though
I know not why) it ought to be a matter of perfect
indifference to the State, as a Civil Power, which
Sect that is, and each Sect, as it happens to be in
possession of it, ought to be equally protected.
The State, however, ought not to give funds, it is
said, for the advancement of any one Religious party.
To this, I heartily agree, and I presume that whatever
the State shall give to the College, will be given in
such a manner, that it cannot be applied to the Theo-
logical Department. But we are told, that even those
funds, which have heretofore been given for the benefit
of the undergraduates alone, will be applied, or may
be applied, to the use of the graduates in this De-
partment. No doubt, Sir, these, or any other funds
may be misapplied, and used for purposes, to which
they cannot rightfully be appropriated. But the pos-
sibility of abuses can never be prevented. That they
48
will be thus misapplied, is a strong assertion. If there
is any reason for such an apprehension, it ought to
excite the strictest vigilance. When they are so
misapplied, or when there is any good ground for
suspecting it, let the abuse be ascertained, corrected,
and, if need be, punished by some competent legal
tribunal. Let the Supreme Judicial Court take up
the matter and decide it, as they decide other things,
upon distinct charge, proof and conviction, but do not
let us have sentence and execution without trial, hear-
ing and judgment, according to law.
And now, Sir, having taken some notice of all the
charges, which I have heard of against the College,
without knowing the sources of many of them, I
submit the charges and the answers to your candid
judgment. Let those, who think of crushing that
Institution, consider what it is. It is not the Officers,
high or low ; these are but its servants. The Young
|Men are the Institution. Let its enemies go and look
at them, and see if they have the heart to crush them.
And if they have the heart, let them see if they have
the power. No, Sir, they have it not. These are the
ornaments of Harvard, her jewels and her pride.
They are her support, also ; and they can support her,
and will support her, and the People of Massachu-
setts will support them, and their cause therefore will
assuredly triumph.
I have the honor to be, Sir, with the highest respect,
your most obedient servant,
º F. C. G. R. A. Y.
Boston, April 16, 1831.
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RIGHTS AND DUTIES
G F THE
IN RELATION TO THE
BOARD OF OVERSEERs.
CAMIBFID GE: -
MET CAL F AND COMPANY.,
PRINTERS TO THE UNIVERSITY,
--~ *

1856.
R E P () RT
ON THE
RIGHTS AND DUTIES
OF TELE
prisinthi im fillmus if mutum tiltſt
IN RELATION TO THE
BOARD OF OVERSEERs.
CAMIBFID G E :
M ET CAL F AND COMPANY.,
PRINTERS TO THE UNIVERSITY.
18 5 6.
R. E. P. O. R. T.
THE COMMITTEE APPOINTED TO CONFER WITH THAT APPOINTED
BY THE HONORABLE AND REVEREND THE BOARD OF OVERSEERS,
UNDER THEIR RESOLVE OF JANUARY 31ST, 1856, AND TO TAKE
INTO CONSIDERATION AND REPORT TO THIS BOARD THE NATURE
AND EXTENT OF THE RIGHTS AND POWERS CLAIMED BY THEMI,
AND OF THE CORRESPONDING DUTIES ANT) OBLIGATIONS OF THIS
BOARD, AND sucH otRER MATTERs EMBRACED IN THE REPORT
BY THE COMMITTEE OF THE Overs EERS TO THAT BOARD As
SHOULD BE THOUGHT PROPER, HAVING ATTENDED TO THAT DUTY,
RESPECTFULLY SUBMIT THE FOLLOWING REPORT:
THE Resolution of the Board of Overseers referred to
above, was in these words: “Resolved, That Hon. George
Morey, Hon. Samuel Hoar, Rev. George W. Blagden, and
Henry B. Wheelwright, Esq., be a committee to confer
with a like committee of the President and Fellows, and
agree upon such suitable Joint Rules as shall secure to the
two Boards, as far as it may be practicable, their respective
rights; — especially such Rules as shall regulate the inter-
course between them, and provide for the prompt transmis-
sion of all such Votes of the Corporation to the Overseers
as they may have a right to confirm or reject, revise or
take action upon, or of which it may be fit and proper that
they should have possession and official knowledge; and
said committees shall report the result of their conferences
and deliberations to their respective Boards.”
This Resolution, which was the only subject of official
4. INTRODUCTION.
communication to this Board, does not contemplate the
appointment of a joint committee of the two Boards for
the purpose of ascertaining their relative rights, powers,
duties, and obligations, but only one of conference, for the
establishment of joint rules for their preservation and en-
forcement as mutually recognized, and for regulating the
intercourse between the two Boards concerning them.
The circumstance that the Committee of the Board of
Overseers had made an elaborate Report to them upon the
nature and extent of those rights, powers, duties, and obli-
gations, without any reference whatever to this Board, or
any of its members, or any communication of their views
upon those subjects, and the provision that each commit-
tee should report to its own Board the result of their con-
ferences and deliberations, shows conclusively that any
such joint inquiry or adjustment by the two Boards was
not the purpose of the Resolution.
And your Committee were accordingly informed, at the
first interview, that any official communication of that Re-
port was purposely withheld, in the apprehension that, if
thus transmitted to this Board, it might have led to an
official reply, and an endless discussion might have been
invoked, which it was thought advisable to avoid.
Upon inquiry, however, by your Committee, into the
nature and extent of the rights claimed in behalf of the
Board of Overseers, they were informed that those asserted
in this Report were considered to be claimed and main-
tained by them by virtue of its acceptance; and were pro-
posed to be the subjects of the joint rules to be prepared
by the two committees; although it might be that, if the
Committee of the Overseers should be convinced that any
of them were not sustainable, the Overseers would proba-
bly, upon a report to that effect, adopt a corresponding
modification of their claims.
The first meeting of the two committees was held on the
twelfth day of April; but your Committee — being then
first informed of the nature of the rights claimed by the
INTRODUCTION. 5
Overseers, and of the corresponding obligations to which
the President and Fellows were invited to assent, and
which were proposed to be the subjects of the joint rules
which it was the only office of the two committees in joint
session to provide, and considering also the very grave im-
portance of them all, lying as they do at the foundation of
the constitution of the College, and what seemed the nov-
elty of some of them — were of course unprepared to act
upon the question of establishing any such joint rules,
without time for investigation into the proposed subjects
of them ; — an investigation which it was supposed might
necessarily require much time, it appearing that a period
of nine months had been taken for that which had result-
ed in the above-mentioned Report, on the same subjects,
adopted by the Board of Overseers.
Your Committee have not thought it worth their while
to inquire into the causes of this movement on the part of
the Board of Overseers, nor into the existence of any other
supposed grievances than those intimated in the Report of
their Committee, the nature of which will be presently con-
sidered. Nor are they aware of any difficulties or incon-
veniences which have recently been experienced in the in-
tercourse between the two Boards, requiring the establish-
ment of a code of laws for its regulation, which the expe-
rience of two centuries seems to show were not before
thought necessary. The College certainly never was in a
more prosperous condition; it has never, in any period of
its history, received more significant and gratifying proofs
of public confidence and liberality than during the last ten
years. Nor are the Committee aware of any complaint or
embarrassment in the action of the two Boards, excepting
in one instance, stated in the Report under consideration,
and insisted on in one previously made in relation to an
alleged irregularity, but which will be found in strict ac-
cordance with a general usage during the whole history of
the College, and thus to have received the repeated sanc-
tion of the Board now making the imputation.
6 INTRODUCTION.
The intercourse between the two Boards for two centu-
ries, with very few exceptions, has been eminently harmo-
nious and honorable to both; and perhaps the more so
from the absence of the desire on either side to enter into
sharp definitions of reciprocal rights and obligations, which
are rarely settled to mutual satisfaction by co-ordinate
branches of government.
The Committee in their Report (pp. 3, 4) say: “It is
somewhat remarkable, considering the various and im-
portant relations which exist between the Corporation and
the Overseers, that from the beginning down to the present
time, embracing a period of more than two centuries, not
a single question touching the relative powers, rights, and
duties of these two Boards has, so far as the Committee
can learn, been brought to a legal decision, or been sol-
emnly argued, or even presented by both parties in proper
form for argument and adjudication.””
Your Committee cannot forbear the remark, that, if such
be the history of the concurrent action of the two Boards
for two centuries, and under which the College has ad-
vanced to its present unsurpassed eminence in the United
States, and to the enjoyment of a degree of public confi-
dence and liberality greater in the last quarter of a century
than in any part of its previous history, it might lead its
friends to doubt the expediency of awakening a discussion
going to the foundation of all those relative powers, rights,
and duties, the effects of which, in the possible controver-
sies it may give birth to, and upon the position and char-
acter of the College, no one can foresee; and that they
think it proper thus to record the fact, that it is not of the
seeking of this Board, nor called for, as they believe, by
any of its proceedings. But these questions being thus
raised without the agency of this Board, its members can
have no unwillingness to enter upon the fullest examina-
tion of them, having no motives nor interests but for the
* The italicizing in this and subsequent citations, unless otherwise denoted,
is by the authors of the present Report.
INTRODUCTION. - 7
ascertainment of the truth, and the establishment of the
best interests of the College, the immediate administration
of whose affairs they have hitherto supposed was intrust-
ed to their care.
The Committee of the Overseers are pleased to admit
that “the Corporation is a very important body in the con-
stitution of the College, and has on many trying and diffi-
cult occasions during a period of two centuries been its
bulwark.” There is little reason to believe that such oc-
casions will ever cease; and it is only to be hoped that its
present and future members may continue to deserve the
commendation thus bestowed upon the past, whenever
any such may arise. Your Committee believe that the in-
vestigation thus called for by the Overseers must consti-
tute a most important event, if not a crisis in the history
of the College as deeply affecting its future welfare as any
that has ever occurred in it. And they hope that they
may be permitted, without disrespect to that honorable
Board, to express their regret that the rights now asserted
had not been made the subject of mutual investigation
and inquiry by both Boards, instead of being thus consti-
tuted a portion of its organic law by one of them only,
without reference to the other, and without, as the Com-
mittee are informed, any debate or deliberation by the
Board when adopting the Report.
But these rights being asserted, and now insisted upon,
by that Board, and the Corporation being called upon in
a manner that allows of no alternative but that of admis-
sion or denial of them, nothing remains but a faithful in-
quiry into their validity, to which your Committee now
humbly proceed. If, in the course of these remarks, they
should express themselves with any seemingly undue
earnestness or freedom, they trust that any such expres-
sions will be attributed to the sincerity of their convic-
tions, and their sense of the profound importance of the
subject, and not to any the slightest intended disrespect
to the Honorable the Board of Overseers, or the learned
S CLAINIS OF THE OVERSEERS.
Committee whose Report is thus inevitably brought un-
der review.
The first and most essential step in this inquiry, is to
ascertain and clearly define the nature and extent of the
rights claimed for the Overseers in the Report under con-
sideration.
These are nowhere distinctly set forth in precise articles
or descriptions, but are to be gathered from somewhat gen-
eral statements, and the collation of separate portions of
the Report. They are, however, as is believed, described
directly or incidentally with clearness and precision suffi-
cient to leave no material doubt concerning them.
And here it should be premised, that the actual mature
of any right claimed, and the extent to which, if existing,
it may be lawfully carried and maintained at the will of
the Overseers, is the only legitimate subject of inquiry;
and not how far they would probably, or might reasonably,
be expected to carry and maintain it; or how reasonable
or useful the possession or exercise of such a right might
be supposed to be in the particular cases or emergencies
that have been in the Report, or may be elsewhere, sug-
gested.
The rights claimed by the Overseers, and the correspond-
ing obligations insisted upon as incumbent on the Presi-
dent and Fellows, are understood to be as follows: —
1. As to Finances. That the Corporation should not
enter upon any unusual financial operation, such as the
disposing of real estate in whole or in part, or erecting a
new College hall, or chapel, or adopting any important
change respecting the College funds, before making known
their intentions to the Board of Overseers, so that they
may express their approval, or interpose their objections, if
they have any. And that this procedure is required by the
constitution of the College, and necessary to give to the
Overseers opportunity to exercise all the rights and powers
belonging to them. (Report, pp. 9, 10.)
CLAIMS OF THE OVERSEERS. 9
It is obvious, that, although the Committee seemingly
confine the claim of the Overseers to the control of the
finances of the College to cases of what they term unusual
financial operations, all those named by way of illustra-
tion are such as are necessarily within the Ordinary exer-
cise of the duties of any College Corporation intrusted
with its funds and the management of its affairs; and that
such right of control, if existing, necessarily embraces all
expenditures and investments of whatever nature. No line
of distinction or exception is suggested in the Report. But
it is manifest that, if this right belongs to the Overseers, it
must be founded in the legislative acts establishing the two
Boards, and there the distinction, if any such exists, can
be shown. It is assuming nothing to say, that none has
been or can be pointed out; and therefore that, if the au-
thority exists in the Overseers to exercise this control in
cases which they may from time to time be pleased to con-
sider unusual, it does so equally in all others.
2. As to Donations. That official notice should be
given to the Overseers by the Corporation of all gifts or
bequests to the College; and that when any one is upon a
particular condition, or accompanied by a special trust, the
vote of the acceptance of the Corporation is not sufficient
and complete until such vote is concurred in by the Over-
seers. (Rep. pp. 10, 11.) The Committee suggest a dis-
tinction between unconditional bequests or gifts and those
attended with any qualification or special trust, not indeed
as constituting any in the absolute right of the Overseers
to object to its acceptance in the one case more than in the
other, but merely as affecting the necessity of official notice
to them. And it is undeniable, that, if they have such
right in either case, they have it in both, for no such distinc-
tion can be found, or is pretended to exist, in the creation
of their powers upon the subject of donations, under the
Charters.
3. As to Appointments. That all appointments of in-
structors and officers of the College should be submitted to
2
10 CLAIMIS OF THE OVERSEERS,
the Overseers for confirmation; and that no such appoint-
ment takes effect until confirmation by them. (Rep. p. 14.)
4. As to Establishment of Professorships and other Offi-
ces. That when a new professorship or other office is
established, it is incumbent upon the Corporation to send
up the record of their action on the subject, and that the
Corporation should not proceed to an election to fill any
such professorship until its establishment shall have re-
ceived the approval of the Overseers. And the sending
up of such record, and the presenting of a vote appointing
some one to fill the office, at the same time, is denounced as
an irregularity of which the Corporation has been guilty, and
which the Committee trust will not be repeated. (Rep. p. 14.)
5. As to Tenures of Office. That as a general rule the
instructors or officers hold their offices during the pleasure
of both Boards, and may be removed by them. And it is
added, that, if by statute or vote a certain term or limited
period is presented for an incumbent to hold any office, it
is an irregularity for him to be permitted to remain in office
after such term has expired; or for an appointee of the
Corporation to continue as an instructor or officer after his
nomination has been rejected by the Overseers. (Rep. p. 15.)
6. As to Salaries. That the action of the Corporation
upon the subject of salaries of College officers or servants
is subject to approval or rejection by the Overseers as mat-
ter of confirmation or revision ; so that no establishment of
a salary can become of legal validity until thus confirmed,
or can continue so if disapproved of by them. And this,
the Committee say, may be regarded as a matter free from
all doubt. (Rep. pp. 15, 16, 17.)
7. As to the Salary of the Treasurer. That the present
salary of the Treasurer is an unsuitable one; and that, the
vote establishing it not having been confirmed by the Over-
seers, it is not lawfully payable. And the Committee add
the expression of their surprise to learn, that about Novem-
ber 27, 1852, the Corporation passed a vote directing a sal-
ary of fifteen hundred dollars to be paid to him. And fur-
CLAIMS OF THE OVERSEERS, 11
ther, that “it is difficult to comprehend for what reason
said order or vote was adopted.” (Rep. pp. 23, 24, 25, 26.)
From this statement of the claims of the Overseers, as
set forth in the Report, and presented by their Committee as
the subjects of the proposed joint rules, it is apparent that,
if these views are correct, they possess substantially the
whole control of the College, and have its management and
interests entirely in their hands and at their will; and that
the President and Fellows are nothing more than mere
trustees, to hold the legal title of its estates, with a power
of nomination to its offices, and of suggesting measures for
its government; — that they have no power to acquire, by
purchase, bequest, or gift, the most trifling amount of real
or personal property; to make any investment, or any con-
tract relating to the use, management, or investment of
any; to expend a farthing of its funds or income, or enter
into any agreement involving such expenditure; to make a
single appointment of any person to any office or service,
however menial; or do any act in its government, unless
the same be authorized by some precedent grant of au-
thority from the Overseers, express or implied, or be rati-
fied by their subsequent approbation.
And that such is not an exaggerated statement of the
necessary legal consequences of these alleged rights, if ac-
tually existing, is not only clear from the manner in which
they are stated in the Report, but also from the language
of the Committee, who, at the close, take care expressly to
represent the duties of the Corporation as confined to busi-
mess affairs, and the discharge of functions of an eacecutive
character; the italicizing being their own, seemingly for
the purpose of the more emphatic expression of this con-
clusion. (Rep. p. 26.)
If this be the truth, it is certainly of extreme importance
that it should be known, not only for the information of
the State, which has a very profound interest in the Col-
lege, as an institution to which it is greatly indebted for its
intellectual advancement and its high position, but also, and
12 CLAIMS OF THE OVERSEERS.
still more, for the information of those who may hereafter
incline to endow the College, and those who may be invited
to accept a trust presenting no inducements of public honor
or emolument, requiring great, and oftentimes most incon-
venient, expenditures of time and labor, attended not infre-
quently with painful and embarrassing perplexities, – a
trust, moreover, exposing those who undertake it to injurious
imputations and reproaches in public and in private, without
having an opportunity of defence, and which no devotion to
its service, however disinterested and earnest, and no pros-
perity of the institution, however manifest or unexampled,
can prevent or modify, - placing them in agitating conflicts
with those in high places for the preservation of its legal
immunities, and leaving them wholly without other reward
than the consciousness of duty faithfully attempted, though
in efforts wholly unappreciated, and the gratifying evidence
of the prosperity of the subject of their charge.
If to these considerations are to be added those of being
held as the mere bailiffs of estates, substantially belonging
to the Overseers, which can neither be acquired nor dis-
posed of without their consent, and being accounted only
as their servants in the administration of the “business
affairs” of the College, with no power to act in any mat-
ter but at their bidding or by their permission, the induce-
ments to assume the trust may be hereafter perhaps con-
sidered of less account than they hitherto have been, ex-
cepting to those who may anticipate personal advancement
to themselves or their friends in taking upon themselves
the office.
In thus exhibiting the true nature and consequences of
the rights claimed by the Overseers, if susceptible of estab-
lishment, your Committee have no design to imply or inti-
mate that any disposition on their part exists, or is at pres-
ent to be apprehended, for the assertion and enforcement
of them in the extreme manner suggested, or injuriously to
the interests of the College as they understand those inter-
ests. But they will not be guilty of the affectation of con-
CONSTRUCTION OF THE CHARTERS. 13
cealing their belief, nor of unworthy timidity in withhold-
ing the expression of it, that the time, under less favorable
circumstances, may arrive, when it might be hazardous to
the best interests of the College, if not to the purposes of its
foundation, to have this unlimited power placed in the
hands of any public body, the most influential members of
which are in great part appointed at political elections, or
by those deriving authority under them. No American
citizen needs to be informed of the lengths to which the
most honest and seemingly sincere men may be urged by
political excitements in this country; and no one would
wish to place within possible reach of their vortex any in-
stitution of public education and charity, if any alternative
could be found. Under these circumstances, it becomes
the imperative duty of this Board not to acquiesce in the
claims thus made by the Board of Overseers, unless they
can be maintained upon strictly legal foundations; while
at the same time it is no less its duty frankly and cheer-
fully to acquiesce in all which may be found to be thus
established. The Committee proceed, therefore, to lay be-
fore the Board the result of their investigations.
The two sources of information, by recourse to which
these questions must be settled, are the Legislative Acts
establishing the two Boards, and the history of the pro-
ceedings of the two Boards under those Acts.
An interesting and perhaps somewhat difficult question
may exist as to the existence of any visitatorial power over
the College existing in the State, beyond that which it has
over all eleemosynary institutions, to secure the faithful ad-
ministration of their funds and estates, for the purposes of
their creation, through the instrumentality of its legal offi-
cers and judicial tribunals. But it is quite manifest that
as this power, wherever existing, arises wholly from the
grant of the property to be administered, and pertains only
to the founder, or those to whom he has delegated it; and
as the Overseers can in no sense be accounted the found-
14 CONSTRUCTION OF THE CHARTERS.
ers of the College, and therefore, if they have any visitato-
rial powers, can have none beyond those delegated by the
legislative acts relating to them and the charter of the Col-
lege, the inquiry concerning the existence of the rights
claimed must be confined to these acts and charters in the
first instance, and the subsequent history of the College, as
confirmatory or explanatory of them.
It is plain, however, that such history can only be avail-
able as an aid in the construction of the acts and charters
in matters where they are equivocal or silent; and that no
practice or mode of procedure, of however long continu-
ance, can be of any avail to control or alter the express or
plain provisions of the charter, or to operate as an aban-
donment of any right clearly vested by it. This point is
fully conceded, or rather very emphatically asserted, by the
Committee in their Report (p. 17), and is undoubtedly a
sound canon of construction. -
But although these legislative enactments are the only
sources of the “relative powers, duties, and responsibilities
of the Corporation and Overseers of Harvard College,”
which the Report under consideration purports to exhibit
and establish, that document contains no allusion to the
particular provisions of the act establishing the Board of
Overseers, nor any reference to its contents other than the
general remark, that “in the year 1642 the first Act was
passed creating a government over this Seminary at Cam-
bridge,” and the setting forth the description of persons who
were to compose the Board.” But it seems difficult to
account for some of the positions taken in the Report,
otherwise than upon the assumption that the Committee
considered that Act a grant of the entire government of the
College, both legislative and executive, and as vesting uni-
versal power and authority over it, which is still existing,
excepting as modified by the charter. It is manifest, how-
ever, that this Act gave to them only certain limited powers
* See Appendix, No. I.
CONSTRUCTION OF THE CHARTERS. 15
precisely specified; and that the nature of them, and the
omission of all others, are elements material to be consid-
ered in attempts to ascertain with accuracy the “relative
powers, duties, and responsibilities” of the two Boards.
The powers thus vested in them were those of making
and establishing orders, statutes, and constitutions for the
instituting, guiding, and furthering of the College and its
members in piety, morality, and learning, provided that
upon complaint they should repeal the same, if found inju-
rious to the College or any member thereof, or to the pub-
lic weal, or stand accountable thereof to the meat General
Court; and of dispensing, ordering, and managing to their
use all gifts, legacies, bequeaths, revenues, lands, and dona-
tions. And these are all that were thus given to them.
They were not empowered to make any appointment of
the President or of any other officers, nor to receive or ac-
quire, by purchase or gift, any estates, real or personal, with
or without condition ; nor to execute any orders or laws;
nor to administer or interfere with the discipline or instruc-
tion of the College, excepting by the precedent establish-
ment of orders, statutes, and constitutions for that purpose.
The power of appointing to office remained in the Legis-
lature, as also that of acquiring or receiving estates for its
use, as is virtually conceded in the Report (p. 5); and the
execution of the laws and course of discipline and instruc-
tion were in the hands of the officers, subject only to legis-
lative control.
If any doubt could be raised of the soundness of this
construction, by reason of the use of the word “orders,” as
susceptible of an interpretation embracing appointments to
office, and especial directions in particular cases, and acts
of discipline, or of other interference in the management of
College affairs, a moment's examination would dispel it.
The connection in which this word is used with “statutes
and constitutions,” in the first instance, and the subsequent
provision for the repeal of such orders, and the extravagant
latitude of construction requisite for embracing appoint-
16 CONSTRUCTION OF THE CHARTERS.
ments to office and acquisitions of estates in such use of
the term in such connection, and the subsequent employ-
ment of it in the Charter of 1650, where it is used as iden-
tically synonymous with rules, or by-laws, and is believed
to admit of no other construction, and the like use in the
Appendix, must, it is believed, entirely dispose of any such
question. The Overseers, therefore, by virtue of the act
creating that Board, had only the power of enacting laws
for the government of the College, and of administering its
finances. They had no power of appointment to office;
no right to receive, acquire, or hold any estates, real or per-
sonal; no right to execute laws, or administer discipline;
were not trustees, even, in any true sense of the term ; and
were under no legal responsibilities for the use of property
given for the College, the legal title to which remained in
the Colonial government, and whose only power to pre-
vent abuses in the administration of it was by withdraw-
ing possession from them, or by discontinuing the Board.
They were, therefore, merely quasi governors, appointed
by the Colonial government over a College which, with all
its estates, belonged exclusively to the Colony.
By the Charter of 1650° the exercise of all these powers
was vested primarily in the Corporation; and to that ex-
tent the grant of them to the Overseers was repealed and
annulled; and they therefore retained or acquired only such
as those enactments reserved, or vested in them.
As the argument in behalf of the claims made by the
Overseers seems founded wholly upon the provision of this
Charter, and of the enactment in 1657 called the Appendix, f
a preliminary exposition of these Acts, and of what is be-
lieved to be the true meaning of their terms and provisions,
will aid in the inquiry, how far they tend to sustain or dis-
prove the validity of the claims under consideration. And
this is deemed the more material, as it is feared that the
mode of citation and reference, and of juxtaposition, adopt-
* Appendix, No. II. f Appendix, No. III.
CONSTRUCTION OF THE CHARTERS. 17
ed by the Committee of the Overseers, may lead to misap-
prehensions, which it is impossible to suppose could have
been intended or foreseen.
In this exposition the copies as printed in President
Quincy's History of the College are adopted. And the
divisions made by periods in the Charter will be denomi-
nated Clauses, for convenience of numbering and reference,
and because of the obvious propriety of their being consid-
ered as thus distinctively and separately distinguished from
others in the context, where that consideration becomes of
any importance.
The Charter of 1650 commences with a preamble, merely
setting forth the fact that the College had become the re-
cipient of estates and gifts bestowed for its benefit, and
that the minds of many were stirred up to like benevo-
lence; thus impliedly presenting the necessity of an incor-
porated body for their reception and management, for the
purposes of the institution.
The first clause incorporates several persons, therein
named, to be a Corporation by the name of the President
and Fellows of Harvard College, specifying their respective
offices, to constitute the first Board; with a provision for
the election by themselves of their successors, by the pres-
ence and consent of the Overseers, in perpetual succession ;
giving to the Corporation thus formed power “to purchase
and acquire unto themselves, or take and receive upon free
gift and donation, any lands, tenements, or hereditaments
within the jurisdiction of Massachusetts, not exceeding five
hundred pounds per annum, and any goods and sums of
money whatsoever, to the use and behoof of the said Presi-
dent, Fellows, and scholars of said College, and to sue and
plead or be sued and impleaded by the name aforesaid, in
all courts of judicature within that jurisdiction.”
The second clause gives to the President and any three
of the Fellows power to appoint a seal for the Corpora-
tion. -
The third authorizes “the President and Fellows, or
3
18 CONSTRUCTION OF THE CHARTERS.
major part of them, from time to time to meet and choose
such officers and servants for the College, and make such
allowance to them, and them also to remove, and after
death or removal to choose such others, and to make from
time to time such orders and by-laws for the better order-
.ing and carrying on of the work of the College, as they
shall think fit: provided the said orders be allowed by the
Overseers.” -
The fourth provides “that the President and Fellows, or
major part of them, with the Treasurer, shall have power
to make conclusive bargains for lands and tenements, to
be purchased by the said Corporation for valuable consid-
erations.”
The fifth is in these words: “And for the better order-
ing of the government of the said College and Corporation,
be it enacted, by the authority aforesaid, that the President
and three more of the Fellows shall and may from time to
time, upon due warning or notice given by the President
to the rest, hold a meeting for the debating and concluding
of affairs concerning the profits and revenues of any lands,
and disposing of their goods (provided that all the said dis-
posings be according to the will of the donors); and for
direction in all emergent occasions; execution of all Orders
and by-laws; and for the procuring of a general meeting of
all the Overseers and Society in great and difficult cases;
and in case of non-agreement; in all which cases aforesaid,
the conclusion shall be made by the major part, the said
President having a casting voice, the Overseers consenting
thereunto; — and that all the aforesaid transactions shall
tend to and for the use and behoof of the President and Fel-
lows, scholars, and officers of the said College,” &c.
The sixth provides that all estates of the College, not
exceeding the value of five hundred pounds per annum,
should be exempted from taxation.
And the seventh, that the President, Fellows, and schol-
ars, together with the servants and other necessary officers
to the said President or College appertaining, not exceed-
CONSTRUCTION OF THE CHARTERS. 19
ten, to wit, three to the President and seven to the Col-
lege belonging, shall be exempted from civil office and
military exercises; and such of their estates not exceeding
one hundred pounds a man shall be exempted from all
taxes and rates. -
From this full summary of the contents of the Charter,
in its own language, it is obviously divisible into three
distinct parts or sections: —
The first, consisting of the first four clauses, containing
the incorporation, and a statement of its object, and vest-
ing in the Board thus created certain carefully defined
powers necessary for their accomplishment.
The second, consisting of the fifth clause, regulating its
mode of action in the exercise of those powers, and enabling
it to avail itself of the counsel and aid of the Overseers
when desired.
And the third, embracing the sixth and seventh, providing
for the exemption of the estates of the College from taxa-
tion, and of members of the Corporation and certain offi-
cers of the College from civil and military service, and their
estates, to a certain extent, also from taxation.
The powers granted to the Corporation, — of acquiring
by gift or purchase, and of holding, real and personal estates
not exceeding in value the amount prescribed ; to institute
and defend suits; to appoint a seal; to appoint officers and
servants; to appoint their salaries or allowances; to re-
move them and appoint others in their stead; to make bar-
gains for lands and tenements for the use of the College;
to conclude affairs concerning the profits and revenues of
its estates, real and personal; to provide for all unexpected
emergencies; to execute all orders and by-laws; and to
call meetings of the Board of Overseers when it should
think proper, in great and difficult cases and cases of non-
agreement, — were unlimited, and without any right of in-
terference or control on the part of the Overseers; and with
no accountability to them; and no responsibility to any
other person, or body, excepting that existing by law be-
20 CONSTRUCTION OF THE CHARTERS.
tween all eleemosynary corporations and the government
creating them, by which the latter has the unquestionable
right of supervision and interference, by the agency of its
judicial tribunals, to see to and enforce the faithful admin-
istration of the trusts for which they are established.
While to the Board of Overseers were reserved the high-
ly important and responsible powers of negativing the elec-
tion of officers and members of the Corporation; of dis-
senting to and rendering invalid any orders and by-laws
enacted by the Corporation for the better ordering and car-
rying on of the work of the College; and of finally deciding
upon all great and difficult cases, and cases of non-agree-
ment, when called upon by the Corporation for aid and
counsel.
As above shown, the Overseers, by the act creating their
Board, had no other powers than those of enacting orders
and by-laws, and administering the finances of the College;
both of which were expressly conferred upon the Corpora-
tion, and therefore by necessity taken from them; they
could make no pretence to any general visitatorial power
or control, and clearly none such was given by this charter.
Such your Committee believe to be the true construction
of this instrument, which, although seemingly somewhat
obscure upon first perusal, on a careful examination pre-
sents, as they think, no serious difficulties of interpretation.
Such, they would have said, is its clear and unquestion-
able legal meaning, were it not for the highly respectable
authority by which this seems to be denied, and by which
a contrary doctrine is attempted to be established, the
grounds of which your Committee now proceed respectfully
to examine. In doing so, however, they are somewhat
embarrassed by inability to understand, from the Report to
the Overseers, the precise clauses or provisions of the char-
ter upon which it is intended to base the claims under con-
sideration, excepting those of control over appointments
and salaries, which seem to be rested entirely upon the
third clause above cited (pp. 17, 18). And as this and the
CONSTRUCTION OF THE CHARTERS. 21
fifth clause are those alone upon which any such preten-
sions can, as your Committee understand, be founded, it
may be well to endeavor to ascertain their true construc-
tion before advancing to the consideration of the doctrine
which they are relied upon to support.
The very precise language of the third clause, consti-
tuting in itself a period, and intervening between two other
periods, each vesting in the Corporation an important and
wholly independent power, in neither of which is any such
right of control given to the Overseers, seems to your Com-
mittee to admit but of one rational and consistent con-
struction,-- so far as the consent of the Overseers may be
supposed to be essential to the validity of any corporate act.
This construction is, that such consent is thereby made es-
sential only to the provision contained in that clause; and
cannot be, by any reasonable interpretation, extended back
so as to embrace acquisitions of estates, real or personal, by
gift or purchase, or the power of instituting or defending
suits, or the appointment of a seal; nor be extended forward
to comprehend bargains for lands and tenements; or be in
any wise made to reach to the administration of the Col-
lege finances. Nor is there anything in the Report to the
Overseers indicating that any such idea was entertained by
their Committee.
Assuming, then, that the application of the words “pro-
vided the said orders be allowed by the Overseers,” is to be
confined to the third clause, the only inquiry is, what is
meant by the word “orders”; — whether it is to be taken
as embracing appointments and removals of officers and
servants, and the making of allowances to them, as well as
orders and by-laws for the better Ordering and carrying on
of the work of the College, or is to be confined to such or-
ders and by-laws. -
And your Committee find it difficult to believe that a
doubt could arise, if the construction of the Charter were
now for the first time presented for consideration, unem-
barrassed by any preconceived opinions or prejudices, or
22 CONSTRUCTION OF THE CHARTERS.
any acts of the two Boards which may be supposed to call
for the extending of the application of that word to all the
previous subjects of this clause. It seems to them to be as
clear as language can make it, that the word “orders” in
the proviso has the same meaning that it has in the preced-
ing portion of this clause. It surely cannot be pretended,
that, when first employed, it means appointments to office
or removals from it, or the establishment of salaries and
allowances. It was certainly then used to express some
other, further, and different act. And by what rule of con-
struction can it be forced in the proviso to embrace im-
portant subjects not then included ? But if doubt could
otherwise rest upon it, all such must be removed when it
is observed that the orders spoken of in the proviso are
expressly declared to be the same as those previously men-
tioned; they are particularly described as “the SAID or-
ders.”
It is clearly thus used as synonymous with rules or
statutes, as is constantly done in common parlance; and
is not wholly expletive, as it may embrace statutes and
rules, as well as by-laws technically so called, which might
not otherwise be considered as included. And that such
was the use intended is further most manifest, because if it
were not, then it must have been used as descriptive of
something else, and then no authority is given to the Over-
seers to disallow by-laws, for they are not in terms in-
cluded in this proviso; either, therefore, they must be em-
braced in this word “orders,” or the Overseers have no
authority over them.
A further proof from the context of the Charter, if further
could be desirable, is found in the fifth clause, whereby
the President and Fellows are authorized to hold meetings
“ for the execution of all orders and by-laws” (p. 18).
These must of course be the same orders and by-laws men-
tioned in the third clause, for the President and Fellows
could have no right to execute any others; and how are
they to meet for the execution of orders and by-laws which
CONSTRUCTION OF THE CHARTERS. 23
had never been passed, and had no existence? or by what
force of construction could the appointment and removal of
officers and allowance of salaries be denominated eacecu-
tions of orders and by-laws 2
Your Committee forbear further comment, excepting an
allusion to the incredibility, that, if it were intended to sub-
mit to the control of the Overseers subjects so important as
that of the appointment of officers and the allowance of
salaries, to the extent in which the Committee of the Over-
seers understand the power given in this clause, it should
have been left to such doubtful interpretation by the use of
the word “orders” only in the proviso, - so entirely inapt
to convey any clear or certain allusion to them, when the
employment of direct and fitting terms would have been so
matural and easy, not to say so unavoidable.
Believing it therefore clear, that the third clause gives to
the Overseers no other power than that of affirming or dis-
affirming the orders and by-laws enacted by the Corpora-
tion, that is, all rules, statutes, and regulations, as indeed
the word “orders” in its strict sense denotes, – including
a wider range than the term “by-laws,” which, however, it
also embraces, – your Committee proceed to ascertain the
true construction of the fifth clause.
In the consideration of this clause, the question is, to
what cases the words, “in all which cases aforesaid, the
conclusion shall be made by the major part, the said Presi-
dent having a casting voice, the Overseers consenting
thereto,” were intended to apply; — whether to all cases of
exercise of the powers previously given to the Corporation,
or to all those enumerated in this fifth clause, or to the
great and difficult cases, and cases of non-agreement, stated
in the immediately preceding sentences.
This clause, as has been suggested, is believed to have
been intended only to regulate the mode of action of the
Corporation in the exercise of the powers previously grant-
ed, and to enable it to avail itself of the counsel and aid
of the Board of Overseers in the administering of affairs of
24 CONSTRUCTION OF THE CHARTERS.
magnitude and difficulty, rendering such counsel and aid
desirable.
There can be no doubt that all the powers ever exercised
or claimed by the Corporation, excepting that of calling
meetings of the Overseers for that purpose, were fully and
effectively conferred upon it by the previous provisions of
the Charter without the aid of this fifth clause. The power
to receive estates by gift or purchase, “to the use and be-
hoof of the President and Fellows of said College,” legally
and necessarily implies the power to manage such estates, to
make investments, and to appropriate the income and reve-
nues accruing therefrom to their benefit. The power to enact
orders and by-laws necessarily and legally implies that of
executing them, when, as in this case, the legislative and ex-
ecutive powers are vested in the same persons. The power
of direction in all emergent occasions is necessarily and es-
sentially incident by law to all persons and corporations, as
an elementary right of self-preservation. Also the manner
of calling meetings of the Board, and the giving of peculiar
authority to the vote of the President, might have been left
as proper subjects for orders or by-laws, and required no
new gift of power for these purposes. But it was reason-
able, and in ancient charters usual, for the Legislature to
prescribe the mode of calling meetings; and fitting thus to
secure the preponderance of the President's voice in de-
batable matters. Moreover, no order or by-law could have
been enacted giving to the Corporation the right to call a
meeting of the Overseers for the purpose of obtaining their
counsel and advice. This additional power was therefore
here granted; but it is to be observed, that it is one solely
for the purpose of enabling the Corporation to obtain aid
in exercise of the powers previously granted, and not of
vesting in them any new authority, to be primarily exer-
cised for any other object.
It is then to the first four clauses that we are to look for
definitions of the powers granted, and the limitations in-
tended to be imposed upon them. And in so doing we
wº
CONSTRUCTION OF THE CHARTERS. 25
find all of them accurately defined, and an express limita-
tion carefully impressed upon two of them; namely, that of
electing officers and members of the Board, and that of
enacting orders and by-laws, – each being made expressly
and individually subject for the validity of its exercise to
the consent of the Board of Overseers. And it is certainly
very remarkable, that, if the like limitation were intended
to be imposed upon the exercise of all, or of any, of the other
powers granted, it should not have been thus distinctly
prescribed; and that, while these two were thus conspicu-
ously distinguished from the rest by this limitation attached
to each separately, the rest were left to the uncertain in-
ferential application of another remote provision in a sub-
sequent clause, clearly intended for purposes very different
from that of definitions of the powers granted.
Again, in order to make these words, “the Overseers
consenting thereunto,” in the fifth clause, applicable to the
acquisition of estates by donation and purchase, to invest-
ments, and financial operations other than those concerning
income and revenues, and to appointments, it is neces-
sary to carry back their operation, not only to all the acts
mentioned in this clause, consisting of a distinct paragraph
and period for purposes obviously peculiar to itself, but to
all the provisions in the preceding clauses, including those
to which the same limitation was severally and specifically
attached; for none of these subjects can be pretended to
be embraced in the fifth clause. And by the same reason-
ing, they must relate to the right of appointing a seal, and
of suing and defending suits, – so that neither of those
acts could be done without the previous consent of the
Overseers, or be valid without their subsequent ratifica-
tion; — a violence of construction which your Committee
believe would be equally unparalleled in legal experience
and rational criticism. Can it be for a moment seriously
argued, that the Corporation, the sole legal owner of all
the estates of the College and administrator of its rev-
enues, cannot institute or defend a suit for their recovery
4.
º
26 CONSTRUCTION OF THE CHARTERS.
or protection, without the consent or approbation of the
Overseers ? or that the latter may abate such prosecution
or defence, or compel its abandonment, at their pleasure ?
But this consequence would as inevitably follow from this
construction, as would that of controlling the right of the
Corporation to accept donations, to negotiate purchases or
sales, to make investments other than of income, or to make
appointments to offices of instruction or government.
But your Committee forbear to dwell longer upon such
a question, not only because they cannot persuade them-
selves that it merits further discussion, but because they
believe that, upon a careful consideration of this fifth clause,
it is clear, beyond reasonable doubt, that the words “the
Overseers consenting thereto,” as used in it, have no retro-
spective operation beyond the provisions immediately pre-
ceding them, - for the decision of great and difficult cases,
and cases of non-agreement of the Corporators, – when
the Overseers may be called upon to aid in and finally
determine such decision. All the other powers vested in
the Corporation, or necessary for the administration of
College affairs, had been given, as above shown, in the
preceding clauses; and those to the effective exercise of
which the consent of the Overseers was intended to be
made necessary, were each distinctly and expressly made
subject to it; and these words were here introduced for
the sole purpose of defining the manner in which great
and difficult cases, or cases of non-agreement, arising in
the deliberations of the Corporation, should be decided
upon appeal to the Overseers; their consent being thus
made essential to the conclusion to which it was to re-
late, so that such conclusion would be of no validity with-
out it.
That these words could not have been intended to have
any further operation, is manifest from the nature of the
preceding provisions in the first four clauses, and still more
strikingly so from those preceding in this fifth clause. It
would be practically absurd to make the legal validity of
STRUCTION of THE CHARTERs. 27
every contract in the management of real estate, for hiring,
leasing, repairing, insuring, and improving the same; of the
expenditure, appropriation, or investment of every dollar of
personal estate, and of the profit and revenues of lands and
tenements; of the appropriation of all donations of personal
estate; and of every contract with every officer, artificer,
menial, servant, and laborer, involving the expenditure of a
dime, – dependent upon the previous consent or subsequent
approbation of the Overseers. It would be obviously im-
possible to make the binding force of all directions given
by the Corporation in difficult and sudden emergencies, or,
as they are denominated in the Charter, “emergent occa-
sions,” dependent upon such consent, which might not, and
probably could not, be obtainable until long after the occa-
sion had passed. It would be equally absurd, if not more
so, to make the execution of the orders and by-laws, which
had been already previously established by the approbation
of the Overseers, dependent for its propriety and legal effect
upon their subsequent consent; and especially when, as
must often happen, the instant and effective and final exe-
cution of them would be demanded by their nature and
objects, in order to protect the College from the ruinous
consequences of lawless violence or misconduct. It would
be, if possible, still more absurd, and certainly not less im-
practicable and inconsistent, to make the consent of the
Board of Overseers necessary to give validity to a call made
wpon them by the Corporation to hold a meeting for aid
and counsel in great and difficult cases, and cases of non-
agreement, to which aid and counsel they are by this clause
entitled.
But all these absurdities and unreasonable consequences,
with the others above alluded to, must follow, if the words
“the Overseers consenting thereto,” in this fifth clause, are
to be construed as extending farther back than to the pro-
visions immediately preceding them, relating to “great
and difficult cases, or cases of non-agreement,” and as ap-
plying to its previous provisions. Whereas, if confined to
28 CONSTRUCTION OF THE CHARTERS.
them, there is not only no absurdity, impracticability, or in-
consistency involved, but the interpretation of the whole
clause becomes simple, intelligible, and consistent with the
most rigid rules of critical analysis and construction. And
the circumstance that the Corporation is thus clothed with
especial authority, in this formal manner, to call meetings
of the Overseers to settle great and difficult cases, and cases
of non-agreement, is of itself evidence that it was in such
cases only that their decision was to be held necessary.
Why give this particular power in these specified cases, if
it was intended that the Overseers should be called upon
to authorize or ratify, in all cases relating to the same sub-
ject, the proceedings of the Corporation ?
Your Committee therefore respectfully but confidently
submit, that, upon the legal construction of the Charter of
1650, the only acts of the Corporation to which the assent
of the Board of Overseers was made essential, in order to
give them permanent validity, were those of the election of
officers and members of the Corporation; of enacting or-
ders and by-laws, - which they understand to embrace all
rules, statutes, and Organic laws affecting the College gov-
ernment, or any department of it; and of deciding all great
and difficult cases and cases of non-agreement presented
for their decision at meetings of their Board called by the
Corporation for that purpose.
It remains to consider what changes were made in these
powers of the Overseers by the subsequent enactment of
1657, styled the Appendix. -
1. That statute provides “that the Corporation shall
have power from time to time to make such orders and by-
laws, for the better ordering and carrying on of the work of
the College, as they shall see cause, without dependence
upon the consent of the Overseers foregoing : provided,
always, that the Corporation shall be responsible unto, and
those orders and by-laws shall be alterable by, the Over-
seers, according to their discretion.”
2. And “that, when the Corporation shall hold a meet-
CoNSTRUCTION OF THE CHARTERs. - 29
ing for agreeing with College servants, for making of or-
ders and by-laws, for debating affairs concerning the profits
and revenues of any lands or gifts, and the disposing there-
of (provided that all the said disposals be according to the
will of the donors), for managing of all emergent occasions,
for the procuring of a general meeting of the Overseers and
Society in great and difficult cases, and cases of non-agree-
ment, and for all other College affairs to them pertaining,
in all these cases the conclusion shall be valid, being made
by the major part of the Corporation, the President having
a casting vote. Provided always, that in these things also
they be responsible to the Overseers as aforesaid.”
3. It prescribes the mode of calling meetings of the Board.
Your Committee concur in the opinion expressed by the
Committee of the Overseers (Rep. p. 16), “that the main,
indeed almost the only object of the said Appendix, was to
enable the Corporation to adopt votes and orders, which
would become valid without the (previous) confirmation
thereof by the Overseers.” By the Charter, no order or by-
law, or decision of a difficult case or case of non-agreement,
calling for the advisory aid of the Overseers, could be valid,
or of legal obligation, until their consent should have been
given. It was plainly the purpose of this enactment to
obviate those difficulties; and although the general lan-
guage employed, declaring the Corporation to be responsi-
ble to the Overseers, might alone, or in other connections,
be held to have a broader meaning, and to extend their
authority so as to embrace a general visitatorial power, the
limitations implied by the context conferring that respon-
sibility, and the reasons before given in discussing the
fifth section of the Charter, are entirely satisfactory to your
Committee, that no intention existed by this act to en-
large the powers of the Overseers. They are confirmed in
this view by the consideration that it is never mentioned,
as they believe, in any subsequent record of the doings of
either Board, nor in any of the legislative enactments con-
cerning the College, excepting in one instance of a refer-
30 - PRACTICE UNIDER THE CHARTERS.
ence to it by the Corporation, in a vote of July 20, 1722,
relating to an order or by-law, and in one by the Overseers
in December, 1778, relating to appointments.
It is not referred to in the charters subsequently proposed
where that of 1650 is recited, nor in the act of 1707, de-
claring the original Charter to be still valid, and not to
have been repealed or annulled, as it certainly would have
been if considered as containing a grant of essential powers
not conferred by that Charter. Nor are the important sub-
jects of appointments, acceptance of donations, and pur-
chases of real and personal estate, or investments other than
of income and profits, enumerated, as they certainly would
have been if any increase of power was intended to be there-
by given concerning them. It is indeed nowhere specifically
relied upon by the Committee of the Overseers as a source
of any new powers, or of the extension of former ones, but
only as exchanging the right of confirmation for that of re-
vision. (Rep. pp. 8, 16.)
In recurring to the second source of inquiry, - the His-
tory of the College, – it will be found far less satisfactory
upon some of the matters under consideration than perhaps
might have been anticipated ; and is for several reasons
less instructive than might be desired.
The entire dependence of the College upon annual
grants of the Legislature for the support of the President,
and, at times, of other of its officers, for a century and a
quarter; the great personal influence of the members of the
Board of Overseers during the Colonial and Provincial pe-
riods, composed as it was of the ruling magistrates and
the clergy, whose authority in secular as well as in relig-
ious matters was little short of supreme; and the circum-
stance that the Charter was supposed to have been repealed
with the Colonial Charter in 1684, and that the College
was considered to be without one, and was under the man-
agement and control of the executive government from
that time until the confirmation of the original one in 1707;
PRACTICE UNIDER THE CHARTERS. 31
and the circumstance that donations were made to the
Overseers, or subject to their disposal, - may well account
for many otherwise seeming and unaccountable usurpa-
tions of power by the Legislature and the Overseers. In
truth, there is scarcely any irregularity or unauthorized in-
terference in College affairs by the Legislature or Over-
seers, for which a precedent may not be found in its his-
tory. This history is therefore to be studied and applied
with peculiar care and discrimination, when adduced as
authority for the exercise of power.
Again, it is evident that, while, on the one hand, proof
of the exercise of authority claimed by the Overseers, and
acquiesced in as such by the Corporation, has a strong ten-
dency to prove its legitimacy, on the other hand, the fact
that no reference has ever been made by the Corporation
to the Overseers of any particular subject over which au-
thority is now claimed, and that they have never required
such reference, nor complained of its Omission, is still more
convincing proof that no such authority exists, especially if
that subject be one of constant action by the Corporation.
The mere fact of occasional reference of questions or
votes by the Corporation to the Overseers, and their con-
sequent action upon them, has very little if any tendency
to prove authority of the one to control the other in regard
to the subjects of them. By the Charter, the Corporation
is entitled to the advice and aid of the Overseers when
called for, and is the sole judge when the right so to call
exists; it is also matural and reasonable that the former,
being a Board so small and comparatively humble, should
desire the concurrence and countenance of the other in
matters affecting the general conduct and popularity of the
institution. Many votes and acts, therefore, may be, and
always have been, and probably always will be, submitted
to the Overseers by the Corporation for concurrence, or aid
and counsel, - and in the determination of which the Cor-
poration would acquiesce, though contrary to its own opin-
ion, — and yet afford no just ground for the Overseers to
32 FINANCES.
claim authority in any such, where their counsel and action
were not invoked.
With these views of the College Charters and history,
your Committee now proceed to the examination of the
particular claims in question.
FINANCES.
The first of them, as stated in the Report of the Com-
mittee of the Overseers, relates to the finances, over the ad-
ministration of which by the Corporation they claim unlim-
ited right of supervision and control, as above shown (pp. 8,
9). It is expressly conceded in that Report (p. 9), “that a
detailed statement of the condition of the College funds, and
of all receipts and expenditures, is made annually by the
Treasurer to the government of the University, which is ex-
amined by a committee of the Corporation and Overseers,
whose certificate or report is presented to the Overseers at
their annual meeting.” And it might have been added,
that this report is accompanied by, or annexed to, the de-
tailed statement, and all are printed and annually distrib-
uted among the Overseers, so that every member of that
Board has put into his hands, year after year, precise infor-
mation of all details concerning the administration of the
estates and funds of the College, and thus has every oppor-
tunity for knowing whether there has been any, the slight-
est neglect or violation of duty on the part of the Treasurer
or Corporation. Moreover, the history of the College
finances proves that the system pursued by the Corpora-
tion has thus far been found unsurpassed, if not unequalled,
so far as the fidelity with which its estates and funds have
been managed is involved.
No misconduct, irregularity, or mistake, requiring the
application of any new set of rules, is pointed out or sug-
gested in the Report. The Committee (Rep. pp. 9, 10)
FINANCES. 33
admit that “it has not been the practice of the Corporation
to make any separate communication to the Overseers of
their doings in relation to the finances”; which shows that
the whole history of the College is against the practical
assertion by the Overseers, or acknowledgment by the Cor-
poration, of any such right. And no particular clause in
the Charter is cited or referred to in this connection with
especial application to this claim. Your Committee there-
fore are equally at a loss to understand its foundation, or
the motive for desiring any further rules upon the subject,
or any agitation of it at this time.
Three fragmentary citations from the Charter are made,
as the sources on which the various claims of the Overseers
are understood to be founded. The first, touching the
power of the Corporation “to purchase or otherwise ac-
quire real estate or personal property, and to hold the same
for the use and behoof of the President, Fellows, scholars,
and officers of said College.” The second, relating to choice
of officers and servants, and allowance of their salaries, and
the making of orders and by-laws. And the third, concern-
ing the profits and revenues of lands and disposing of goods.
(Rep. pp. 5, 6.)
The first has in itself plainly no tendency to support this
claim ; on the contrary, the power to acquire and hold real
and personal estate would naturally imply that of erect-
ing halls and chapels, &c., and making investments, and
keeping the estates in repair and insured.
The second is thus stated: “It is also enacted in said
Charter, that the said Corporation, or the major part of
them, may meet and choose such officers and servants for
the College, and make such allowance to them, and them
also to remove, and after death or removal to choose such
others, and to make from time to time such orders and by-
laws for the better ordering and carrying on the work of
the College, as they shall think fit: provided the said orders
be allowed by the Overseers.” The italicizing is by the
Committee.
5
34 FINANCES.
This citation surely can have no tendency to support the
claim under consideration, unless the words in italics be
carried back so as to relate, not only to the provision in the
citation first made concerning acquisitions of estates, &c.,
but also to other provisions intervening, — a construction
which, for the reasons above stated (pp. 15–23) and the
context, it seems impossible reasonably to contend for.
The third is quoted in these words: “And it is further
provided by said Act, that the President and three or more
of the Fellows may hold a meeting for the debating and
concluding of affairs concerning the profits and revenues of
any lands, and disposing of their goods, &c.; in all which
cases aforesaid the conclusion shall be made by the major
part, the said President having a casting vote, the Over-
seers consenting thereunto.” This italicizing is also by the
Committee. (Rep. pp. 5, 6.)
This, therefore, it is presumed, must be the citation re-
lied upon by the Committee as vesting in the Overseers
the authority claimed over the finances of the College.
And if the words, “in all which cases aforesaid the con-
clusion shall be made by the major part, the Overseers con-
senting thereunto,” did in fact follow, in the Charter, in im-
mediate sequence upon the words, “for the debating and
concluding of affairs concerning the profits and revenues of
any lands, and disposing of their goods,” (as this citation
indicates, and would naturally lead one to infer,) without
any intervening sentences to which they might apply, and
which might satisfactorily answer to and explain them
without supposing them to relate at all to “profits and rev-
enues of lands and disposing of goods,” the inference would
certainly appear reasonable, if not entirely satisfactory, that
it was intended thus to vest in the Overseers supervisory
control over the financial affairs of the College; and to
make their consent essential to the validity of all expendi-
tures of income from real estate, and all investments made
by the Corporation.
But unfortunately for any such argument or inference,
FINANCES. 35
this third citation is of detached and widely separated por-
tions only of the clause in the Charter from which they are
taken, as may be seen by reference to the whole context
copied above (p. 18), composing the fifth clause; and there
are intervening sentences between these portions upon other
subjects entirely foreign to “profits and revenues of lands
and disposing of goods,” — to some of which, immediately
following those words, it is impossible to suppose that
the other words, “the Overseers consenting thereunto,”
could have been intended to apply; and other sentences
upon other subjects, at the close and immediately preceding
those last named, to which it is not only reasonable, and
perfectly consistent with the whole context, that they should
be applied, but to which, for the reasons above stated
(pp. 23–28), in the endeavor to ascertain the true con-
struction of the Charter, it is believed to be morally certain
that they were intended solely to apply. No reliance, there-
fore, as your Committee believe, can justly be placed on
this fifth clause in support of the claims now under con-
sideration.
Among the principal “financial operations” alluded to
by the Committee in their Report (p. 10) as those over
which they claim that the Overseers should have this con-
trol, are “those of erecting a new College hall or chapel.”
But it seems to your Committee, that they entirely omit
any allusion to the clause in the Charter whence the power
of the Corporation in these matters is plainly to be de-
rived; although it immediately follows their second cita-
tion, and is contained in the same paragraph with it.
It is in these words: “And also that the President and
Fellows, or major part of them, with the Treasurer, shall
have power to make conclusive bargains for lands and tene-
ments, to be purchased by the said Corporation for valuable
consideration.” This certainly must include the power to
erect or build tenements, or halls and chapels, as identical
with or necessary to their full beneficial exercise. It surely
will not be seriously questioned whether a power to pur-
36 FINAN CES.
chase lands and tenements includes that of erecting build-
ings on land purchased for that use. And if the framers
of the Charter intended to make the exercise of these
powers dependent for its validity upon the prior consent
of the Overseers, or their subsequent ratification, it is
certainly most remarkable that they should have placed
this clause immediately after that relating to the enact-
ment by the Corporation of orders and by-laws, to the
validity of which such consent is expressly made essential,
and attach no such provision to this, – both, too, being in
the same paragraph. It is believed that no clearer case of
construction can be presented or imagined, by which an
intention to vest this power in the Corporation, without any
such limitation, could be made manifest.
The views above taken of the Appendix render further
comment upon it in this connection needless. But it is
strikingly observable, that no allusion whatever is made in
it to this most essential power of purchasing or otherwise
acquiring real estates, in the enumeration of those men-
tioned in it. There is not to be found in the Charter or Ap-
pendix a word upon the subject of sales of lands, and this
omission appears subsequently to have created doubts of
the power of the Corporation to make any. No argument
therefore can be deduced from either of these enactments
in support of the claim, now sought to be established by
the Overseers, of right of control over them.
Your Committee therefore confidently submit, that neither
the Charter nor the Appendix affords any reasonable ground
for the claim made by the Overseers to control the admin-
istration of the College finances.
In adverting to its history upon this subject, we start
with the admission by the Committee in their Report (pp.
9, 10), that “it has not been the practice of the Corpora-
tion to make any separate communication to the Overseers
of their doings in relation to the finances,” — the annual
report by the Treasurer of receipts and expenditures being
all that has been submitted to them. But the Committee
FINANCES. 37
now claim, that, when important expenditures are in con-
templation, the subject should be submitted to the Over-
seers for their approval or rejection; thus introducing an en-
tirely new subject of communication with that Board. No
line of demarcation is suggested, by which it can be deter-
mined what operations should be deemed unusual, or of
sufficient importance to be thus submitted to the control of
the Overseers, – nor any means of avoiding differences of
opinion upon that subject; but as this power of the Over-
seers, if they have any, extends from the payment of the
day’s work of a laborer, up to that of the cost of a hall or
chapel, it is obvious that the latitude existing for such dif-
ferences would probably lead to many difficulties in the
practical application of any rules that could be framed.
The history of the College is believed by your Committee
to be conclusive against any such claim.
In regard to sales of lands, it appears that, up to the year
1783, it was supposed that the Corporation had no power
to sell lands belonging to it, without a special act of the
Legislature for that purpose; and accordingly applications
were at several times made by the Corporation for such
leave, sometimes with and sometimes without the concur-
rence of the Overseers. In 1754, the Overseers advised the
Corporation to obtain from the Legislature general leave
to sell, with the advice and consent of the Overseers, such
lands as were or should be received upon mortgage, or
taken in execution for debt; and such an act was procured.
But it is obvious that this was merely a legislative invest-
ment of authority, that could not be extended beyond its
precise object, as stated in the enactment; and it has no
tendency to aid in an inquiry concerning the general powers
of the Overseers, otherwise than as it is a very clear admis-
sion on their part that they possessed no power to make or
authorize sales, as is also their subsequent vote mext here-
after mentioned.
In modern times no such act would be considered of any
importance, as it is perfectly well established that, by the
38 FINANCIES.
common law, a corporation with authority to acquire and
hold lands has the power also to sell them, as necessarily
incident to such tenure. In February, 1783, “the Over-
seers voted that the Corporation be desired to inquire
whether they are at present empowered, with the consent
of the Overseers, to alienate lands belonging to the Col-
lege; and if they are not, to apply to the General Court
for a law granting them that power.” There is no evi-
dence that the Corporation ever applied for such law, or
that any such was ever enacted; it having probably been
ascertained, upon legal investigation, that the Corporation
possessed the power as inherent to it by the common law.
About that time a special act was passed authorizing the
Corporation to convey a township in Maine to one Pea-
body; but he, and not the Corporation, was the applicant
for that act. From that period down to the year 1803
there were various sales of real estate, and in most cases,
if not in all, the votes of the Corporation were referred to
the Overseers, – being usually to sell, provided that the
Overseers should approve or concur. Since that period it
appears that the Corporation has exercised its clear legal
right to make sales of lands in numerous cases, without
seeking for the concurrence or approbation of the Overseers
in any of them, including that of the Parkman Township
in Maine; all which must have been known to the Over-
seers, the proceeds being set forth distinctly in the Treas-
urer's annual accounts.
With regard to investments, it appears that in 1730 the
Overseers advised the Corporation to let out funds on bills
of credit; and in 1736 they voted that “the College Treas-
urer should call in the College money let out on bonds, the
value of which is not ascertained, and let out said money
agreeably to the advice of the Board.” There is no evi-
dence known to your Committee that the Corporation had
asked for advice upon this subject, or ever acted in accord-
ance with that thus given. It is however too plain for ar-
gument, that no such vote, unless upon a matter submitted
FINANCES. 39
by the Corporation, could be of any legal obligation upon
it, or could be reasonably cited in support of authority so
to control it.
With these exceptions, if they be such, your Committee
are unable to find any instances in which the Overseers
have ever sought or claimed the right to interfere with or
control the investments of College funds. And when the
great numbers of them, in the different departments, which
have been continually made, are taken into consideration,
with the circumstance that they are always made subjects
of statement in the Treasurer’s Reports, so that their exist-
ence is brought constantly to the notice of the Overseers,
it certainly seems marvellous that no occasion has been
found, or attempt made, for the exercise of a power of such
vital importance, if existing.
With regard to purchases of lands, your Committee are
unable to find any instance in which the consent or con-
currence of the Overseers has been sought for or given, or
in which the omission to apply for it has been the subject
of any remonstrance or complaint, although many such
purchases, and some of great importance and motoriety,
have been made ; as, for instance, the granite buildings in
Brattle Street in Boston, and the lands adjacent to the
Observatory.
All the College buildings which were erected after the
enactment of the Charter, and prior to the year 1803, were
built with funds obtained wholly or chiefly by grants from
the State, which were usually obtained from the General
Court, by the aid or with the countenance of the Overseers,
whose influence in obtaining them was of course very great,
if not essential. And no argument in favor of any power of
control on their part in other cases can be framed on such
concurrence or consent. But since the year 1803, Stough-
ton Hall, Holworthy Hall, Gore Hall, University Hall, and
Dane Hall have been erected, and Harvard Hall altered at
great expense, by the Corporation, without any reference
to the concurrence or consent of the Overseers, and without
40 FINANCES.
the slightest suggestion on their part that any such was
necessary or should have been sought for. And, in fine,
during the past half-century and more, not an instance can
be found, as your Committee believe, in which the Corpo-
ration has ever sought for or had the consent or advice of
the Overseers in any financial operation whatsoever.
So far, therefore, as history is to be relied upon in de-
ciding the question of the validity of this claim, your Com-
mittee submit that it is impossible to imagine a stronger
proof that it has no just foundation. They are, however,
unwilling to leave the just results of their historical re-
search upon these subjects here.
They submit, that these results are highly confirmatory
of the construction which they have above given to the
Charter and Appendix, in saying that the limitations con-
tained in the terms, “provided the said orders be allowed by
the Overseers” in the third clause, must be confined to
rules, statutes, and by-laws, and cannot be extended back
to relate to acquisitions of lands by purchase or otherwise,
or the incidental power of selling them ; and that the lim-
itation in the words, “the Overseers consenting thereunto,” in
the fifth clause, must be confined to the immediately pre-
ceding sentences, relating to “great and difficult cases and
cases of non-agreement,” and cannot be carried back to
refer to “concluding of affairs concerning profits and reve-
nues of lands and disposing of goods,” or to any anterior
provisions in the Charter; and that the Appendix cannot
be considered as enlarging the powers of the Overseers on
these subjects. For if those provisions, or any other in the
Charter or Appendix, vested in the Overseers the great
powers of supervising and controlling all important invest-
ments of College funds, all purchases and sales of its real
estate, and erections and alterations of all College build-
ings, – powers, the exercise of which underlies the very
existence of the College, as a practical institution, which
are of constant daily application, and necessarily involving
the frequent expenditure of very large amounts of its re-
DONATIONS. 41
sources, – how is it possible to account for the entire omis-
sion of the Corporation to recognize some of them at any
time, and every one of them for the past half-century, and
for the like entire acquiescence of the Overseers in such
omissions, when, if they had these powers, there could be
no others which it was more imperatively their duty to
exercise 7
T) ONATIONS.
The next subject presented for consideration by the Re-
port, and one of importance not less grave, is that of Dona-
tions,— the acceptance or rejection of which the Overseers
claim to be subject to their control. This claim is of pecu-
liar interest, inasmuch as the means of instituting new
schools, and new foundations for instruction, or charitable
aid to students, and of increasing the library and philo-
sophical apparatus, and cabinets and other appliances for
advancement in letters, science, and art, always have been,
and probably ever must be, mainly dependent upon this
source; the income of the College subject to general
appropriation having been hitherto barely sufficient for
its other necessary expenditures, and it being desirable
to continue such exclusive application of it, in order to re-
duce as far as possible the cost of education within its
walls. And it is to this source chiefly, in the munificence
of private individuals, that the pre-eminence of this insti-
tution over all others in this country in its means of in-
struction is owing. It has attained to this pre-eminence
certainly without any practical exercise of such power as
the Overseers now claim ; and under the generally pre-
vailing belief, that the Corporation has the exclusive power
of acquiring and administering its finances. And regard-
ing the sensitiveness of public opinion upon monetary in-
vestment, and the great care with which benefactors of
public institutions look to permanence in the safety and
appropriation of their gifts, it is at least questionable
6
42 DONATIONS.
Whether so great a change as is now proposed would be
for the benefit of the College;— to say nothing of the un-
Willingness of many of those who may intend benefactions
to have their motives and designs thus made matter of
public debate, and exposed to what might seem to them
or their heirs disparaging rejection. And that these are
not merely fanciful apprehensions, your Committee are able
to affirm from their own knowledge that, in two instances
at least, intended donations by will, and one of them of a
very large amount, have been already revoked in conse-
quence of recent attempts in the Legislature to alter the
Charter and reorganize the Corporation, and of the agita-
tion of the questions now under discussion; and that
these objections have been made by one of the most liberal
living benefactors of the College in reference to future gifts.
They feel, therefore, that no trust committed to their keep-
ing is more solemn or sacred than that of firmly maintain-
ing the powers which they believe to be vested in them by
the constitution of the College for the care and adminis-
tration of its estates. - -
Upon this subject the claim made in the Report is, that
the Overseers may well have a right to expect that the
Corporation will give them official notice of every simple
bequest, or gift, unaccompanied with any qualification or
condition; although, under Ordinary circumstances, it might
not be deemed matter of any great importance. But that
when any donation is upon a particular condition, or is ac-
companied by a special trust, the vote of acceptance by the
Corporation is not sufficient and complete until concurred in
by the Board of Overseers. (Rep. p. 10.)
In this instance also the Committee make no reference
to any particular clause or provision upon which this right
is claimed, but leave it to rest without designation upon
some one or more of the fragmentary citations from the
Charter or Appendix made in their Report, or upon some
principle of which your Committee is uninformed. The
only provision in the Charter which they can imagine to
DoNATIONS. 43
be supposed to have any bearing upon the question, is that
in the first clause, in the words immediately following
those creating the Corporation, and commencing the de-
scription of its powers, and which are as follows: “shall
and may purchase and acquire to themselves, or take and
receive upon free gift and donation, any lands, tenements,
or hereditaments, within this jurisdiction of the Massachu-
setts, not exceeding £500 per annum, and any goods and
sufms of money whatsoever, to the use and behoof of the
said President, Fellows, and scholars of the said College;
and also may sue and plead, or be sued and impleaded, by
the name aforesaid, in all courts and places of judicature
within the jurisdiction aforesaid "; — thus ending with a
period and concluding a paragraph, having no reference
whatever to the consent of the Overseers as being essential
to the validity of such acceptance.
The next clause includes only authority to appoint a seal.
The third gives the power of choosing officers and servants
and of establishing their salaries, – and of making orders
and by-laws, “provided the said orders be allowed by the
Overseers”; and the fourth, that of making conclusive
bargains for the purchase of lands and tenements. The
fifth does not mention the subject of accepting or receiving
of donations. Nor is it named in the Appendix.
Your Committee are not aware that any stress is intend-
ed to be laid upon the word free as used in the first clause,
as being intended to vest in the Corporation power to re-
ceive only gifts unencumbered by conditions, or especial
trusts. Such construction would obviously deprive it of
all power to receive any gifts unless thus unencumbered,
and so render the great majority of past acceptances invalid.
Nor could any consent of the Overseers cure the difficulty,
for they clearly have no power to approve of any which the
Corporation has not the right to receive. The word free
is obviously used there to distinguish gifts from purchases
or donations requiring a consideration for the benefit of
the donors, vendors, or grantors.
44 DONATIONS.
Your Committee, from this summary of the Charter,
consider it too plain for argument, that no authority is
vested by it in the Overseers to control the Corporation, or
interfere with its action upon the subject of donations;
deeming the impossibility of applying the proviso above
quoted, or that in the fifth clause, to this subject, upon any
construction, however latitudinarian or strained, to be too
apparent to need further answer.
But although the Committee of the Overseers do not
refer to any express provision in the Charter in support of
this claim, they do attempt to support it by the statement
of a reason, which they think entirely satisfactory, founded
in a supposed necessity growing out of an imagined lia-
bility on their part, rendering its exercise essential to their
self-protection. -
They say that they “are persuaded that the vote of the
acceptance by the Corporation is not sufficient and com-
plete until such vote is concurred in by this Board (of the
Overseers). Otherwise the Overseers might be obliged or
compelled by an order of court to aid in the eacecution of a
trust which they have not sanctioned, nor ever would have
consented to, if the same had been laid before them for their
approval. The Committee therefore are of opinion, that it
is the duty of the Corporation to submit to this Board the
question of the acceptance of every donation accompanied
by a special trust, or imposing some particular obligation
upon the government of the College.” (Rep. pp. 10, 11.)
Your Committee desire humbly to say, with all respect
to the learned Committee by whom the Report was made,
and the Honorable Board by whom it was adopted, that
they are as unable to find in what code of laws, or upon
what legal principle, any such liability of the Overseers can
be supposed to exist, as they are to discover in what part
of the constitution of the College the power thus claimed
resides. The idea that a body, established with visitato-
rial or supervisory powers only over certain acts of a cor-
poration, but having no legal or beneficial title to any of
DONATIONS. 45
its estates, no corporate seal, and no ability to originate
any act upon which the question of its liability could arise,
and responsible only for the exercise of an honest discre-
tion in approving or disaffirming of those acts, the corpo-
ration alone being intrusted with the primary administra-
tion of its affairs and estates, can be liable to be sued at
common law, or in equity, and compelled to give its assent
to such acts against its own judgment and will, - seems
to your Committee, in all humility, a novelty in jurispru-
dence, the authority of which they are not prepared to
recognize.
Besides, if it were admitted that such liability under any
circumstances exists, it seems to your Committee obvious,
that, as the only duty imposed upon the Overseers is that
of the exercise of an honest judgment in matters submitted
to them by the Corporation, that judgment being made in
itself conclusive, no court or other human power could
lawfully interfere to compel their assent to a measure which
in such exercise of judgment they should disapprove: for
the constitution of the College, and the law in reference to it,
make that judgment final and without appeal. It could
therefore be only in cases of factious, oppressive, or cor-
rupt refusal to give assent to acts of the Corporation law-
fully requiring it, that any judicial authority could be ap-
plied, supposing that the right of appeal to such could ever
exist. And of course such cases must be supposed impos-
sible. *
Your Committee therefore are unable to find in the
Charters, or in the reasoning set forth in the Report to the
Overseers, any ground upon which they could feel justified
in recommending to this Board the surrender of a right,
which they have hitherto always understood to be vested
in it, and one which it is their duty to maintain.
They turn, therefore, to the only remaining evidence ad-
duced in support of this claim, and which is supposed to
be found in the history of the College upon this subject.
They would premise, however, that, even if such history
46 l) ONATIONS.
gave seeming authority for it, they should think it an un-
satisfactory argument in support of one so manifestly, in
their judgment, against the plain provisions of the Char-
ter; for they entirely agree with the Committee of the
Overseers in their views with regard to the influence of any
such history in such cases, as expressed in their Report
(p. 17), though they do not apprehend the need of resort-
ing to any such principle in this investigation.
It is further manifest, that the mere circumstance of send-
ing up by the Corporation of votes accepting important
donations, where no questions had arisen, even if the in-
stances were numerous, would have but little tendency to
establish an obligation to do so on the ground that the
consent of the Overseers was essential; inasmuch as such
procedure would be amply accounted for by the considera-
tion, that the joint action of the two Boards would be a
more emphatic and grateful acknowledgment of the favor,
than the act of one only. And this would be especially so
in the early history of the College, when the Board of
Overseers was composed in the manner and exercised the
influence above stated. Still, as before, your Committee
are not aware of any need of this or any other salvo, as
the cases of such reference to the Overseers, cited by the
Committee in their Report, or discovered on the records,
instead of being numerous, are very few, and scattered over
great spaces of time.
Again, it is obvious that cases in which donations were
given as foundations for new professorships, and in which
the vote accepting the donation, and the orders and rules
for the establishment and government of the professorship,
were sent up together, as constituting the entire proceed-
ings of the Corporation on the subject, are not in point to
show any recognition of a corresponding obligation to send
up the acceptance alone considered for confirmation. The
validity of the orders and rules unquestionably demands
such concurrence.
In confirmation of their views upon this subject, the
DONATIONS. 47
Committee of the Overseers refer to the establishment of
the Hollis Professorship of Divinity, — which, being the
first professorship instituted in the College, may doubtless
with propriety deserve notice in this relation. But all
which they state is, that “it appears by the records of this
Board (of Overseers), that the proposal of Mr. Hollis to
endow a Professorship of Divinity was by the Corporation
laid before the Overseers, who expressed much gratification
on the Occasion, and appointed a committee to prepare an
appropriate letter of thanks to this distinguished benefactor
of the College.” (Rep. p. 11.) The date of this vote is not
given, but it was in January, 1722.
The only inference seemingly intended to be drawn from
this citation is, that the Corporation acted under the ac-
knowledged obligation to send up for concurrence and ap-
probation the acceptance of a proposal for an endowment.
But upon turning to the records of the Corporation, we find
that in April, 1721, they first received notice of the inten-
tion of Mr. Hollis to found such a professorship, with cer-
tain rules and orders proposed by him for its government;
and that on the twenty-first day of June following they
passed a vote returning to him their thanks for his bounty,
and expressive of their approbation of the proposed rules;
and on the twenty-eighth day of the same month elected
Mr. Wigglesworth a professor, and sent to Mr. Hollis the
nomination for his approval. In January, 1722, they for
the first time laid the subject before the Overseers, as “the
pious and generous proposal of Mr. Thomas Hollis, of
London, merchant, for the establishment and endowing of
a resident Professor of Divinity at the said College, in-
cluding a draught of rules and orders relating to the said
professor.” The Overseers, after some debate, voted to
establish the professorship; and the rules and orders, with
some amendments, were adopted. And at an adjourned
meeting the appointment of Mr. Wigglesworth, who had
in the mean time been again elected by the Corpora-
tion to the chair of the professorship, for reasons of policy
48 DONATIONS.
not necessary to be here stated, was confirmed. So far,
therefore, from the Corporation’s having acted upon any
received understanding, or implied admission, of an obliga-
tion to ask for the consent of the Overseers to the accept-
ance of a donation, the case, taken in all its connections,
seems to your Committee rather confirmatory of the con-
trary doctrine.
The Committee add, that, “at divers times, questions
respecting donations have been presented to the Overseers
and acted upon by them, and votes of thanks to the donors
have often been passed.” No particulars are stated, and
no references made, by which the pertinence of the cases
referred to may be ascertained; but if all that appears
“is that votes of thanks were passed,” it amounts to very
little towards sustaining the claim made of a right to reject
the gifts. -
After this introductory example and general remark, the
Committee of the Overseers proceed to adduce four other
instances of the action of the two Boards on the subject of
donations, ranging from the year 1791 to the year 1855,
a period of sixty-four years, – the first also occurring O]]62
hundred and forty-one years after the date of the Charter,
in order to show “what has been the practice in this respect.”
(Rep. p. 11.)
The first cited is that of the bequest by the Hon. James
Bowdoin of £400, in 1791, seventy years after the Hollis
donation before mentioned, for the providing of premiums
for Dissertations. The Committee in their Report to the
Overseers set forth the preamble and vote of the Corpora-
tion accepting the “legacy upon the conditions pointed out
by the testator,” and authorizing the Treasurer of the Col-
lege to receive the same; and that, this vote being presented
to the Overseers, they voted to concur with the Corpora-
tion in accepting the legacy, and in appointing the Treas-
urer to receive it; that a committee of the Overseers was
then appointed to consider what was proper to be entered
on their records relative to this legacy, which committee
DONATIONS. 49
made a report expressive of the sense entertained by the
Board of the attachment of Mr. Bowdoin to the College,
and of his eminent services in its behalf, and the same was
adopted. And this is put forth as proof of the practice of
the Corporation to send up votes of acceptance of dona-
tions to the Overseers, and of the necessity of their concur-
rence therein to render them effectual or complete.
When it is remembered that Mr. Bowdoin had long been
the most active and generous member of the Board of
Overseers, and had rendered in many ways distinguished
services to the College, – and when it is seen that, after the
passing of the vote of concurrence, which in ordinary cir-
cumstances was all that would have been done, an especial
complimentary additional one in reference to his services
was also passed,—these proceedings might be considered as
very satisfactorily accounted for, without supposing them
founded in any sense of duty on the part of the Corpora-
tion, or any claim of right by the Overseers, making neces-
sary their confirmation of the acceptance of the gift. But
if the Committee had pushed their inquiries a little further,
and examined the will by which this gift was made, they
would have found that a concurrent vote was, by the terms
of the donation, made essential to the reception of the money
by the College. It contains this provision: “The four hun-
dred pounds aforesaid to be paid to whomsoever the Over-
seers and the Corporation of the University shall empower
to receive the same.” It cannot, therefore, be relied upon
as a case showing a practice founded upon a principle
recognized by either Board, – nor indeed any practice
whatever.
The next case cited is that of the gift by deed by Mr.
Parkman of a township in Maine, represented as in 1814,
for the establishment of another religious professorship in
the College. But the only proceedings referred to are the
vote of the Corporation in that year, “that the documents
relating to the donation of Samuel Parkman, Esq., of a
township of land for the purpose of promoting the interests
7
50 DONATIONS,
of religion and science, and of religious and scientific edu-
cation in the University, with the vote of the President and
Fellows on the subject, be laid before the Honorable and
Reverend the Overseers, and they be requested, if they see
fit, to concur in said vote,” and the fact that the same was
concurred in by the Overseers. (Rep. p. 12.) The vote of
the Corporation here referred to was one passed upon the
receiving of the deed at that time, and was to accept the
donation upon the conditions imposed. The Committee
omit to cite the vote of the Corporation in February, 1813,
a year previously, to receive the proffered donation of Mr.
Parkman for the support of an additional theological pro-
fessor, which appears never to have been sent to the Over-
seers. And they also omit the subsequent vote of the Cor-
poration, accepting a donation of five thousand dollars for
the purpose of completing the foundation of that professor-
ship in 1840, on the conditions proposed, the consent of
the Overseers to which appears never to have been received
or asked for, or made a subject of inquiry. The whole
case, therefore, is one at best of very doubtful authority for
the claimants. -
The third case relied upon is that of the donation of the
Hon. Nathan Dane, the Committee citing the following
vote of the Corporation: “Voted, that this Board accept
the donation of the Hon. Nathan Dane for founding a Pro-
fessorship of Law, on the terms and conditions set forth in
his communication to the Corporation, dated June 2d,
1829; and that the above proceedings be laid before the
Overseers, that they may approve the same, if they see fit.”
They also add, that “this vote, being laid before the Over-
seers, was concurred in.” (Rep. pp. 12, 13.)
If this were a statement of the whole case, – and the
words “the above proceedings,” in the vote, related only to
the reception of the letter and acceptance of the donation
previously mentioned in it, —it would constitute one in
which the acceptance of a gift upon conditions was by the
Corporation made subject to the consent of the Overseers.
IBO NATIONS, 51
But at the same time it would be obvious, that the pro-
posed establishment of such a new professorship was an
occasion calling for such communication of the fact, both
out of respect to the Board of Overseers and the donor, be-
cause of the magnitude of the occasion, and that the donor
might receive the acknowledgment of both Boards. It is,
however, an incomplete statement of the case; other votes
of the Corporation, establishing the professorship and elect-
Čng the Professor, were sent up with the vote of accept-
ance, and constituted a part of “the above proceedings”
which the Overseers were requested to concur in ; these
being subjects always so referred. Emphasis seems in-
tended to be laid upon the fact, that Judge Story was then
a member of the Corporation. But when it is remembered
that one of the conditions or proposals of Mr. Dane, attend-
ing the donation, was that he should be the first Professor,
it will not be considered very remarkable that he should
desire his election to be submitted to the Overseers, even
if it had not been customary always to refer such appoint-
ments to them.
The last case referred to by the Committee is that of the
donation of Miss Plummer, in the year 1854, for the estab-
lishment of a new professorship in the University; and which
became the subject of an elaborate Report, made by a com-
mittee in April of the following year. The Committee of
the Overseers, in the Report under consideration, say that
“the language and action of said committee may be re-
garded as a distinct expression of opinion by them, that
every donation, accompanied by a trust, should be laid be-
fore the Overseers for their consideration, and be acted
upon by them.” (Rep. pp. 13, 14.)
If this fact were so, the utmost that could be inferred
from it would be, that another committee of the Overseers
had very recently expressed this opinion. It could with no
propriety be urged as any proof of the mutual understanding
of the Boards, and still less of any established practice regu-
lating their proceedings; it should rather be regarded as
52 DONATIONS.
occasioning or prompting the present movement, than as
evidence of the establishment of the claim contended for.
But your Committee, after the most careful perusal of that
Report, are wholly unable to find any authority for this
representation. On the contrary, it there appears distinctly
that the donation had been accepted, and a suitable ac-
knowledgment had been directed to be made to the execu-
tor of Miss Plummer's will, nine months before any refer-
ence of the subject to the Overseers, and that the vote of
such acceptance and acknowledgment had never been sub-
mitted to them for concurrence; nor is any intimation
therein given that this omission was a subject of com-
plaint. The only votes of the Corporation submitted to
the Overseers were those establishing the rules and stat-
utes of the professorship, which by the Charter must be
so submitted, and the appointment of the Professor, which
by uniform usage always has been thus referred. The re-
solve recommending “that the Overseers do cordially and
gratefully concur with the Corporation in the acceptance
of the bequest of the late Miss Caroline Plummer, and in
the establishment of a new professorship agreeably to the
terms of that bequest,” was a fitting and graceful tribute
by that Board of its acknowledgments, due to so distin-
guished a benefactor of the College; but can, as your Com-
mittee think, with no propriety be tortured into an asser-
tion of their claim to consider their concurrence in such
acceptance essential to its validity. It has therefore, as
your Committee believe, no tendency to support the claim
in this behalf contended for by the Committee in the Re-
port now before them.
They submit, therefore, that there is an entire failure of
historical evidence in favor of that doctrine, so far as the
cases cited by the Committee are relied upon. But they
are unwilling to leave the subject here. Having been
thus invited into this field, they beg leave to present some
results of their own investigations upon this subject,
which they are constrained to believe must have escaped
DONATIONS. 53
the observation of the learned Committee in their re-
searches.
The doctrine contended for by the Overseers embraces
all donations in aid of professorships and charities previ-
ously established, as well as all intended to be thereby
newly instituted; and under it all would indiscriminately
require their assent to render acceptances of them valid.
But the records of the Corporation and the Treasurer's ac-
counts are filled with cases of this sort, in not one of which,
as your Committee believe, has such reference to the Over-
seers been made.
There is an early case on record, in 1669, in which both
Boards, having met for the choice of a Treasurer, as was
necessary, returned a vote of thanks to Mr. Henly of Eng-
land for a gift of £275; but no formal concurrence in the
acceptance is so much as hinted at. Here also the accu-
racy of the notions then entertained of the relative powers
and duties — or perhaps, more properly speaking, influ-
emce—of the two Boards, is illustrated by the vote concern-
ing the Treasurer, which was: “The Overseers, with the
consent of the President and Fellows, elected John Richards
Treasurer.”
In the spring of 1719 Mr. Thomas Hollis made his first
gift, which was in books for the Library, and money for aid
of indigent students. In the month of April, in the follow-
ing year, he transmitted a further large sum for the same
purpose. Both branches of the College, as was to have
been expected, were desirous to express their grateful ac-
knowledgments for benefactions so generous and timely.
On the 24th of May, the Corporation voted their thanks to
him. And on the 23d of the month of June following, the
Overseers appointed a Committee to prepare a letter of
thanks, which, being reported and approved, was sent to
him. The vote of the Corporation was not sent up to
them; and the idea of their consent, as being necessary to
the validity of the acceptance, seems never to have entered
the thoughts of either Board.
54 DONATIONS,
One of the next important donations in order of time
was by the same great benefactor, for founding the Pro-
fessorship of Mathematics and Natural Philosophy which
bears his name. He had prepared and sent over certain
rules and orders for its foundation and government; and
in April, 1726, his proposal to establish it, and his nomina-
tion of Mr. Greenwood as the first Professor, were laid be-
fore the Corporation; who voted to accept his proposals,
and to return to him their thanks “for his repeated boun-
ties to the seminary, and in a very particular manner for
his most generous and surprising proposal of a Professor-
ship of Mathematics and Experimental Philosophy,” &c.
This vote was not sent up to the Board of Overseers. On
the eighth day of June following, the Corporation acted
upon the several plans for rules and orders proposed by
Mr. Hollis, and, after some alterations, transmitted one of
them to the Overseers for their approbation. On the six-
teenth of that month, the Overseers passed the rules and
orders, with some amendments, and directed a letter ex-
pressive of their thanks to be sent to Mr. Hollis. But it
was not until May, 1727, that they were finally adopted
by both Boards, and a Professor was elected. In all these
proceedings we look in vain for any intimation of any un-
derstanding or pretence, by either Board, that the consent
of the Overseers to the acceptance of the donation was
considered important.
On the fourth day of September, 1764, the Corporation
passed a vote to request the executors of Mr. Thomas Han-
cock to pay over the fund bequeathed by him for the estab-
lishment of a professorship, which was not sent up for
concurrence. On the nineteenth of the same month, the
Corporation voted to accept the bequest and establish the
professorship, and on the second day of the next month
appointed a Professor. On the same day all these votes
were together presented and concurred in by the Overseers.
It affords no argument, therefore, in favor of the claim now
made; for had such confirmation of acceptance been thought
DONATIONS. 55
needful, the Corporation could not have asked for payment
before obtaining it. -
The fund for the Boylston Professorship of Rhetoric and
Oratory was received by the Corporation, February 11,
1772, and invested to accumulate, without any reference of
the proceedings of the Corporation on the subject to the
Overseers.
That for the Hersey Professorship the Corporation voted
to receive and invest, in November, 1772. But there is no
reference to it in the books of the Overseers, until a ques-
tion arose respecting it after the Revolutionary war.
The fund given by Governor Pownall to found a Profes-
sorship of Political Law was accepted by the Corporation
in January, 1784, and no reference to it is found in the
books of the Overseers.
That for the establishment of the Alford Professorship
was accepted by the Corporation, March 31, 1789, and
never referred to the Overseers; and no allusion to it ap-
pears on their records until the professorship was established,
more than twenty years afterwards; when the vote for
founding the professorship and appointing the Professor
were presented for concurrence.
In June, 1798, the Corporation accepted a donation in
money from Jonathan Mason for the Divinity Professorship,
of which no such reference was made.
In June, 1801, a donation of an annuity of $ 100 from
Mr. Boylston, for additions to the Anatomical Library, was
accepted by the Corporation, and never referred.
In 1805, when funds were raised to found a Professor-
ship of Botany and Natural History, the Corporation sent
up for concurrence votes founding the professorship, pre-
scribing its rules and Orders, and appointing a Professor,
all at the same time, but without any vote of acceptance.
In August, 1810, the Corporation accepted the legacy of
$ 5,000 from Samuel Dexter, for promoting a critical knowl-
edge of the Scriptures, but it was never sent up for concur-
Te Ilce. i
56 DONATIONS.
In April, 1814, a gift of $20,000 was made by a bene-
factor, then unknown, (the Hon. Samuel Eliot,) who de-
sired that his name should not be disclosed by the person
transmitting it, to found the Greek Professorship. The
Corporation immediately passed votes accepting the dona-
tion, and expressive of their gratitude for this generous ben-
efaction; but it was not thought necessary to send them
up to the Overseers, that they might concur in its accept-
ance. It was not until February, 1815, when the rules and
statutes were enacted, and the Professor was chosen, that
any votes were sent up for concurrence.
In September, 1815, the Corporation appointed agents
to receive the legacy of Count Rumford, and voted to
found the Rumford Professorship. But no reference of the
subject to the Overseers was made until October, 1816,
when the statutes of the foundation were presented for
COI), CUITT6 Il C62.
In December, 1823, the Corporation received notice of
the bequest of John McLean of $20,000, to found a Pro-
fessorship of History, and voted to present their thanks to
the executors. But no request was made to the Overseers
to join in its acceptance; nor does any reference to them
appear upon the subject, until the vote to found the pro-
fessorship was sent up in 1839.
In 1831, the donation of Mr. Dane for the erection of a
building for the Law School (Dane Hall) was accepted by
the Corporation; and subsequently was so appropriated,
without any reference upon the subject to the Overseers.
The general result, therefore, of the evidence upon the
practice of the two Boards appears to be this. In no in-
stance, known to your Committee, has a vote of accept-
ance of a “donation upon a particular condition, or accom-
panied by a special trust,” as being in aid of a previously
existing professorship, or charity, been submitted to the
Overseers for concurrence, though such donations have
been numerous. In the cases of the Boylston, Hersey,
Alford, Dexter, and McLean donations, the funds were ac-
DONATIONS. 57
cepted, and allowed to accumulate for many years, before
they were ever brought to the notice of the Overseers oth-
erwise than by the Treasurer's Reports. The Pownall fund,
the Boylston annuity, and that bestowed by Mr. Dane for
the erection of Dane Hall, were accepted and appropriated
by the Corporation, and neither the acceptance nor the ap-
propriation of either of them was ever referred to the Over-
See]’S.
When new professorships have been established, and the
rules and statutes regulating them have been enacted at the
same time, or when appointments of Professors have been
made, they have always been referred to the Overseers;
such reference of Orders, rules, and statutes being expressly
required by the Charter, and such reference of appointments
being in conformity with a practice to be hereafter consid-
ered; and in some instances the votes thus sent up for con-
currence have contained a clause declaring acceptance of the
fund, as would very naturally occur without any intention
on one side to admit, or on the other to claim, such reference
as matter of right; and in some cases the rules and election
only have been submitted, without allusion to any accept-
ance of the funds. No question appears ever directly or
indirectly to have arisen upon this subject between the two
Boards, until its suggestion in this Report; and the con-
stant practice, as above shown, proves conclusively, as your
Committee believe, that in no instance was a reference
made of the acceptance of a donation for concurrence, in
which it is not satisfactorily accounted for as required by
the terms of the gift, or as constituting part of a vote upon
subjects otherwise calling for such concurrence by the ex-
press terms of the Charter, as in case of orders, statutes,
and rules, or in that of appointments according to the uni-
form practice above referred to.
The varied practice might seem to leave the question
undetermined, whether votes merely founding new profes-
sorships or other new offices in the College should be sent up
for concurrence; though in the majority of cases the votes
8
38 T) ON ATIONS,
to institute such professorships have been sent up together
with the rules and statutes for their regulation. The only
question which appears to have arisen between the two
Boards upon this subject appears in a vote of the Over-
seers, February 13, 1834, “that when the Corporation shall
institute a College professorship, or any other office in the
University, and shall present to this Board a person elected
by the President and Fellows to fill such place, to be
confirmed by this Board, the said President and Fellows
shall assign in writing the necessity for such office, and the
rules and regulations adopted pertaining to the same";
and in the vote of the Corporation, June 19 of the same
year, at a meeting when the vote just mentioned was laid
before that Board, “that the Corporation cannot recognize
the right of the Board of Overseers to order them to assign
in writing the reasons of any of their acts.” And the order
appears to have been subsequently entirely disregarded by
both Boards.
Your Committee therefore submit, with entire confidence,
that neither by the terms of the Charter nor the practice of
the two Boards can it be maintained that the Corporation
is under any obligation to send up for concurrence any
vote accepting any donation of any kind; or that the Over-
seers have any power to interfere with, control, or prevent
such acceptance; but, on the contrary, that the plain lan-
guage and whole context of the Charter, and the uniform
practice of the Boards, are conclusive against any such ob-
ligation on the one part, and any such claim of interference,
control, or rejection on the other.
If it be argued, as was suggested in the conference of
the two Committees, that this construction gives to the
Corporation a dangerous and unlimited power of commit-
ting the College to the support of institutions and objects
foreign or adverse to its interests, the answer is very sim-
ple; namely, that the Corporation has no lawful authority
to accept any donation not within the scope of the ob-
jects of its creation, pointed out by the Charter, and of the
powers with which it is thereby invested.
AP POINTMENTS. 59
The Corporation, by the authority of the government
conferred by their Charter, and by the trust reposed in
them by donors and benefactors, are constituted the sole
judges of the propriety of accepting such gifts, and of de-
termining whether the objects proposed in any such dona-
tion are within the objects and purposes for which the
Charter was granted. They are bound, not only legally,
but in ford conscientia, to the honest and faithful exercise
of their judgment in this respect, as well as in the perform-
ance of every other part of the trust reposed in them for
the best interest of the institution. They, and they alone,
are legally responsible at the tribunals of the State for any
improper failure or refusal to accept a suitable and proper
donation, when proffered for the benefit of the College, as
they would be for the acceptance of any such donation for
purposes not within the scope of its Charter, or for the
omission to use, or the perversion or abuse of, any one
rightly accepted.
APPODNTMENTS.
Upon this subject, forming the next topic of the Report,
the Committee are quite brief and summary; but it is a
great relief to find that the foundation of the claim made
for the right of confirmation or rejection of nominations to
office in the College is clearly and distinctly stated, so that
it may be openly examined, and its soundness or unsound-
ness satisfactorily ascertained, and is not left to uncertain
inference or vague conjecture.
This claim is thus disposed of in the Report. The Com-
mittee (Rep. p. 14) say: “This [subject of appointments]
seems to have been regarded at all times as a matter in
relation to which the action of the Corporation did not take
effect until the same was confirmed by the Overseers. The
Corporation have therefore uniformly sent their votes or
orders, by which appointments have been made, to this
60 - APPOINTMENTS.
Board [of Overseers] for approval.” The use of the word
“orders” in this sense will not have escaped observation;
your Committee cannot find any warrant for it in the
Charter, or in the records of either Board, early or late, but
believe it to be wholly opposed to both, as it clearly is to
the context of the Charter where it is employed.
Again (Rep. p. 15) they say, in treating of the subject
of salaries: “It is provided in the Charter, in substance, as
appears in the passage herein above cited, that the Corpo-
ration may meet and make such allowances to College
officers or servants as they shall think fit; provided their
orders or doings on the subject be allowed by the Over-
seers. This provision is contained in the very section, or
part of the act, in which the matter of appointments is reg-
ulated, and that too by the same phraseology as is used
touching salaries; and it has never been questioned by the
Corporation that all such appointments or elections require
the confirmation of the Overseers.” How far this can be
considered a correct and just statement of the contents of
the Charter, in the passage referred to, will be presently
considered. It is adverted to now, in connection with the
preceding passage cited, only to show the precise ground
on which they rest their claim of control over appointments,
and the extent of that claim. And it is thus expressly
and unequivocally and exclusively based upon that pro-
vision which your Committee have designated as the third
clause, and which is thus considered in the Report as cov-
ering all appointments.
The position taken by the Committee, therefore, is, that
the Overseers, by virtue of the proviso in that third clause,
have the right to require of the Corporation, and that it is
the duty of that Board, to submit to them, for confirmation
or rejection, all appointments to office in the College; and
they affirm that “it has never been questioned by the Cor-
poration, that all such appointments do require such con-
firmation.”
It is true that appointments made by the Corporation to
APPOINTMENTS, 61
offices of government and instruction have, from the earliest
times, and, as is believed, with entire uniformity, been sent
up to the Overseers for concurrence or rejection. Your Com-
mittee, however, are satisfied that it is no less true, that such
submission of them has never been because of any admit-
ted or supposed obligation on the part of the Corporation,
or of any claim made by the Overseers, founded upon that
provision in the Charter, but, on the contrary, that any
such construction of it has been expressly repudiated by
both Boards in their records and in their practice; and that
the learned Committee are entitled to the credit of entire
originality in any such application or construction of that
clause. In order to maintain it, they assume that all
appointments made by the Corporation, excepting in the
election of members of their own Board, are made under
the power given by that provision of the Charter, and that
the words at the close of it, “provided the said orders be
allowed by the Overseers,” apply to such appointments.
Your Committee have above shown, and, as they think, to
plain demonstration, by the best of evidence, namely, the
Charter itself, that this proviso admits of no such applica-
tion (pp. 21–23). And they now proceed to the considera-
tion of the next best evidence of which the nature of the
case admits, namely, the records and actions of the two
Boards; and which, they submit, is entirely confirmatory
of that conclusion.
It is self-evident that this proviso, if it applies at all to
appointments made under that clause, extends equally to
every one so made, without discrimination of any one from
any other. And also that, if it applies at all to salaries al-
lowed under it, it includes every one so allowed. And fur-
ther, that, if applicable to either appointments or salaries, it
must be equally so to both ; and vice versa, that, if it does
not justly apply to any one such appointment or salary, it
does not to any other. If, then, it can be shown that any
one appointment, or class of appointments, or any one sal-
ary, or class of salaries, made or allowed under that clause,
62 AP POINTMENTS.
has been and is, by votes and practice, considered as ex-
clusively within the acknowledged control of the Corpora-
tion, without any right of interference on the part of the
Overseers, it not only follows conclusively, that the Com-
mittee are entirely in error in taking the position above
stated, and in saying, that “the Corporation have therefore
uniformly sent their votes or orders, by which appointments
have been made, to this Board [of the Overseers] for ap-
proval,” and that “it has never been questioned by the
Corporation that all such appointments or elections require
the confirmation of the Overseers”; but it also follows
conclusively, (so far as such proof is conclusive that the
proviso does not apply to such particular case or class of
cases,) that it does not apply to any other case or class of
cases arising under that clause, and also that it affords no
ground whatever for the right of control or interference
concerning appointments and salaries as claimed in the
Report. -
The first instance in which any question seems to have
arisen, that may be considered as involving the construction
or application of this third clause, was in the remarkable
attempt made by the Overseers in the first instance, and
afterwards with the concurrence of the House of Repre-
sentatives, to break down the Corporation, and remove
three of its members, on account of hostility to their re-
ligious opinions, in the years 1721, 1722, 1723; and the
successful resistance of which attempt constitutes, as your
Committee suppose, one of those “trying and difficult oc-
casions” referred to in the Report, in which the Corpora-
tion was “the bulwark of the College.” (Rep. p. 26.)
This clause was not, however, then made the subject
of especial reference or comment. A memorial of the
Overseers for an enlargement of the Corporation, having
been presented to the General Court in 1722, was referred
to a committee, which reported several Resolutions, and
among others one in these words: “Thirdly, that the
President and Fellows of the said College, or the major
APPOINTMENTS. 63
part of them, are not warranted to fix or establish any
salary or allowance for their service, without the approba-
tion and consent of the Overseers.” The Report was ac-
cepted by the House, and concurred in by the Council;
but the Governor refused his assent, for reasons not perti-
ment to this inquiry. In the session of 1723, the House
again passed the same Resolves, without notice to the
Corporation, and notwithstanding their earnest solicitation
to be heard upon them at the preceding session, and sent
them to the Council for concurrence. The Council, how-
ever, granted the hearing, and thereupon non-concurred in
the Resolves; and they were never afterwards heard of
in either branch of the Legislature.
It will be observed, that this denial of the power of the
Corporation to establish salaries was strictly confined to
those established for themselves (the Corporation then em-
bracing a majority of the instructors); and was not ex-
tended to any question of their authority to appoint the
salaries of other persons not members of the Corporation.
And this circumstance is in itself exceedingly strong evi-
dence, and seemingly conclusive, so far as negative evi-
dence can be so, that no question was considered to exist
of its exclusive authority to establish the salaries of officers
and servants appointed by it under the third clause; for
if there had been, the denial would have included that also.
And the reply of the Corporation, in their memorial to
the General Court, is conclusive, that, up to that period, no
reference of any such appointments had ever been made
to, or claimed by, the Overseers as due to them. They
say: “But we do not find that it [the Charter] leaves them
[the Overseers] any power in the matter officing and estab-
lishing any salaries or allowances, or disposing of the in-
comes and revenues of the College.” Again: “We know
not of such allowances being at any time brought to the
Overseers for their facing of them.” And one of their
chief arguments against the proposed change in the or-
ganization of the Corporation, which was to have it com-
64 APPOINTMENTS.
posed of resident instructors, was the clear construction
of the Charter, and settled usage under it, giving to that
Board the exclusive authority over salaries, and which
ought not therefore to be in the hands of a majority thus
interested in its exercise.
No more satisfactory evidence could exist, that, up to
that period, being seventy-three years subsequently to the
date of the Charter, no practice or understanding had ex-
isted tending to show that the Overseers ever had exer-
cised or claimed any power over the establishment of
salaries appointed by the Corporation under the third
clause, or that the Corporation had ever by vote or action
recognized any such power. And such entire absence of
any claim or recognition of such right, for such a space of
time, upon the records of the Corporation or of the Over-
seers, and such denial by the Corporation as soon as pre-
sented, and the subsequent acquiescence of the Overseers
and General Court in the decision of the Council, are, as
your Committee think, satisfactory evidence that no such
right or obligation existed. And if none existed over sala-
ries, it is equally certain that there could be none over
appointments made under that clause.
The next occurrence which may be considered as hav-
ing a bearing upon this question is the Report of a com-
mittee of the Overseers, appointed in 1732, to take into
consideration the condition of the College, and to “report
proposals for its benefit.” The College was at that time
in great disorder; and the committee in their Report,
representing it to be in a weak and declining state, rec-
ommended several propositions; the first of which was for
the revisal of the laws, and their better adaptation “to the
present circumstances of the society’’; the second, that
the salaries of tutors and instructors be paid quarterly ;
and the third was in these words: “Whereas heretofore,
under the present Charter, salaries were wont to have the
allowance of the Overseers, that the Overseers do now
assume their right of stating and allowing salaries agreed-
APPOINTMENTS. 65
bly to the ancient practice.” The Board amended this
proposal by substituting the words “consenting to ” for
the word “stating.” This last proposal implies a belief,
then existing in the Board of Overseers, that they had
formerly exercised a supervisory power over salaries estab-
lished by the Corporation. But this was clearly an error,
as there is no instance of the exercise or admission of any
such power upon the records of either Board; and it was
also a misapprehension which may be very satisfactorily
accounted for, as will be shown when the subject of sal-
aries shall be under special consideration.
These three proposals, with others not material in this
inquiry, were accepted by the Overseers, and transmitted
to the Corporation. And the two Boards proceeded forth-
with very harmoniously to revise and establish a code of
laws, in the manner prescribed by the Charter. But no
subsequent notice appears ever to have been taken by
either Board of this third proposal, - the Overseers, as
your Committee suppose, being satisfied, upon investiga-
tion, that it was made, as just stated, under a misappre-
hension of the previous history of the College, by no
means unnatural, and easily accounted for.
The entire abandonment of any further consideration of
the subject by both Boards is, as your Committee think,
very strong evidence that no such right was upon final
consideration believed to exist. Otherwise there seems to
be no reason why, after being thus solemnly and publicly
asserted, it should not have been persisted in ; especially
as the state of the College was such as to give to the
Overseers the entire advantage in any discussion of the
question, and a motive for pressing it, so far as the rela-
tive influence of the two Boards and the need of reform
were involved.
And this conclusion is strikingly confirmed by the pro-
ceedings of the two Boards, and especially by those of the
Overseers, upon the next agitation of the subject of sala-
ries, which took place in 1760,– proceedings which are
9
66 APPOINTMIENTS,
adduced by the Committee in their Report (pp. 18, 19) as
affording satisfactory, if not conclusive, proof of the valid-
ity of the claim which it is their object now to maintain.
How far the representation of these proceedings in the Re-
port corresponds with what your Committee believe to be
their real character and purport, and what may be their
just influence upon the question in hand, will be very care-
fully considered when examining the argument upon the
subject of salaries. They are referred to here only to show
that, at that time, the Overseers not only did not pretend
to any such claim of supervision or control over appoint-
ments made, or salaries established, under this third clause,
as is now attempted to be maintained, but expressly repu-
diated and disclaimed it.
Those proceedings embraced a Report then made to the
Overseers by a committee, the members of which are con-
sidered, by the authors of that now under consideration, so
eminently able to settle such a question, that their names
are set forth at large (Rep. pp. 18, 19) by way of giving
emphasis to its conclusions. That Report* is on file in the
College archives, with the Memorial of the Corporation f
in reply. The present Committee of the Board of Over-
seers state the fact that such a Report was made, with its
date and the day of its consideration, and the circumstance
that it was directed to be served upon the Corporation;–
they forbear, however, any citation or recital of its con-
tents. Had they attempted any, it would have appeared
that the Committee who prepared it, and the Overseers by
accepting it and sending it down to the Corporation, not
only wholly disavowed any authority to control or interfere
with appointments, or salaries made or established under
this third clause, which they particularly cite, but rested
their argument in favor of their right to such supervision
and control over the appointments and salaries of those in
the government of the College upon another clause, and
* Appendix, No. IV. f Appendix, No. V.
APPOINTMENTS. 67
with the express declaration that the third, which vested
exclusive power in the Corporation, applied only to certain
officers and servants other than those in the government of
the College, –“ and the choice of whom,” to use their own
language, “is in the Corporation, INDEPENDENT OF THE
Overse ERs.”
No disavowal or renunciation by the Overseers them-
selves of any claim of right to control or interfere with the
appointments made, or salaries established, by the Corpo-
ration, under the third clause of the Charter, more emphatic
and conclusive than this, can be imagined ; and yet this
Report constitutes a prominent portion of the evidence ad-
duced, and in the most confident manner, as entirely satis-
factory proof of the existence of such right. (Rep. pp.
18, 19.)
The next occasion on which the construction of this third
clause came in question was in 1778, in a controversy be-
tween the two Boards concerning the right of the Cor-
poration to elect a Steward without requiring the confir-
mation of the Overseers. And it is of a nature the more
decisive, as their respective powers in that respect were to
be determined solely by that clause. Hence it deserves
particular recital.
In November, 1778, upon the resignation of Jonathan
Hastings, Mr. Kneeland, a man of great worth, and well
qualified for the office in the opinion of the Corporation,
was by that Board appointed Steward; but his political
principles rendered his appointment objectionable to the
Overseers. They therefore, at their next meeting, passed
a vote declaring that his election “was disagreeable to this
Board, and that it be recommended to the Corporation to
reconsider said election, and proceed to the choice of some
other person for that office: the Overseers reserving to
themselves the right they have by the Charter, of approving
or negativing the election of a Steward made by the Cor-
poration.”
In December the Corporation met, and reconsidered their
68 APPOINTMIENTS.
appointment of Mr. Kneeland, and requested the former
Steward to resume his place until another should be chosen;
and passed a vote declaring “that the Corporation are of
opinion, that the claim advanced by the Overseers of a
right to approve or negative the election of a Steward made
by the Corporation has no foundation in the College Char-
ter, and is without precedent in any of the College records;
and that the President, Dr. Cooper, and Mr. Lathrop be a
committee to represent the sentiments of the Corporation
on this point to the Board of Overseers, and bring the mat-
ter to as amicable a decision as possible.”
At a meeting of the Overseers in the same month, they
adopted the following vote: “It being a matter in dispute
between the Corporation and Overseers, whether the elec-
tion of a College Steward ought to be presented to this
Board for their approbation, and the Board not being in
possession of the Charters by which this point ought to be
decided, it was voted that the Secretary be directed to de-
liver to the President of the Council, as soon as may be,
copies of the Charter granted by the General Court in the
year 1642, and of that granted in 1650, and of the Appen-
dix granted in 1657, for the inspection of the Overseers,
that they may be better able to discuss the matter in dis-
pute, and to come to a determination upon it, at the ad-
journment of this meeting.”
On the sixteenth of the same month, the adjourned meet-
ing was held; and it appears by the record, that, “after
some debate, it was moved that the previous question
should be put, Whether this Board have a right to a pre-
sentation of the person elected by the Corporation into the
office of Steward, for their approbation or disapprobation;
whereupon the previous question was moved, whether this
question shall now be put, — which being put, it passed in
the negative.”
The Corporation afterwards proceeded to elect a Steward,
without submitting the appointment to the Overseers for
their consent; and such has been the uniform practice ever
APPOINTMIENTS. 69
since; nor has this acknowledged right of the Corporation
ever been further questioned.
It will be observed that this question directly and neces-
sarily involved the construction of the third clause in the
Charter, and of its proviso; for whatever may be thought
of the power of the Corporation to elect officers of govern-
ment and instruction under it, no doubt can exist that the
election of a Steward is within its express provision.
We have, therefore, the well-considered and deliberate de-
cision of both Boards, – after a full examination of all the
Charters laid before that of the Overseers, “that they might
be better able to discuss the matter in dispute and come to
a determination upon it,” — that the proviso in that clause
gave them no power whatever over appointments made
under it. Nor is this all. It will be seen by reference to
the College records, that elections of officers other than
those of government and instruction, and which were con-
fessedly all appointed in exercise of the power given to the
Corporation by that clause, have never, or, if ever, with
very few exceptions, been presented to the Overseers for
their concurrence or disapproval; but that the Corporation
has uniformly exercised the sole power of making such ap-
pointments as exclusively its own, and unquestioned by the
Overseers. If that of the Librarian should be supposed to
be an exception, it will be found not to be one, inasmuch
as he was not thus presented by the Corporation before
1766; when he was invested with the authority of a tutor,
and thus became one of the Government.
And yet the learned Committee, in this elaborate Report,
representing that all powers of appointment to office pos-
sessed by the Corporation, including those of government
and instruction, are derived from this third clause, and
especially citing it to that effect (Rep. pp. 15, 16), maintain
that the proviso at its close applies to all such appoint-
ments, – as it plainly must, if to any, - and that mone can
be valid without the approval of the Overseers; and affirm
that “it has never been questioned by the Corporation, that
70 AP POINTMIENTS,
all such appointments or elections require the confirmation
of the Overseers.” Such a result of their investigations is
certainly a striking illustration of the truth of their remark
(Rep. p. 1) when alluding to the task imposed upon them,
that their constituents, in requiring its performance, could
hardly have been aware “how extensive was the field of
inquiry which the Committee were required to examine, or
how imperfectly the same had been previously explored.”
Your Committee therefore submit, with entire confi-
dence, that no proposition can be more clearly established,
upon the plain meaning of the Charter, and the well-con-
sidered, deliberate, and recorded construction of it by both
Boards, and their uniform practice under it, from the day of
its date, than that the proviso at the close of the third clause
has no reference whatever to the appointments to office, or
the establishment of the salaries, for which that clause pro-
vides. And if, therefore, all the powers of the Corporation
to make appointments to office in the College are derived
under that clause, – as the Committee assert, and by cita-
tion and argument attempt to maintain, – then the only
and whole foundation of their claim of any right on the
part of the Overseers, under the Charter, to have appoint-
ments presented for their confirmation or rejection, fails,
and is utterly swept from beneath their feet. Under the
Charter, the Corporation has the exclusive right to make
them, independently of any such approval or disapproval.
But although your Committee have no doubt that this is
the just and only view to be taken of the claim so made by
the Overseers, and that it has no such foundation as their
Committee appear to suppose, they are aware that the prac-
tice of the Corporation to send up for concurrence or rejection
all appointments to offices of government and instruction in
the College, and which appears to have obtained from the
earliest times, as has been before fully conceded, remains
to be explained. And it is believed that an explanation is
by no means difficult, and one which may lead not only
to a solution of this particular inquiry, but also to a just
AP POINTMENTS. 71
apprehension of the relative positions of the two Boards
upon this very important and delicate subject. -
There can be no doubt that the phraseology of the third
clause, taken by itself, would suffice to vest in the Corpo-
ration the power of appointment to all College offices what-
soever, required for government and instruction, and other
management of the institution and the ordering of its af.
fairs, excepting that of electing officers and members of its
own Board; and would also be sufficiently expansive to
embrace all that should become needful by the growing
exigencies of the College, as well as those contemplated at
the granting of the Charter. And your Committee, for
reasons hereinafter stated, concur in opinion with the Com-
mittee of the Overseers, that it is from this clause that the
Corporation derive the powers which they have exercised
and continue to exercise in making all such appointments.
If, however, no power had been expressly given by the
Charter to appoint officers and servants for the purposes
above mentioned, it would have been inherent in the Cor-
poration by force of law, as implied by necessity, for the
purpose of enabling it to accomplish the objects of its crea-
tion. In either case, however, it is clear that the Overseers
could have no power of supervision or control over such
appointments, because none is vested in them by their own
Charter, and no other clause in that of the Corporation,
or in the Appendix, has any reference to that subject but
the third, and this gives them no such power; and there
is no other source whence any such could be derived.
The difficulty has arisen, therefore, not from any insuf.
ficiency in the terms of this clause, taken alone, to embrace
all appointments to College offices, but from the restric-
tion put upon their general import by other expressions
in other parts of the Charter; from which the inference
has been drawn, that the words “officers and servants *
were intended to be used as descriptive of ministerial
agents, such as steward, librarian, janitor, and the like, as
contradistinguished from those composing the Government
72 APPOINTMENTS,
of the College; and there is certainly some reason for
thus believing that this distinction was then in the minds
of the framers of the Charter.
The first known suggestion of this construction is found
in the effort of the Overseers, alluded to above, to maintain
their claim of Supervision and control over the salaries of
the governors and instructors, in 1761; when they were
solicitous to get rid of the third clause, as being the source
of authority in the Corporation for their appointment, per-
ceiving, and expressly conceding, that, over elections and
salaries made and established under that clause, the Over-
seers had no supervision or control. They therefore sought
to show that it applied only to such ministerial agents, and
not to those employed in the government or instruction
of the College ; and rested their whole argument for any
such claim over appointments of the last-named officers
upon the hypothesis, that the power to confirm or negative
appointments involved that of regulating the salaries of
the appointees, and upon the fifth clause, which it cannot
be pretended has any the remotest bearing upon the sub-
ject of election to office.”
There is not, however, as your Committee know, or be-
lieve, any evidence whatever that the Corporation ever ac-
ceded to this construction; but, on the contrary, it appears,
as will presently be shown, that they have uniformly
maintained the exclusive right under the Charter of regu-
lating the salaries of all officers appointed by them, which
seems very strongly, if not conclusively, to imply that they
rested such power of appointment, excepting of members
of their own Board, upon the third clause ; and your Com-
mittee are not aware that they have ever attributed it to
any other source.
The origin and continuance of the practice of presenting
to the Overseers, for confirmation or rejection, appointments
by the Corporation to offices of government and instruc-
tion, is very satisfactorily accounted for in the history of
* See Appendix, No. IV.
AP POINTMENTS. 73
the College, without attempting to force the proviso in the
third clause into any such unnatural service, or seeking a
solution of the question in any other construction of the
Charter, if that were possible. When the Charter was
first granted, all who then held such offices were expressly
named in it as members of the Corporation, the appoint
ment of whose successors, by its terms, required the con-
currence of the Overseers;– and its framers probably did
not then contemplate such future increase in the number
of officers of instruction and government as would render
it impracticable or inconvenient thus to include them ; —
though the holding of such office was not made a neces-
sary qualification for such membership. The College was
then but a small seminary, the number of pupils never
having exceeded twenty-five, which continued the max-
imum for many years, the whole being under the charge
and instruction of Mr. Dunster, — by the Charter made
the first President, — and of perhaps two assistants, who
were made Associate Fellows, these three, with other per-
sons, constituting the first Board.
The vision of the magnitude, importance, and reputation
of the University, as it now exists, had not then presented
itself to the imagination of our fathers, any more than that
of the present population, wealth, and industrial and in-
tellectual pre-eminence of the Commonwealth which they
were at the same time founding, or than that of the ex-
tent, power, and political importance of the great nation
of which it was to become a member.
It appears by the records, that twenty-four years after-
wards, and when it must be presumed to have materially
increased, there were but three instructors beside the Presi-
dent ; nor does it appear that any addition to that number
was made for many succeeding years. Nor until the year
1711, sixty-one years after the grant of the Charter, does
there appear to have been any instance of the appointment
of an officer of government or instruction by the Corpora-
tion, who was not at the same time elected a member of
10
74 APPOINTMENTs.
the Corporation. The case of Mr. Whiting, who was a
tutor at the time of the reorganization of the Board in
1707, and not then made a member of it, constitutes no
exception, he having been appointed by the Governor dur-
ing the period when the Charter was erroneously supposed
to have been vacated by the repeal of that of the Colony,
and holding equal rank with the other officers appointed in
the same manner.
The first election by the Corporation of an instructor,
not at the same time chosen to a seat at its Board, was
that of Joseph Stevens, in 1711; – and it was sent up to
the Board of Overseers for their concurrence. It would
seem highly probable that this appointment was made
under the influence of the Governor and Overseers, who
enjoined upon the Corporation the manner of a formal in-
auguration, — showing an interest and participation in the
transaction much exceeding those of mere concurrence in
the election. Indeed, the slightest knowledge of the Col-
lege history of that period suffices to show that all real
power and control over the College were in the hands of
the Colonial government and of the Overseers, and not
exercised with a very scrupulous respect to the con-
stitutional rights of the Corporation ; so that, while no
question can reasonably arise as to the validity of their
claims to those powers which they were allowed to exer-
cise, very little weight is attributable to evidence arising
from the assumption of power and authority over them by
the them dominant party. Often no alternative was left to
the Corporation but acquiescence in this irresistible power,
though in some very important instances such acquiescence
was accompanied with direct or implied protests against
the usurpation.
Looking back, then, to the period of the first sixty years
after the granting of the Charter, we find a perfectly
clear and satisfactory account of the origin of the practice
of submitting appointments to offices of government and
instruction to the Overseers; — all such appointments hav-
APPoinTMENTs. 75
ing been at the same time to membership of the Corpora-
tion, and therefore, by the terms of the Charter, requiring
such submission. Under any circumstances the practice
would very naturally be afterwards followed, unquestioned,
in all such appointments, though not including such mem-
bership; but under those which characterized the next sev-
enty years, its continuance will be seen to have been at the
least most wise and expedient, if not absolutely unavoida-
ble, — considered altogether irrespectively of any obligation
on the part of the Corporation to adhere to it other than
on the ground of sound policy. ..
The nature of the influence and power of the persons
composing the Board of Overseers during the first century
and a quarter after the date of the Charter, over both the
College and the Colonial and Provincial Legislatures, has
been before alluded to ; but this was by no means the
greatest influence or power which that Board possessed.
For a long period of time the College officers were chiefly
maintained by grants from the Legislature, and the appro-
priation of them was committed to the Overseers; and the
disposition of some of the earliest and most important
donations of money to the College was in like manner
placed in their hands. Thus they had at one time not
only the weight of unlimited personal and political influ-
ence and authority, but also held the purse-strings of the
College, and the sole power of appointing allowances.
During the first seventy years of the existence of the Col-
lege, “its officers were dependent for daily bread upon the
bounty of the General Court. They always stood before
the Court in the attitude of humble suppliants, destitute of
the power even to enforce their rights; and found, by
bitter experience, how miserable is he who hangs on a
sovereign's favor, be that sovereign one or many, prince
or people.” And for the next sixty years or more, the
College was mainly dependent upon grants of the General
Court for means to pay the salaries of the President and
Professors. It was therefore obviously mot only natural,
rºy
76 APPOINTMENTS.
but unavoidable, that the pleasure of so powerful a body
as the Overseers, in itself closely connected with the Col-
lege, and possessing controlling influence in the Legis-
lature, should be made essential to acts of such impor-
tance as the appointment of officers of government and
instruction; the number of whom at the breaking out of
the Revolutionary war amounted to seven beside the
President, Treasurer, and Librarian, there being then but
three Professors and four Tutors.
Another series of appointments to offices of government
and instruction requiring the confirmation of the Over-
seers, for a reason wholly independent of any constitu-
tional obligation or claim of right springing from the
Charters, commencing with the first establishment of pro-
fessorships, and continuing to the present time, contributed
no less effectively to constitute such presentation to them
a received and uniform practice. In nearly all the foun-
dations of professorships, such subjection by the Corpora-
tion of the appointment of the proposed incumbent to the
concurrence or disapproval of the Overseers was required
in express terms. Such was the case in the foundation of
the first professorships established, - that of Divinity by
Mr. Hollis, in 1722, and that of Mathematics and Natural
Philosophy, by the same distinguished benefactor, in 1726;
also in the foundation of the Boylston Professorship of
Rhetoric and Oratory, in 1772; in that of the Alford Pro-
fessorship of Natural Religion, Moral Philosophy, and
Civil Polity, in 1789; in that of the Massachusetts Pro-
fessorship of Natural History, in 1805; in that of the Eliot
Professorship of Greek Literature, in 1814; in that of the
Rumford Professorship on the Application of Science to
the Useful Arts, in 1814. Even in those where the found-
ers had not made this provision, the Corporation, in
establishing statutes and rules for their foundation and
government, either made the appointment of the Professor
expressly subject to the consent of the Overseers, or im-
pliedly so by a provision that he should be chosen in the
APPOINTMIENTS. 77
same manner in which other officers of the College were
chosen. So that very nearly all the appointments to pro-
fessorships have been thus submitted in accordance with
the express requisitions of the founders of these professor-
ships, and the others by votes of the Corporation volun-
tarily adopting the same mode as their organic law. All
elections, therefore, to these chief offices of government
and instruction are thus plainly and clearly accounted for,
independently and exclusively of any legal obligation on
the part of the Corporation so to present them for confir-
mation, or of any right on the part of the Overseers to de-
mand such presentation, founded in the Charters, or in the
legal constitution of the College.
When, therefore, it is seen that all the tutors in the early
stages of the College history were members of the Corpo-
ration, whose election therefore was of necessity submitted
to the approval of the Overseers, – and that all the first
and nearly all the succeeding professors were appointed
on foundations requiring such submission, and all the rest
under statutes providing for it, — the fact that all other
tutors and newly appointed officers of instruction should
be also so presented, in conformity with this long-estab-
lished practice, is sufficiently explained, without resorting
to forced, novel constructions of the Charters, or to any
other sources of the authority thus exercised by the Over-
SeeTS.
In these views taken by your Committee of this subject,
it may perhaps be immaterial to decide whether the power
of appointments to offices of government and instruction
is vested in the Corporation by virtue of the third clause
of the Charter of 1650, or by legal implication from the
necessity of such authority in order to accomplish the ends
for which it was created ; as in either case it is believed to
be clear, for the reasons above given, that the Overseers
can have no legal right of supervision or control over ap-
pointments made by virtue of authority derived from either
source. But your Committee, as before suggested, are of
7S -
( > APPG INTMENTS,
opinion that such power is derived from the third clause ;
and are happy in this to find a subject of concurrence in
the opinions expressed by the Committee of the Overseers.
There can be no question, that the language of that clause
is not only broad enough to cover all such appointments,
but that such would be its natural and ordinary interpre-
tation ; and that it is only by a critical collation of it with
other parts of the Charter that any limitation of its terms
can be inferred.
It may be, and indeed is not improbable, that the framers
of the Charter presumed, at the time, that all such officers
would be included within the Corporation, and that the
third clause would be applied only to the appointment of
ministerial agents of the character above suggested; and
furthermore, that if the idea had occurred to them of such
an increase of the institution as should require a greater
number of officers of instruction and government, they
would have provided for the submission of their appoint-
ment to the Overseers. It does not, however, by any
means follow, that the construction of the Charter of an
institution for education, intended to be permanent, and in
its nature susceptible of indefinite enlargement, is to be
controlled by the precise ideas or anticipations which may
be supposed to have been in the minds of its authors,
when language is used, and provisions are made, in them-
selves wholly unequivocal and clear, and far more compre-
hensive than those precise ideas and anticipations could
require, and sufficient to embrace, and seemingly intended
to provide for, all future emergencies; nor by the mere
probability that they inadvertently, or through want of
foresight, omitted a provision which they would other-
wise have inserted. It is certain that they intended, by
this clause, to provide for appointments to office to be
made by the Corporation ; and that its language clearly,
and in its ordinary natural import, extends to all appoint-
ments to office of every kind; and that there is no other
provision in the Charter giving any such power, excepting
APPOINTMENTS. - 79
that of election of members of its own Board. Now it
seems incredible, not to say absurd, to suppose that they
would take the precaution thus expressly and carefully to
provide for a few officers only, and those of inferior grade
and importance, and leave those upon whom the whole
welfare and prosperity of the institution would mainly
depend wholly unprovided for. Hence the reasonable in-
ference would seem to be, that they intended by this
clause to vest in the Corporation full power to make all
such appointments as the emergencies of the College
might from time to time require, whether more or less,
and whether the same with or differing from those them
anticipated to be needful.
A question here presents itself, how far the Overseers
have acquired the legal right of such supervision and con-
trol over appointments, in cases where the Corporation —
in instituting professorships or other offices of instruction
or government upon foundations not requiring such submis-
sion, or upon grants or appropriations made from the gen-
eral funds of the College — has, by the statutes establishing
them, or the rules and orders concerning them, provided
for such presentation to the Overseers; instances of which
may be found in several of the professorships, in the estab-
lishment of the office of proctor in 1805, and in other cases.
And your Committee are of opinion, that no such legal
right exists in the Overseers, independently of the concur-
rent will of the Corporation, which may, so far as such
duty of presentation is concerned, repeal such statutes,
orders, or rules at any time, if such repeal be warranted by
any exigency demanding it for the welfare of the College.
With regard to statutes, rules, orders, and by-laws,
which, by the Charter, are required to be submitted to
the Overseers, and which have been so submitted and
approved, and do not suppress, restrain, or limit the exer-
cise of the exclusive powers vested in the Corporation by
the Charter, your Committee are of opinion that they
are irrepealable but by the consent of both Boards. But
S0 - APPOINTMENTS.
in regard to any, whereby the Corporation should under-
take absolutely to divest itself of any power or authority,
the duty of exercising which is by the Charter imposed
exclusively upon it, or to submit its exercise to the control
Or will of any other person or body, your Committee are
clearly of opinion, that it would be an unwarrantable dere-
liction of its duty and a breach of the trust confided to it.
The relative rights, powers, and duties of the two Boards
must be found in their Charters. When accepted, these
constituted a binding contract between the government and
the College, and all who have been, or shall become, its
benefactors in donations for its benefit, and upon the faith
of which all its estates were acquired and are held; and
the various powers thus vested in each department are held
upon the same solemn trusts, and can no more be parted
with by either, or delegated to others, than can the posses-
sion and administration of those estates. The Corpora-
tion has no more legal or justifiable excuse for surrender-
ing the powers thus derived, or for acquiescing in any
limitation of them, than the Overseers have for usurping
them, or for parting with their own. Nor can the two
Boards unitedly vary their legal relations to each other, or
take from or vest in either any trust, power, or responsibil-
ity not by the Charter authorized to be so taken or vested.
At the same time, however, the Overseers are the con-
stituted advisers of the Corporation, to whom they have
the right to apply for counsel and aid in all cases of mag-
nitude, and among which appointments to important offi-
ces may be justly ranked. The whole history of the Col-
lege shows with what a willing disposition the Corporation
has availed itself of this privilege; and acquiesced in the
determination of all questions thus submitted. And it is
to be hoped that this reliance may never be weakened, and
its manifestations never diminished.
These cases, therefore, in the opinion of your Commit-
tee, are properly to be considered as those of voluntary sub-
mission by the Corporation of appointments to the Over-
APPOINTMIENTS. S1
seers for their counsel and advice;—it being within the
chartered right of the one to ask, and part of the corre-
sponding obligation of the other to give, when asked, such
counsel and advice, and also as lawful and as proper to
establish a continuing general rule for the asking of such
advice in each case, or class of cases, as it would be to
make each a subject of particular enactment. But no such
rule could be of legal obligation to control the Corporation
in the exercise of its exclusive right of appointment, or to
prevent the repeal of the rule, if circumstances should arise
which, in the exercise of an honest judgment and sound
discretion, should render it the duty of the Corporation to
withhold such presentation.
After this full exposition of their views of the respective
legal rights and duties of the two Boards upon this most
delicate and important subject, your Committee are unwill-
ing to leave it without a full and frank statement of their
convictions, in which they doubt not to have the concur-
rence of every member of this Board, that the practice
which has hitherto prevailed of such submission to the
Overseers of all appointments to offices of government and
instruction is one founded in the wisest policy, and should
be adhered to so long as it may be with any just sense of
duty or self-respect on the part of the Corporation. It not
only has the sanction of antiquity coeval with the chartered
existence of the College, but is of great moment as a safe-
guard against appointments from interested or private mo-
tives; and invests the Officers thus confirmed with a sense
of public responsibility, and with dignity and authority of
great value in establishing effective influence over the schol-
ars and in elevating the character of the institution. No
case, therefore, of a mere sense of injustice on the part of the
Overseers towards the Corporation, in reference to the mo-
tives or views of its members in making an appointment;
nor any mere diversity of opinion upon the qualifications
of the candidate, however clear may be their conviction of
their superior means of judgment; nor any belief of mis-
11.
S2 APPOINTMENTS.
apprehension and error only in his rejection, — nothing,
indeed, falling short of an inevitable conviction on the part
of the Corporation of oppression, and of permanent injury
to the College, or to their constitutional authority under
the Charter, — should ever induce a departure from it.
In connection with this subject of appointments, the
Committee were pleased to make the following remarks:
“It has been a frequent practice, when a new professorship
or other office is established by the Corporation, for them
to send a record of their action on the subject to this Board,
and at the same time present a vote appointing on their
part some person to fill the office. This is deemed by the
Committee an irregularity, and may be a source of much
embarrassment and difficulty. The Committee therefore
trust the Corporation will not hereafter proceed to an elec-
tion to fill an office till its establishment has received the
approval of this Board.” (Rep. p. 14.) It is not added, that
any appointment thus sent up was ever objected to on that
account, nor could it be so said, with the exception of the
case of the Plummer Professorship in 1855, when a like ob-
jection was suggested.
Upon reference, however, to the history of the College, it
will be found that this has not only been a frequent prac-
tice, as the Committee admit, but that it has obtained in
a majority of cases ever since the establishment of the Col-
lege, beginning with the first three professorships; and that
the Board of Overseers, by the vote of February 13, 1834,
above referred to, recognize it as a proper mode of proce-
dure. If, therefore, it be an irregularity, which seems im-
possible under these circumstances, it is one for which both
Boards seem equally accountable.
It is obvious that no rule can be prescribed by the Over-
seers to regulate the proceedings of the Corporation upon
this or any other subject, whether in the form of an order
or by-law, or by the expression of any general opinion.
The Corporation, in presenting appointments for confirma-
tion, must exercise their own judgment and discretion as
• Y
SALARIES. 83
to the most suitable time and manner; but will of course
be always disposed to adopt those which the emergency
and due respect for the convenience and pleasure of the
Board of Overseers may seem to require. And if, in any
instance, the time should seem to the latter not well chosen,
or the manner liable to objection, or as tending to embar-
rassment, they have the power to withhold or defer their
consent; and no imputation of irregularity can with pro-
priety be said to rest upon either Board, in such exercise
of its power according to its sense of duty.
SALARIES.
The next subject presented for consideration is that of
salaries, and one to which the Committee of the Overseers
seem to have attached peculiar interest and importance, as
it occupies eleven out of the twenty-seven pages of their
Report, and appears to have been the occasion of the most
elaborate of their efforts in the way of historical develop-
ment.
Your Committee concur in this opinion of its impor-
tance; for if there be one subject more than any other which
they think should be especially and exclusively confided to
a body of men so small, and therefore standing so promi-
mently before the public, in the guardianship of one of its
greatest and most important institutions, as to make each
as it were individually and alone responsible for its doings;
and holding their office permanently and independently of
popular election; by habits and pursuit in life accustomed
to the administration of affairs; and by residence and fa-
miliar acquaintance with persons and employments in the
College, and by the duty of unceasing supervision over all
its concerns having every opportunity of acquiring accurate
knowledge of the peculiar fitness of the compensation for
the service performed, and of the competency of the funds
for the occasion, — that subject is salaries. And more es-
S4 SALARIES.
pecially does this appear to them to be so, in the remem-
brance that a very large portion of those which they have
to determine are derived from donations given as their pe-
culiar sources, and for the faithful appropriation of which
the Corporation is alone legally responsible. It seems to
your Committee that it would be an anomaly no less in
wisdom and equity than in jurisprudence, to subject those
who are alone legally answerable for the due appropriation
of funds to the absolute control of those who are under
no legal liability whatever concerning them.
The learned Committee not only appear to have been
elaborate in their researches, but have sought to strengthen
their position by the most unqualified and confident asser-
tion of the unquestionable character of their claims; so that
if the matter in hand were to be thus decided, it is settled
beyond possibility of appeal. Thus, after some preceding
statements, to be presently examined, assuming as unques-
tionable their claims of confirmation or supervision as es-
sential to the validity of the grant of any salary, they say
(Rep. pp. 16, 17): “But it may be regarded as A MATTER
FREE FROM ALL DOUBT, that if no clause of said Act [the
Appendix] applies to salaries, then all votes or orders on that
subject REQUIRE THE CONFIRMATION OF THE OVERSEERs, As
IT IS PROVIDED IN THE CHARTER ; but if any provision of
said Supplementary Act does embrace votes or orders
respecting salaries, (which is understood to be the opinion
of some members of the legal profession,) then as to all
such votes or orders the Overseers CLEARLY HAVE THE
RIGHT OF REVISION.” Again (p. 17): “ Notwithstanding
the confidence of the Committee in the doctrine above
stated, YET, AS THEY ARE DESIRous of AvoidING EVERY Pos-
sIBILITY of MISTAKE IN such A GASE, and as some persons
MAY HAVE DOUBTS WHICH IT IS DESIRABLE SHOULD BE RE-
Moved, the Committee have examined the records of the
Overseers since the year 1707,” &c., &c. -
It may seem highly presumptuous in your Committee
to express any distrust of the accuracy of conclusions thus
SALARIES. 85
confidently stated. But still, as they not only have such
distrust, but as a like course of investigation has led to an
entirely opposite result in their own minds, and one at
least of honest and deeply settled conviction, if not enter-
tained or to be avowed with equal confidence, they trust
for indulgence in a somewhat careful and extended exposi-
tion of the grounds of their belief.
And here again they deem it subject of no slight grati-
fication and importance, that the learned Committee of the
Overseers have not only clearly and fully stated the ground
of their claims, but have also carefully and elaborately set
forth their argument and historical reliances, so that the
whole field of their exploration may be traversed, and the
fruits of their researches justly weighed and measured.
Encouragement as to the future, it is also hoped, may be
derived from the consideration of the eminent ability and
thoroughness with which they have conducted this branch
of the investigation. The field of inquiry and argument,
at least on their side, may be considered as exhausted, and
the agitating questions calling for such efforts are now in
the way to be finally put at rest, on whichsoever side the
truth shall be found.
The Committee commence their argument (Rep. p. 15)
with this statement: —“It is provided in the Charter, in
substance, as appears in the passage hereinabove cited, that
the Corporation may meet and make such allowances to
the College officers and servants as they shall think fit;
provided, their orders or doings on the subject shall be
allowed by the Overseers. This provision is contained in
the very section or part of the Act in which the matter of
appointments is regulated, and that too by the same phra-
Seology as is used touching salaries; and it has never been
questioned by the Corporation, that all such appointments
or elections require the confirmation of the Overseers.”
The “passage hereinabove cited,” thus referred to, is the
third clause in the Charter, cited on the fifth page of
their Report, and also above (pp. 17, 18). The statement
86 SALARIES.
they here give of that clause seems distinctly to represent,
that the proviso in it contains the words “ or doings” as
well as the word “ orders,” and would naturally be under-
stood to imply that the clause related only to appoint-
ments to office and allowances to officers and servants.
But the slightest reference to it will show that no such
words as “ or doings” are there to be found; and that it
embraces other subjects than appointments and allowances,
to which the proviso certainly may exclusively relate. It
must therefore be presumed, that the introduction of these
words “ or doings” must have been intended to be used
as explanatory of the word “orders,” or as synonymous
with it. -
Before proceeding to examine the position thus taken,
your Committee desire to enter their respectful but earnest
protest against the manner in which the proviso in that
third clause is uniformly described, in every instance in
which it is referred to in the Report; for however hon-
estly expressive of its sense as entertained by the Commit-
tee of the Overseers, it is, to say the least, an arbitrary as-
sumption of its meaning, and one which your Committee
believe they have proved to be erroneous; and which cer-
tainly is calculated to mislead those who may rely upon
these statements, instead of examining the Charter for
themselves. - -
That proviso is in these simple words: “provided the said
orders be allowed by the Overseers.” And the chief ques-
tions now in issue depend entirely upon the meaning of
that word “ orders” as there used;— the Committee of the
Overseers assuming that it extends to appointments and
salaries, while your Committee believe they have demon-
strated that it should be confined to statutes, rules, and by-
laws. To give to it, therefore, either meaning by descrip-
tive adjuncts, or to attach to it assumed synonymes, when
referring to it as a basis of argument, is not only to beg
the whole question in controversy, but necessarily to mis-
lead those who may rely upon such expressions as an ac-
SALARIES. 87
Curate account of it. Your Committee cannot but attach
importance to this feature in the Report, since they can
bear testimony to the great impression made upon their
own minds, and upon those of others, on its first perusal,
by this mode of referring to that proviso, no question then
arising that this manner of citation afforded an accurate
description of it.
The first attempt thus to enlarge the meaning of the
word “orders,” or rather to give an entirely new meaning
to it, is found on page 8, where the Committee, in un-
dertaking to recite the proviso at the close of the first
clause of the Appendix, — and which is in these words:
“Provided also that the Corporation shall be responsible
unto, and those orders and by-laws shall be alterable by,
the Overseers according to their discretion,” — substitute
the words “votes or doings ’’ for orders and by-laws, as
if they were precisely synonymous. The next occurs on
page 9, where the word “votes" is used in conjunction, and
as meaning the same, with “orders.” The next is on page
14, where appointments to office are represented as “or-
ders.” And another on page 15, where, in undertaking
to quote the third clause, they attach the words “ or do-
ings” to the word “orders,” as being synonymous with it,
for the purpose of making it appear clearly to extend to
appointments and salaries. Again, on pages 16 and 17,
the word “votes” is repeatedly attached to the word “or-
ders,” or the latter to the former, as if they were synony-
mous terms, and so to be considered in construing the
Charter. -
Your Committee believe that any such use of the word
“ orders” is not only entirely unauthorized by the obvious
meaning of it in the proviso under consideration, and op-
posed to the whole context of the Charter, but also to all
use of that word in the early records of both Boards; it
being, as they believe, uniformly used to designate statutes,
rules, or by-laws, and never as describing appointments to
office, establishment of salaries, and the like. But whether
88 SALARITES.
this be so or not, it is manifest that to assume, throughout
the discussion, that it contains, and constantly to describe
it as containing, a meaning the truth of which is the sole
subject of argument, can have no tendency to throw light
on that argument, may, can hardly fail to prejudice the in-
quirer, however honest, entire, or enlightened may be the
conviction that leads to such assumption.
It is then wholly upon this third clause, and the proviso
at the close of it thus construed, that the Committee of
the Overseers rest the claims of that Board to supervise
and control the establishment of all salaries of College of.
ficers or servants. They indeed state (Rep. p. 16) that, in
the opinion of some members of the legal profession, the
Appendix has some application to the subject; but they do
not represent it to be so in their own, nor give to that in-
strument, if it does apply, any greater efficacy than to sub-
stitute a right of revision for that of confirmation, required,
as they say, by the Charter of 1650, − making that the
whole basis of their present claim.
Your Committee have above stated their views concern-
ing this clause and proviso, when considering the legal
construction of the Charter, and their bearings upon the
subject of appointments ; and have nothing to add further,
except to repeat, that, upon the clear and unambiguous
meaning of that clause and proviso, as they read them, and
upon the historical evidence which they have already above
adduced of the uniform practice of both Boards under
them, and the recorded full expression by both of their in-
terpretation of them, that proviso has no reference what-
soever to the establishment of any salary made under
authority of the clause to which it is attached. On this
subject they have only to refer to their views as above
stated (pp. 21–23, and 61–70), and to the evidence there
offered of the entire mistake under which the Committee
of the Overseers were laboring when they asserted that “it
has never been questioned by the Corporation, that all
such appointments or elections require the confirmation of
the Overseers.” (Rep. p. 15.)
SAIL ARIES, S9
But this Committee go much further, and, assuming thus
erroneously that such had always been the unquestioned
construction of this clause by the Corporation, and desiring
to account for a practice not in unison with it, they go on
to say: “But the Corporation has, on some occasions, par-
ticularly during a considerable period immediately preced-
ing the year 1761, pursued a course which indicated that
tn their opinion they could, by virtue of the said Appendia, to
the Charter, prescribe salaries for the College servants by
votes or orders, which went into operation without the con-
firmation of the same by the Overseers.” (Rep. pp. 15, 16.)
What particular means the Committee have had of as-
certaining the opinions of members of the Corporation
upon that subject before the year 1761, or on what basis of
reasoning or analysis they arrive at the conclusion, that its
members were influenced in the course they pursued con-
cerning salaries by any such construction of the Appendix,
your Committee are utterly ignorant; but they must be
allowed to express their entire disbelief in the correct-
ness of any such inference from anything known to them.
Moreover, as the same course has been pursued by the
Corporation for the past forty years or more, they may be
permitted to add, that, so far as they know the views of
their predecessors, and so far as they know their own, they
have never heard of or entertained any such opinion as
the reason for pursuing that course, but have ever followed
it in full belief that it is that which the Charter itself pre-
scribes.
These preliminary matters being disposed of, which
seemed to demand consideration from the manner in which
they are introduced into the Report, and the eminent au-
thority thus apparently given to them, your Committee
proceed to the examination of the historical evidence ad-
duced by the Committee for the purpose “ of avoiding
every possibility of mistake in such a case,” and removing
any doubts which any persons may have, concerning the
right which they thus claim.
12
90 SALARIES.
Your Committee, however, cannot think, that, if histori-
cal evidence is to be resorted to, the examination should
commence with the year 1707, the time selected by the
Committee in their Report, — being a period of fifty-seven
years after the date of the Charter; or that the records of
the Overseers are the only evidence to be adduced upon such
a subject, as they seem to believe. They say (Rep. p. 17),
that they “ have no means of knowing what the practice
was from 1657, the time of the enactment of the Appen-
dix, to the year 1707; and mothing appears on the subject
in the records of the Overseers till about 1722”; — yet it
would seem (Rep. p. 6) that the Committee must have had
means of familiar knowledge of the proceedings of both
Boards in the interval between the granting of the Charter
in 1650 and of the Appendix in 1657. At any rate, there
are sources of information which were open to them, and,
as they admit, freely at their command, in the records of
the Corporation, and also in those of the General Court,
which, as your Committee believe, throw much light upon
the subject, and may perhaps lead to a different and a bet-
ter apprehension of the later events above noticed by the
Committee of the Overseers. The latter seem indeed ut-
terly to ignore all that took place before 1722, a period of
seventy-two years from the granting of the Charter; and
they also virtually dispose in the same manner of the sub-
sequent thirty-eight years, dismissing them with the pass-
ing notice, that “the right of the Overseers to revise the
votes of the Corporation as to salaries, was at divers times
in the course of them agitated"; that in a few instances
the votes of the Corporation making allowances to instruc-
tors were presented to the Overseers, and that at several
times calls were made on the Corporation for such votes,
in which case they were “always promptly ’’ presented
(Rep. p. 18); — thus leaving the inference, that there
were few if any instances in which the Corporation had
appointed salaries without submitting them to the Overseers
for confirmation. .
SALARIES. 91
It would seem reasonable to expect that the proceedings
of the two Boards upon any subject, involving their rela-
tive constitutional rights and obligations, for the first period
of one hundred and eleven years after their establishment,
would be particularly instructive as regards their mutual
understanding, and the legal nature, of those rights and ob-
ligations. Accordingly, this entire omission of any refer-
ence to their number or nature would naturally lead one
to suppose that very few or none had ever taken place; or
that all which had taken place were so unimportant as to
be entitled to no consideration in such an investigation.
It is very true that the acts of the Boards illustrative of
this subject were, in the early history of the College, fewer
than they otherwise would have been, by reason of its de-
pendence upon the General Court for pecuniary aid, and
of the disposition of that body to place the distribution of
its grants in the hands of the Overseers, as above stated.
But even in the earliest times, there were many, and of
more emphatic significance in this inquiry, in consideration
of the irresistible power of that Board during those times,
and of the corresponding extreme improbability that the
Corporation would venture upon the assumption or exer-
cise of any questionable right or authority. And in later
periods, prior to 1761, they were of a frequency and im-
portance which render this omission of reference to them
wholly unaccountable in the minds of your Committee,
otherwise than by supposing that the learned Committee
of the Overseers, adopting the interpretation given by them
to the proceedings of that year as unquestionably true, con-
sidered them as so conclusive upon the whole matter as to
render all preceding investigations superfluous. But your
Committee, entertaining a totally different view of those
proceedings, and believing that a knowledge of the ante-
cedent history of the two Boards on this topic is essential
to a correct decision of the questions in hand, beg leave to
present it for consideration.
From the year 1650, the date of the Charter, until the
92 SALARIES.
year 1657, the date of the Appendix, there is nothing
known to your Committee, upon the records of either
Board, bearing upon the question. Were it not for the
evidence which the learned Committee seem to have had,
but which is not disclosed, that the College was acting
under its Charter during that period, and that it was owing
to great delay and inconvenience incurred in the managing
of its affairs under the provisions of that statute that the
Appendix was granted (Rep. p. 6), your Committee would
have inclined to the belief, that no organization of the Board
took place until the enactment of the Appendix, in 1657.
But assuming the position taken in the Report to be
correct, the first proceeding which may be supposed to
throw light upon the subject under discussion was an act
passed by the General Court, in September, 1653, appoint-
ing a committee of inquiry into the affairs of the College,
consisting of some of its own members and some of the
Overseers. It appears that, “on perusal of the return of
the committee, the General Court judged that all the Col-
lege funds should be committed to the care and trust of the
Overseers,”—“the several yearly allowances of the said
President and Fellows to be proportioned as the said Over-
seers shall determine concerning the same.” This pro-
cedure was for the purpose of forcing the resignation, or
effecting the removal, of the worthy and devoted first Pres-
ident, whose services and sacrifices for the College will
ever be held in grateful remembrance by its Alumni, how-
ever appreciated by his contemporaries. He had made
himself obnoxious to the distrust and ill-will of the ruling
powers by a departure from their faith upon the subject of
infant baptism. The motives and nature of the procedure,
and the constitutionality of it, if the Corporation then had
an organized existence, are not matters for comment here.
But it is evidence tending to show, that up to that time
the funds had been in the hands of the Corporation, if Or-
ganized; and that the Overseers had not, by virtue of their
office, any control over the apportionment of the several
SALARIES. 93
yearly allowances of the President and Fellows, and that
their consent had not been esteemed necessary for their
validity. And this inference is much strengthened by a
letter of the venerable President, written soon afterwards
on resigning his office, in which he touchingly complains
of the proceedings of the General Court, as being destruc-
tive of the former laws and orders under which the College
had been managed.
By that act, it will be perceived that its funds were
placed in the hands of the Overseers. In 1654 an annual
grant was made of one hundred pounds out of “the County
rate to the College,” to be distributed “between the President
and Fellows, according to the determination of the Overseers
of the College.” No doubt can exist of the right of the
General Court thus to regulate the distribution of its own
bounty. But it is obvious that no such precaution could
be thought needful, if the consent of the Overseers was, by
force of the Charter, indispensable to the validity of any
such distribution. This grant was continued for many
years subsequently to 1657, the date of the Appendix. In
1669 a donation was made by inhabitants of Portsmouth,
enabling that town to pledge the payment of £ 60 a year
for seven years ensuing, “to be improved by the Overseers
of the College for the advancement of good literature
there.” Other donations, it is also believed, were given in
like manner. And we find, accordingly, that the Overseers,
thus having the chief funds at their disposal, frequently
made appropriations of allowances to Fellows, and stu-
dents, and inferior officers, without any action of the Cor-
poration upon them. In September, 1670, the Corporation
voted “to speak to ” the Overseers for the enlarging of
the Butler's stipend.
In February, 1673, they voted that an account of the sal-
aries of two of the Fellows (no doubt instructors) be pre-
sented to the Overseers, that “further establishment may
be made for the encouragement of the Fellows.” If the
consent of the Overseers had been considered necessary, it
94 SALARIES.
must have been given when those salaries were established;
and no account of them, therefore, could have been needed
for the purpose stated.
In January, 1673, the Overseers voted to pay Dr. Leon-
ard Hoar f 100 towards his transportation to this country.
These votes sufficiently show that during that period the
Overseers had funds under their control, and which they
appropriated, entirely independently of any possession or
agency on the part of the Corporation. At the same time,
however, it appears that the Corporation had the exclusive
appropriation and control of the moneys held by the Col-
lege in its own right, and the distribution of which had not
been placed by the donors in the hands of the Overseers;
and appropriated them to payment of salaries, without any
submission of such allowances to the Overseers, or any at-
tempt on their part to interfere with them.
Such appointments of salaries were made in July and
October, 1679; in April, 1682; in December, 1683; in Oc-
tober, 1684; in July and September, 1685; and at several
other times before 1685 the Corporation had made grants
or allowances to some of the Fellows for services. But no
such appointment, grant, or allowance appears ever to have
been submitted to the Overseers, or acted upon by them ;
although throughout this same period the elections of
Fellows and all by-laws were duly so submitted, and are
stated so to have been upon the records of the Corpora-
tion; – leaving no room for doubt, that, if the appoint-
ments, grants, and allowances had been thus submitted,
that fact would also have been in like manner recorded.
From the year 1685 to the year 1722, a period of thirty-
seven years, the Corporation annually granted salaries to
College officers, and in no instance was one such grant sub-
ſmitted to the Overseers.
It is, therefore, established beyond dispute, if your Com-
mittee are correct in their belief and statement of these
facts, that, for the first seventy-two years after the granting
of the Charter, — during which time numerous instances
SA LARIES, 95
occurred of grants of salaries by the Corporation to all the
officers of the College, and for half of which time such
grants were made annually, - not an instance can be found
of the submission of any one to the Overseers for their con-
firmation or rejection, or of any claim made by them of
right to have them thus submitted. And when it is con-
sidered that during all this period the Board of Overseers
was composed of some of the most powerful and promi-
ment men in the Colony, and that acts of severity, if not of
oppression, on their part, and on the part of the General
Court, towards the Corporation, as a comparatively very
humble body, had been occasionally committed, your Com-
mittee are at a loss to imagine proof more entire and satis-
factory of the true construction of the Charters on this
subject, so far as the understanding and intentions of the
framers of them, and of their immediate successors, and
their practice under them, can be accounted legitimate evi-
dence of sound interpretation. Nor can they comprehend
how it was that the Committee of the Overseers had “no
means of knowing what the practice was from 1657, the
time of the enactment of the Appendix, to the year 1707.”
(Rep. p. 17.)
Having thus, as your Committee think, shown a clear,
uniform, and established practice, down to the year 1722,
wholly adverse to the claim now made by the Overseers,
they come to the period when the question was first raised
of their power over salaries; though the one then agitated
was not, as the Committee of the Overseers seem to think,
the same as that now in discussion, — of a general power
over salaries, – but one of a limited and especial nature.
The nature of that procedure has been necessarily an-
ticipated above, in treating of the subject of appointments
(pp. 62–64). It was an effort on the part of enemies of
the Corporation in the Board of Overseers to drive from
office the President and three of the Fellows, who were ob-
noxious to their displeasure from the party differences and
jealousies of those times. And the mode adopted was by
96 SALARIES.
procuring three resolutions to be adopted by the General
Court; one declaratory of the intent of the Charter, as re-
Quiring that the officers of government and instruction
should be the Fellows of the Corporation, not exceeding
five in number; the second, “that none of said Fellows be
Overseers”; and the third, that “the President and Fel-
lows of the said College, or the major part of them, are
not warranted to fix or establish any salary or allowance
for their service, without the approbation and consent of the
Overseers.” The first, if prevailing, would have removed
all the obnoxious Fellows, they not being instructors; and
the third would have placed it in the power of the Over-
seers to remove the President at will, by giving them the
entire power of withholding any salary from him, or allow-
ing such only, and on such terms, as should render it im-
possible or derogatory for him to retain his office. Such
power over the establishment of salaries would, in truth,
give absolute authority over all the officers of the Corpora-
tion and of the College receiving salaries for their services.
As above shown (p. 63), no pretence was then made of
any right on the part of the Overseers to interfere with or
control the establishment of the salaries of any officers or
servants appointed by the Corporation under the third
clause of the Charter; but only of those in its own Board.
This movement, therefore, made at that time, and with
such motives, and under such circumstances, not only af-
fords, as your Committee believe, the strongest possible
evidence that no such pretence was then entertained by
the Overseers, but is also to be regarded as a distinct ad-
mission that the claim now made, of general power of
supervision and control over salaries, under that clause,
is entirely without any just foundation.
If the resolves had been concurred in by the Governor
and Council, they obviously could have been of no legal
validity, as the exposition of the intent and meaning of
charters belongs not to the legislative or executive, but
to the judicial department of the government. Those re-
SALARIES. 97
solves, being non-concurred in by the Council, after a hear-
ing granted to the Corporation which had been denied by
the House, were never afterwards heard of; and the Corpora-
tion went on, as before, annually voting the salaries of Col-
lege officers, without submitting these votes to the Overseers,
or any pretence of claim on their part to have them so sub-
mitted, until the year 1732, — another period of ten years.
In the mean time, in December, 1722, the Overseers recom-
mended to the Corporation that they should make a gratuity
to Mr. Flynt (a tutor) for his past services as clerk of the
Overseers, and settle a salary upon him for the future; and
a vote was accordingly passed and concurred in by their
Board.
In June, 1722 and 1723, votes of the Corporation ap-
pointing Mr. Judah Monis an Instructor in Hebrew, with a
salary of eighty pounds, were sent up for concurrence, and
approved. In a few instances the Overseers recommended
to the Corporation to increase the salaries of certain officers.
This was done in 1723, on the memorial of Tutors Sever
and Welsted; in June, 1724, in the case of Professor Wig-
glesworth ; and in September, 1725, concerning all the
tutors’ salaries. In these cases no votes had been sent up
by the Corporation, nor did the Overseers assume that their
consent was necessary to the validity of any grants, but
simply advised or recommended the augmentations which
they thought advisable. And they are mentioned, not as
affording instances of any admission by the Corporation, or
any assumption by the Overseers, of any such right as that
now claimed, - for they plainly are not such, – but to
show that they have not been overlooked.
In 1732, the next agitation, if it may be so considered,
of any question on this subject took place, when, as above
related (pp. 64, 65), an inquiry being instituted by the
Overseers into the condition of the College, a committee
reported, among other proposals, “that, whereas heretofore,
under the Charter, salaries were wont to have the allow-
ance of the Overseers,” they should “assume their right of
13
98 SALARIES.
Stating and allowing salaries according to the ancient prac-
tice”; which being amended by the Board by substituting
the words “consenting to ” for “stating,” was sent down
to the Corporation, and was never afterwards heard of or
alluded to in either Board, so far as the records show. It
is evident that the committee had been misled into the
belief that the Overseers possessed the original power in
their own right, under the Charter, of stating or allowing:
salaries, by the fact that during the early periods of the
College history they had exercised unlimited authority in
establishing salaries, and in making such allowances, out
of the funds given to them or placed under their control by
the General Court and other benefactors, as has been above
shown; — for it will hardly be pretended that any practice
had ever existed of their undertaking so to distribute or to
control the distribution of any funds held by the Corpora-
tion in its own right, and not made by the donors expressly
subject to appointment by the Overseers. The utter silence
ever after prevailing in both Boards concerning this pro-
posal, - after the subject had been thus deliberately and
prominently presented for consideration and investigation
under such peculiar circumstances, affords, as has been be-
fore suggested (pp. 64, 65), very strong evidence that the
Overseers had them become satisfied to abandon all claims
to the supervision and control over salaries appointed by
the Corporation, as untenable.
From that time to 1761, a period of twenty-nine years,
no further question appears to have been entertained of the
absolute and exclusive right of the Corporation over the
establishment of salaries. That Board continued to ap-
point them in all cases, and not an instance is to be found,
on the records of either Board, of the submission of any
one of them to the Overseers for concurrence. And this
statement, completing the history of the subject for the
first hundred and ten years from the foundation of the
College, as a chartered institution, — a period embracing
more than one half of its existence, but which the learned
SALARIES. 99
Committee of the Overseers have seen fit to pass with only
the incidental and casual notice above mentioned,—seems
to your Committee of great moment in determining the con-
stitutional relations of the two Boards in the matter under
consideration.
It proves that the Corporation, during the lives of the
framers of the Charter, and of their successors, for a period
of a hundred and eleven years, – who may well be sup-
posed to have the best knowledge of the intent of its pro-
visions, and under circumstances the most adverse con-
ceivable to any usurpation or unwarrantable exercise of
authority by the Corporation, and notwithstanding zealous
efforts to deprive them of it by opponents among the
ablest and most influential men of their times in Church
and State, exercised the exclusive power of appointing the
salaries of all College officers, excepting in instances where
such power of appointment was expressly vested in the
Board of Overseers by the donors of the funds out of
which they were to be paid. Taken by itself, this would
certainly justify, if it did not render irresistible, the con-
clusion, that the power under consideration originally and
rightfully belonged to the Corporation, — a conclusion de-
riving additional force from the consideration that the ques-
tion had been twice agitated; in one instance, pressed with
great earnestness by zealous, able, and most powerful op-
ponents, intent upon breaking down that Board by the op-
eration of it, — though claiming less power than that now
asserted by their successors, – and ultimately abandoned
after a severe conflict; and in the other, where the same
general power was claimed as now, apparently withdrawn
as soon as investigated.
With this reasonable presumption, therefore, in favor of
the position that this exclusive right is vested in the Cor-
poration, founded as is believed upon the clear and express
provision of the Charter in the third clause, and the usage
of the two Boards for more than a century, your Com-
mittee proceed to examine the historical evidence com-
100 SALARIES.
mencing at the expiration of that long period, adduced by
the learned Committee of the Overseers in denial of this
right, and in defence of their claim of supervision and con-
trol, - evidence which they appear to deem so conclusive.
They introduce it by remarking, that, from the year 1722
to 1760, “the right of the Overseers to revise the votes
of the Corporation, as to salaries, was at divers times agi-
tated; and in a few instances the Corporation presented to
the Overseers their votes by which allowances were made
to instructors, for their approval, and at several times a call
was made on the Corporation by the Overseers to send to
the latter Board their votes in relation to salaries and other
subjects, which call was always promptly complied with
on the part of the Corporation, and their votes were duly
presented. This important point being fully settled, and the
difficulty as to obtaining possession of the votes of the Cor-
poration being removed, the Overseers took up the subject
of salaries in earnest, and adopted the following vote.”
(Rep. p. 18.)
This passage, as do some others which your Committee
regret to notice in the Report, — taken in connection with
the statement (Rep. pp. 8, 9) that the Corporation, in con-
sequence of acquiring power by the Appendix to enact by-
laws which should become operative before confirmation
by the Overseers, “kept close upon their books most of their
doings, whereby it sometimes happened that important votes
or orders were unknown to the Overseers for years,” —
seems designed to produce an impression unfavorable to
the character of the Corporation for candor and propriety
of conduct, in reference to their votes requiring presen-
tation to that Board ; which, so far as your Commit-
tee have been able to ascertain, is not justified by any
event in the history of the College. Nor have they
been furnished with evidence of any by the Committee
of the Overseers, although a respectful request in writing
was made to their chairman for information touching
this charge ; to which a verbal reply was given, repre-
SALARIES. 101
senting that he was unable to find the memoranda made
by him of the particular instances referred to, indicating,
as was thought, a disposition to forego such communica-
tions, and that he did not intend the imputation of any
deliberate wrong in the remarks made in the Report upon
this subject.
Neither are your Committee able to understand what
was the “important point” thus “fully settled,” nor the
“difficulty as to obtaining possession of the votes of the
Corporation " thus “removed.” If the important point re-
ferred to were that of the right of the Overseers to revise
salaries, with its acknowledgment by the Corporation, there
would not seem to have been any occasion for again tak-
ing “up the subject in earnest.” Or if the “point” and
“difficulty' related to the obtaining knowledge of the
proceedings of the Corporation, it is very clear, upon their
own confession, that none had existed ; for they expressly
say, that during that whole period, from 1722 to 1760, the
call of the Overseers for “votes in relation to salaries and
other subjects * “was always promptly complied with on
the part of the Corporation, and their votes were duly pre-
sented.”
In order to any just apprehension of the value of the evi-
dence adduced by the Committee in their Report, now to
be examined, the position for which they claim its support,
and the soundness of which they assert to be proved by it
“beyond possibility of mistake,” must be constantly and
clearly borne in mind. It is, that a right is vested in the
Overseers to revise and control all appointments of salaries,
by virtue of authority given to them by the proviso making
part of the third clause of the Charter; which clause they
represent as the source of all power in the Corporation to
elect to any office except to their Own Board, or to establish
any salary. That clause, as has been seen, is expressly and
alone quoted as the source of all such power in the Corpo-
ration, and all such right of the Overseers. (Rep. p. 15.)
The Committee state the evidence thus: — That, at a
102 SALARIES.
meeting of the Overseers, November 20, 1760, it was
“Voted, that there be a committee to consider whether it
is in the power of the Corporation to make allowance to
those who are employed in the government or instruction
of the College, without the consent of the Overseers.” That
“on the 11th of June, 1761, this committee made a report,
which was read, and the 9th of July then next was spe-
cially assigned for its consideration; and it was voted that
the Corporation be served with a copy thereof.” That
“on the 26th of the same month of June, the Corporation
met and passed the following vote, viz.: Voted, that what-
soever salaries or grants shall be hereafter made to any of
those who are in the Government of the College, shall be
laid before the Overseers for their consent, and that this
vote be presented to them for their approbation.” That on
the 9th of the following July this vote of the Corporation
was laid before the Overseers, and “was read and consent-
ed to, “it appearing, as the record states, ‘to this Board
[the Overseers] to be agreeable to the College Charter.’”
(Rep. p. 19.) And the Committee observe: “By this
action of the Corporation, they clearly gave up the great
question in controversy, and in fact seem to have admitted
it to be essential to the validity of their votes or Orders
respecting salaries and allowances, that the same should
receive the consent of the Overseers.” Such a conclusion,
from such premises, seems to your Committee somewhat
marvellous. -
The Committee further set forth certain votes of the
Corporation, passed in the ensuing month of September,
establishing the salaries of two professors, four tutors, and
the Instructor in Hebrew, of the Treasurer, and of the
clerk of the Overseers. No mention is made of those of
the Steward, Librarian, or any other officers or servants.
It will be observed that the vote of the Overseers of the
20th of November, 1760, appointing the committee, di-
rected them to consider whether it was in the power of
the Corporation to make allowance to those who were em-
SALARIES. 103
ployed in the government or instruction of the College. The
only further proceeding of the Overseers upon the subject,
before the passing of the vote of the Corporation, was a
vote to have a copy of the report of its committee served
wpon that Board; and there is nothing to indicate that the
Corporation had any other act of the Overseers before
them than that report, when they passed their vote.
The conclusion, therefore, is inevitable, that the claim
thus made by the Overseers was intended by them, and
understood by the Corporation, to be rested upon the
ground taken in that report, and cannot be considered as
having been more extensive than is therein stated; and
must have been exclusive of any other claim therein repu-
diated. That report, therefore, is the only authority for the
exact nature of the claim, and the grounds upon which it
was based, and also for a just explanation of the vote of
the Corporation, so far as it may need any. Fortunately
that report is still in existence in the College archives, to-
gether with the reply to it by the Corporation; both were
also in the hands of the chairman of the Committee who
made the Report under consideration, and copies of both
are hereto annexed, as before mentioned, marked Appen-
dix, No. IV. and Appendix, No. V.
No allusion is made to the contents of that report by the
present Committee of the Overseers; on perusal, however,
it is perfectly manifest that the Overseers then made no
such claim as is now advanced by them, but one much
more limited, confining it solely to the salaries of officers of
the Government, not extending it even to those of officers of
instruction who were not at the same time members of the
Government, — much less to others. Again, it appears that
they not only did not rest their claim upon this third clause,
but based it wholly upon the fifth clause, ea pressly point-
ing out the third as one which applied to salaries of such
officers and servants only as the Corporation had the eacclusive
Tight under it to appoint independently of the Overseers, and
therefore as being inapplicable to salaries of officers of the
104 SALARIES.
Government, which were “to be chosen with the consent
of the Overseers”; and thus in the strongest possible man-
ner not only admitting, but declaring, that the power of the
Corporation to appoint officers and allow salaries under that
third clause is absolute, and uncontrollable by the Overseers.
It is worthy of especial notice, that while the vote of the
Overseers appointing the committee required them to con-
sider and report upon the question, whether the Corpora-
tion could make allowance to those employed in the gov-
ernment or instruction of the College without their consent,
the committee in making their report are wholly silent
about the salaries of those employed in, instruction only,
and confine their argument wholly and only to those of mem-
bers of the College Government, to whose appointment their
consent was necessary. And as the committee rested their
claim wholly upon the Charter, and by it no other appoint-
ments than those of members of the Corporation are made
subject to such consent, — the Overseers themselves ad-
mitting, in that same report, that they had no control over
those made under the third clause, and there being no other
provision in the Charter that touches that subject, — the
conclusion is irresistible, upon the construction of the Char-
ter, that their claim must be confined to the right of con-
trol over salaries of members of the Corporation. And
such indeed seems to be the whole scope of their argument,
which was based upon the fifth clause, assuming that it
gave them control over the disposing by the Corporation
of the revenues of the College, “for the better Ordering of
the government of said College and Corporation,” and that
this necessarily involved the disposing of the “revenues to
the support and encouragement of those concerned in the
government of the College; for without such a disposition,
the government of the College could not be well ordered,
nor indeed subsist at all.”” And in confirmation of their
views they cite the resolve of the General Court in 1722,
* See Appendix, No. IV.
SALARIES. 105
above considered, which is in terms expressly confined
to salaries or allowances for services of members of the
Corporation (p. 96). Again, they rely upon the princi-
ple that it is contrary to the usage of all well-regulated
societies to “permit their officers to settle the question of
their own salaries, and then pay themselves out of the com-
mon treasury”; — an argument which, it is plain, could be
applicable only to salaries of members of the Corporation.
Moreover, upon reference to the records, it will be found
that at that time five out of the seven members of the Cor-
poration were drawing salaries from the College treasury,
thus presenting a case clearly within the scope of their
argument.
And the vote of the Corporation, so much relied upon,
was in exact correspondence with the Report, expressly
confining the proposed submission to the Overseers of sal-
aries or grants to such as should thereafter be “made to any
of those who are in the Government of the College.”
If, therefore, it were admitted that these proceedings and
this vote could be considered as giving up any question in
controversy, or as admitting any right of the Overseers
under the Charter to exercise any control over any salary, -
which, however, your Committee maintain to be a palpa-
ble mistake, – it is plain, that, so far from supporting the
present claim of the Overseers, or constituting any ground
upon which it can rest, they annihilate both, and prove not
only that the Overseers never claimed, and that the Corpo-
ration never admitted, any such general right of revision or
control over salaries, and that this third clause was never
referred to as the basis of any such claim, but that both
such claim, and such ground of any, were expressly repu-
diated.
Nor is this all; for, as your Committee confidently sub-
mit, these proceedings and this vote of the Corporation, in-
stead of being accounted any admission of any right of the
Overseers under the Charter, even over the salaries of the
officers mamed in the vote, are to be accounted very strong,
14
106 SALARIES.
if not decisive, evidence against any such admission, and
that the Corporation thus carefully repudiated any. It is
to be borne in mind, that although the Overseers, by thus
voting to send down a copy of that report, must be pre-
sumed to have adopted the views it contained for the
occasion, yet no official vote accepting the report, or de-
claratory of the views advanced therein, was passed and
entered upon their records, or sent down to the Corpora-
tion, by which the assertion of them was made perma-
ment, — the report itself not being recorded. And on the
other hand, no vote of the Corporation whatever expressly
referring to that report is to be found upon their records,
by which their acquiescence in its principles or conclusions
can be inferred. On the contrary, an elaborate, and, as
your Committee think, perfectly successful reply was im-
mediately made to it, and placed on file with it, a copy of
which constitutes Appendix No. V. . And all else that ap-
pears ever to have been done by that Board in the matter
was the vote of the 26th of June, above cited.
Now your Committee believe that the only reasonable
and just inference from all these proceedings is, that the
Overseers having made a claim, as matter of constitutional
right, and submitted it to the consideration of the Corpo-
ration, and that Board denying any such constitutional
right, and stating their reasons for such denial in full in
a counter report of equal publicity and permanence, but
being willing, from motives of delicacy and sound policy,
to acquiesce in an arrangement to effect the end desired
by the Overseers, the controversy, if such it may be called,
was amicably arranged by the agreement of the Corpora-
tion to enact a vote to that effect, to constitute a by-law
for the future.
If the Corporation had intended to acknowledge the
legal right claimed by the Overseers under the Charter,
some vote expressive of the receipt of it and of such acqui-
escence would have been the only proper and the natural
course of action. Or at least they would have proceeded
SALARIES. 107
thereafter simply to send up salaries for concurrence, as
they did elections of members to the Board, and rules
and by-laws. But instead of doing this, they proceed for-
mally to enact an order or by-law, that they will there-
after send up to the Overseers the votes determining certain
particular salaries for their approbation and consent, —
a perfectly senseless proceeding if such was their obliga-
tion under the Charter. And they take especial pains to
give to this enactment the precise form and character
of an order or by-law, as distinguishable from any recog-
nition of a chartered obligation, by appending to it the
necessary element of an order or by-law, namely, that it
should be submitted to the Board of Overseers for their
approval; which would be absurd if intended as any ac-
knowledgment of their absolute right under the Charter to
all that the order provided for.
That this is the true solution of this transaction is fur-
ther strikingly manifested by the action of the Overseers
themselves, when the order was presented to them, who,
instead of contenting themselves with a mere statement of
their consent, as was usual, added to their vote declaring
it the words, “it appearing to this Board to be agreeable
to the Charter.” — evidently to exclude the conclusion,
otherwise inevitable, that they had thus confessed them-
selves in error, and had surrendered their claim of abso-
lute constitutional right, and accepted a by-law, found-
ed upon a voluntary action of the Corporation, in place
of it.
It was a clear case of mutual arrangement, the Corpo-
ration denying the legal obligation, but willing to adopt
the proceeding in a form that should not commit it to any
acknowledgment of such obligation; and the Overseers
not being disposed to record an unreserved surrender of
their claim, but willing to accept the substitute proposed
by the Corporation, with a salvo that it should not be
understood as admitting their claim to be untenable.
Whether this salvo was thus attached because the majority
108 SALARIES.
of the Overseers were not convinced by the reply of the
Corporation that the claim was not maintainable, or be-
cause they considered it a doubtful matter, or from deli-
cacy to their committee, who had so confidently urged it,
or from any other cause, is of no consequence. It was
clearly, on the part of the Overseers, a practical surrender
of their alleged constitutional right, and a practically suc-
cessful resistance of it by the Corporation. And consider-
ing the relative power and influence of the two Boards at
that time, it is difficult to believe that the Overseers would
not have insisted upon their right, and have refused acqui-
escence in any such arrangement inconsistent with it, if
not upon the whole convinced that it was untenable, or
too questionable to be made the subject of any contro-
versy injurious to the interests of the College. Cam any
instance be found, on the records of either Board, of an
enactment of an order or by-law for the sending up of
elections of members of the Corporation, or of orders and
by-laws, or of anything else which by the Charter the Cor-
poration is required to send up, — or any vote of the Over-
seers relating to any such subject, to which they thought
it necessary to append such a salvo 7
And there were exceedingly good reasons why this requi-
sition of the Overseers for a supervision over the estab-
lishment of the salaries of those employed in the Gov-
ernment of the College should have been at that time
acquiesced in by the Corporation. As has been stated,
five out of the seven members of it — three of them being
principal instructors — were drawing salaries from the
common treasury. Delicacy, therefore, and a sense of pro-
priety, as well as due regard for public confidence and good-
will, would naturally prompt on their part a willingness
that salaries appointed by themselves, a majority of whom
were directly interested in such appointments, should be
submitted for the approval of the higher Board; and es-
pecially of one possessing such widely spread public re-
gard and influence. And these motives doubtless received
SALARIES. 109
great additional impulse from the circumstance that the
question of the establishment of another rival College in
Berkshire had begun to be agitated, creating great alarm
among the friends of Harvard; and also from the fact that
application was about to be made to the General Court
for aid in means to erect another hall, which had become
necessary; so that cordially united and mutually friendly
efforts of both Boards were called into active requisition
for the protection and welfare of the institution over which
they presided.
The order or by-law thus established was, as the Report
states, most faithfully complied with by the Corporation
down to the year 1811, when another was passed, providing
that the salaries enumerated in it should be paid quarterly,
until they should be altered by the Corporation, with the
approbation of the Board of Overseers; since which time,
as is further stated in the Report (pp. 22, 23), the Commit-
tee “upon cursory examination have noticed not more
than three or four instances in which votes adopted by the
Corporation respecting salaries have been presented by
them to the Overseers for their consideration and ap-
proval.”
It is worthy of motice, in this connection, that the votes
of the Corporation establishing salaries, sent up to the
Overseers for confirmation in the years 1761 and 1810,
and cited in the Report under consideration (pp. 19–21),
embraced salaries of officers clearly not in the government
of the College in any sense, and therefore not within the
scope of the order or by-law of 1761, -for instance, the
clerk of the Overseers, the Hebrew Instructor, and the Li-
brarian,— and also included grants for clerical services,
&c.; to all which there could be no pretence that the con-
sent of the Overseers under the Charter was considered by
them as necessary at the time when that order was enacted.
This goes far to prove that the Corporation, in thus send-
ing them up, was not acting under any admitted obligation
under the Charter, nor acting exclusively even under that
110 . SALARIES.
of the by-law, but was doing so from a disposition to lay
all their proceedings on these subjects before the Board of
Overseers.
Your Committee deem it unnecessary to advert further
to the argument adduced by the committee of the Over-
seers in the report of 1761, in favor of the limited claim
then made, and founded upon the fifth clause of the Char-
ter, than to refer to the views they have already presented
when considering the true construction of that clause, and
the subject of appointments (pp. 23–28), and to its pal-
pable inconsistency with the claim and argument now
advanced, and its implied entire abandonment by the
Committee in the Report under consideration, to whose
chairman it was not unknown.
Nor is it needful to recapitulate the reasons why, if the
Corporation could be supposed ever to have temporarily
relinquished a power vested in them by the Charter, or to
have submitted to any restriction upon its exercise, such
relinquishment or submission, in whatever form, could be
of no legal obligation, but would become a practical viola-
tion of duty and breach of trust, whenever, in the exercise
of their judgment, the continuance of it should become
inconsistent with the interests of the College; as these
reasons have been already stated in considering the sub-
ject of Appointments (pp. 79, 80). That no practice of
that mature could avail to deprive the Corporation of the
right to resume the power, there is, for the purposes
of this discussion, the highest authority in the principle
avowed by the learned Committee in their Report (p. 17);
but, as above shown, no such practice implying the admis-
sion of any such right has ever existed.
Upon the foregoing review of the whole history of the
College upon this subject, and of the particular evidence
adduced by the learned Committee of the Overseers in
support of their claim of “the right of confirmation or re-
vision respecting the votes and doings of the Corporation
in relation to salaries and allowances to instructors and
SALARIES. 111
officers,” your Committee respectfully submit, that it has
no valid foundation in the Charters, nor in any acknowl-
edgment by the Corporation, nor in any practice implying
it. But, on the contrary, that the absolute and exclusive
right of the Corporation to establish salaries, uncontrolled
by the Board of Overseers, is expressly ordained by the
Charter; that all attempts on the part of that Board to ex-
ercise any such control, as a matter of constitutional right,
have been successfully resisted by the Corporation and ul-
timately abandoned by the Overseers; and that the uni-
form practice of both Boards has, excepting in such at-
tempts, been from the beginning in accordance with the
possession of such exclusive power by the Corporation, —
the only seeming departures from its assertion, or acknowl-
edgment, being clearly shown to have been founded upon
orders or by-laws voluntarily enacted by the Corporation
and approved by the Overseers, and so constituting addi-
tional proof of its existence.
A very striking and recent illustration of the entire mu-
tual understanding of the two Boards upon the subject of
salaries, and all other matters of finance, and of the mov-
elty of the claims now made, is found in their proceedings
in 1841. The Board of Overseers in the month of January
of that year, being, as it would seem, either under an im-
pression that the Corporation had not been so commu-
nicative of their proceedings as might be expected, or
desirous of fuller information of the nature of their duties
and of the manner in which they were performed, sent
down a request, on the motion of an eminent legal member
of the Board, that the Corporation would lay before that
Board, “for the information of the members thereof, a copy
of the records of the Corporation for the last two years, so
far as they related to matters of general interest, or such
as might be deemed proper by the Corporation to be made
known to the Board of Overseers.” And it was there-
fore voted by the Corporation, “That, pursuant to the
said request, the President be authorized to lay before the
112 SALARIES.
Board of Overseers such parts of the proceedings of the
Board, for the last two years, as relate to matters of gen-
eral interest, and which are proper to be communicated
to that Board.”
In pursuance of these votes, a copy of all the records of
the proceedings of the Corporation for the two years named
in them, excepting such as related to financial concerns,
was laid before the Board of Overseers ; and the same
was received with expressions of entire satisfaction, and
of no little surprise at the number of meetings and amount
of labor thus exhibited. Not an intimation was suggested
or hinted that there was any subject omitted in the re-
port which it was proper should be laid before the Over-
seers, although it was plainly impossible for them to have
Overlooked concerns of such importance as the investments
of the funds of the College, its expenditures, salaries, &c.,
if they had been considered by any member of the Board
as falling within the limits of its request.
Negative evidence more entirely conclusive than this of
the entire understanding of the two Boards that the sub-
jects of finance and salaries were not among those over
which the Board of Overseers had rightful revision and
control, cannot easily be imagined. It may also be well
to remember that the Corporation at that time included
Mr. Justice Story and the Chief Justice of the Common-
wealth, and that the Overseers possessed a full share of
legal talent and learning, and were bent, as their vote
shows, upon the faithful exercise of all their legitimate
authority.
Another occurrence of still later date is perhaps more
strikingly indicative of the same mutual understanding of
the reciprocal rights and obligations now in question. The
Statutes and Laws of the University underwent an entire
revision by both Boards in the year 1848, and a code was
adopted by their concurrence, after amendments by the
Overseers. This code purports to contain all the laws of
the University, including those of its general organization
SALARIES. 113
and government. It contains, in Article 5, a precise de-
scription of the duties of the Treasurer, including that of
submitting his accounts to committees appointed for the
purpose by the Corporation and Overseers, and that of mak-
ing annually to the Overseers a general statement of the
Teceipts and eagenditures of the institution.
It states, Article 28, that all the officers of instruction
and government in the University are chosen by the Cor-
poration, with the concurrence of the Overseers, and are
subject to removal for inadequate performance or neglect
of duty, or misconduct. But we look in vain for any arti-
cle or suggestion that the action of the Corporation upon
salaries, or any financial matters, is to be submitted to the
Overseers, or be in any manner subject to their confirma-
tion or revision. The only instances in which the subject
is alluded to are in prescribing the duties of the Treasurer
as above stated, and also in three cases where new salaries
were to be created, - in all which the power of establishing
them is vested eacclusively in the Corporation; the statutes
themselves approved by the Overseers being thus, so far as
the subject is alluded to, in direct conflict with the claims
now made by the Committee in their behalf. (See Articles
35, 133, 149.)
It is submitted with great confidence, that clearer proof
could not be exhibited, that, up to the time of the revision
and establishment of that code, in 1848, the Overseers did
not claim, and did not imagine that they possesssed, the
power of revising and controlling the action of the Corpo-
ration in its investments and management of the finances
of the College, or in the establishment of salaries; for it is
impossible to believe that, if they considered themselves as
having such powers, – the existence of which would ne-
cessarily involve the duty of a faithful exercise of them by
active, regular, and systematic supervision and control,
they should, when acting upon the subject, have enacted no
laws regulating, or enabling them to maintain and enforce,
such supervision or control, or giving them opportunity for
15
114 SALARIES.
such maintenance or enforcement, but should rest content
with a mere proviso requiring of the Treasurer an annual
ea:hibition of what had been done, and which of course
would be too late for the exercise of the powers asserted;
and that, in the only instances in which they should pro-
vide any law touching any salary, or expenditures, they
should place the right to establish or make them in the
Corporation wholly, and independently of any such right
of revision or control on the part of the Overseers. To
suppose that the Overseers considered themselves as pos-
sessing the powers now claimed, and with that knowl-
edge approved of this code, is, your Committee respect-
fully submit, to suppose them wanting in fidelity to the
trust reposed in them, which no one can think possible in
reference to such subjects. -
In regard to the present position of the two Boards, and
the course to be hereafter pursued upon this subject, your
Committee are of opinion that the question whether the
establishment of any particular salary, or class of salaries,
shall be submitted to the Board of Overseers, and so made
subject to their consent or rejection, is one to be decided by
the Corporation, according to their best judgment and dis-
cretion, whenever it shall arise for decision. No such uni-
form practice in favor of such submission can be pretended
as has existed in respect to appointments to office; nor
have any reasons in favor of such a practice presented
themselves, or been suggested to the minds of your Com-
mittee, which could lead to its continuance, if existing, or
to its future establishment. The Order or by-law of 1761
was clearly repealed by that of December, 1810, and
this has been virtually abrogated by mutual consent of
both Boards; – all the salaries established by it having
been altered, and some of them repeatedly, these changes
being of course known to the committees of the Over-
seers in their annual examinations of the Treasurer's
accounts, and appearing in his printed Reports above men-
tioned; and numerous new salaries having been estab-
TEN URE OF OFFICE. 115
lished, the existence of which was not only made known
in like manner, but must have been in every instance
brought to the knowledge of the Overseers, or suggested
to them, when appointments to the new offices to which
they were attached were presented for confirmation. And
your Committee are unable to perceive in the nature of
the case, or in any exigencies of the College, any reason
to revive any such law, or to depart from a practice in
conformity with the chartered relations of the two Boards,
which existed for the first century and more, and has
characterized the last forty years.
TENURE OF OFFICE.
The subject of Tenure of Office in the College is disposed
of by the Committee of the Overseers (Rep. p. 15) in a
few general propositions composing one paragraph, and
founded upon the idea underlying the whole Report, that
the powers of appointment and of establishing salaries are
vested in the Corporation by the third clause, and that all
are subject to the control and supervision of the Overseers
by virtue of the proviso at its close. The error of the last-
mentioned position your Committee believe to require no
further exposition.
No practice can be adduced on either side in confirma-
tion or disproof of the claim here set up. There have been,
as your Committee believe, but two recorded cases of re-
moval of College officers; one of a professor in 1738, by
a vote of the Corporation, concurred in by the Overseers,
and one of a tutor, which took place in 1742; the proceed-
ings of both Boards in regard to which were such as to
make them very clearly no precedent of constitutional
right on either side.
If the views concerning the true intent and meaning of
the third clause above presented by your Committee, in
treating of the construction of the Charter, and of Appoint-
ments and Salaries, be correct, the power of removal of
116 TENURE OF OFFICE.
College officers is, by the Charter, vested solely in the
Corporation; and therefore the consent of the Overseers is
not required by it, excepting in those cases where the
foundations of professorships, or other offices, provide that
the consent of the Overseers shall be required for such
removal.
If, at the expiration of the term for which any officer
were appointed, a renewal of his appointment for the
same or any other term should be made, the Corporation
would doubtless, in analogy with their practice in cases of
original elections, present such renewal for confirmation.
It is apprehended, however, that the mere continuance
of an officer, who had been approved by the Overseers
when appointed, in the performance of the same duties,
after the expiration of the term for which he was so ap-
pointed and approved, – no change having taken place in
the services required of him, or in other relations affecting
his position, — would be a very different case in principle
and policy from that of a new appointment, and could not
be with propriety accounted any irregularity, as the learned
Committee assume. It is a case in which this Board
would be at entire liberty to exercise its discretion in re-
gard to any new presentation to the Overseers; though,
where a determinate intention existed of any permanency
in such continuance, they would unquestionably make one.
Your Committee having thus endeavored carefully, and,
as they hope, with becoming candor and respect for the
honorable Committee whose Report they have been consid-
ering, to discharge the duty imposed upon them in refer-
ence to the subjects of inquiry specified in the vote of the
Overseers appointing said Committee, and in reference
to all concerning which it is proposed that joint rules
should be adopted for securing the respective rights of
the two Boards, and for regulating their future intercourse,
— namely, Finances, Donations, Appointments, Salaries,
and Tenure of Office, — they would very gladly here ter-
minate their laborious task.
TREASURER’s SALARY. 117
All the topics above mentioned are within the express
provision of that vote and the resolution appended to the
Report appointing the same gentlemen as a committee of
conference, and involve no other issues than those of
such honest diversities of opinion as might arise upon
questions of legal construction of the College Charters, and
the weight of historical evidence. But one other remains,
which your Committee do not perceive to be embraced in
either that vote or resolution, involving a very different
issue, over which that Committee have assumed jurisdic-
tion, — allusion to which here will, as your Committee
trust, be attributed, not to undue sensitiveness, but to a
reasonable self-respect, which may not permit this Board
to pass it in silence. They refer to the increase of salary
recently attached to the office of the College Treasurer.
TREASURER'S SALARY.
This subject occupies a conspicuous position in the Re-
port, from the space devoted to it, and from the very
pointed remarks in which the Committee have seen fit to
indulge in reference to it; and also from its obvious ten-
dency to bring severe reproach upon the Coporation, which,
it is to be presumed, nothing but an imperious sense of
duty on the part of the gentlemen composing that Com-
mittee could have led them to design.
After a very cursory allusion to the history of the treas-
uryship, from the year 1810 to the year 1852, for the pur.
pose of attempting to show that the incumbents of the
office during that period had derived from it no pecuniary
emolument, — but with no reference to the great changes
in the mature and extent of the services and responsibilities
which in the later portion of it have occured, – the Com-
mittee proceed to use the following language: “The Com-
mittee, therefore, are surprised to learn that the Corporation
did, on or about a year prior to the resignation of Mr.
Eliot, viz. about November 27, 1852, pass a vote direct-
118 TREASURER’s SALARY.
ing a salary of fifteen hundred dollars to be paid to the
Treasurer, which was over and above the usual allowance to
him of about eight hundred dollars per annum, for expenses
of clerk-hire, rent of office, etc. Under such circumstances,
it is difficult to comprehend for what reason said order or
vote was adopted.” (Rep. pp. 24, 25.)
They proceed immediately to add: “ The Committee
have no doubt that there are many highly respectable
gentlemen in this community, of perfect responsibility, and
every Way qualified for the situation, who would take this
office, being one of high honor and dignity, and discharge
its duties faithfully and satisfactorily, without compensa-
tion. They therefore cannot, without further information
than they have been able to obtain, perceive any good reason
why the Government of the College may not save this sum of
fifteen hundred dollars every year. The vote by which the
Corporation undertook, in 1852, to attach a salary of fif-
teen hundred dollars to the office of Treasurer, has never
been presented to this Board; and the passing of the same
by the Corporation furnishes, in the opinion of the Committee,
pregnant evidence of the propriety of its being insisted upon
by the Overseers, that they should have an opportunity to pass
judgment upon every vote of the other Board in relation to
salaries and allowances to officers and instructors.” (Rep.
p. 25.)
They then proceed to intimate, that the only amount of
salary now legally established is that ordained by the vote
of 1810, and that therefore the amount paid pursuant to
the vote of 1852 has been unlawfully appropriated.
Your Committee have given these extended extracts,
that they may not be thought to have been led into any
misrepresentation or exaggeration of them, in the comments
upon their nature and tendency about to be submitted;
although any such comment on language so explicit and so
pregnant of suggestion may perhaps be thought superfluous.
Upon the perusal of these passages, who could doubt that
a serious wrong had been committed ? If a Committee
TREASURER’s SALARY. 119
composed of persons of the intelligence and fidelity which
characterize the members of that which made this Report,
and a Board consisting of the numerous eminent and faith-
ful men who constitute that of the Overseers, by whom it
was adopted, and who, it appears, consider themselves su-
pervisory guardians of the College, with the duty upon them
of exercising especial watch and ward over its finances,
were surprised, in the year 1856, to learn of a very large
and seemingly unaccountable and useless expenditure of
its funds made in the year 1852, and repeated annually
for three succeeding years, and this surprise was so great,
and the cause of it so fraught with danger, or so reprehen-
sible, as to render it necessary, in the opinion of the Com-
mittee, to recommend the adoption of very stringent pre-
cautions to prevent the possibility of any such hereafter, —
who could doubt that there must have been some designed
concealment on the part of the Corporation, or some covert
proceedings in relation to the matter, — or, at the least,
some great carelessness or negligence in the omission of
notice to the Overseers, which might imply a disregard of
duty scarcely less reprehensible than an intended violation
of it. And the reader would at Once be led to consider
it as an imitation, by the present Board, of the alleged
doings of their predecessors, who, in the forcible language
of the Report (p. 9), “kept close upon their books most of
their doings, and it sometimes happened important votes
or orders were unknown to the Overseers for years.”
Nor could any reader of these passages presume to ques-
tion that the highly respectable gentlemen who compose
that Committee, appointed to represent one of the most
public and dignified corporate bodies known in the Com-
monwealth, in inquiries upon topics of great importance,
and the results of whose investigations were to be returned
to their numerous constituents, and probably printed, had
made some reasonable efforts to inform themselves of the
causes and motives which led the Corporation to establish
such an increase of the Treasurer’s salary, before thus
120 TREASURER’s SALARY.
recording and publishing the assertion, that they found it
“ difficult to comprehend for what reason said order or vote
was adopted,” and “could not, without further information
than they had been able to obtain, perceive any good reason
for the earpenditure”; — thus implying the severest and
most pregnant of strictures upon those employed in the ad-
ministration of a high public trust, and who had once at
least possessed their confidence and respect so far as to be
confirmed in the office thus impliedly represented to have
been perverted or abused. Nor could the emphatic remark,
that the alleged ornission to present to the Overseers this
vote is pregnant evidence of the propriety of its being in-
sisted upon by the Overseers, that every one relating to sala-
Ties and allowances should be so presented, - escape his
observation, as a signal rebuke, thought to be due for this
supposed violation of duty.
The necessary inference would of course be, that the
Corporation, with opportunity given for explanation, or
upon reasonable request for the desired information, had
either confessed that they were unable or unwilling to state
“for what reason said order or vote was adopted,” or to
give any information tending to show this additional ex-
penditure justifiable; or else had negligently omitted to
respond, and therefore had impliedly admitted themselves
unable to render any such reason or explanation.
And thus the President and Fellows of Harvard College,
upon the unequivocal and most obvious purport of this lam-
guage, stand publicly arraigned and rebuked for designed
concealment or unpardonable negligence in withholding
information of their doings, – information which the Over-
seers were entitled to have, – and for a corrupt or faith-
less or reckless expenditure of the funds intrusted to their
keeping; while, in the mean time, a recent movement in
the Legislature, now pending, and pointing with no doubt-
ful significance to this charge as its origin, or authority,
tells of its natural effect upon the popular mind.
In dealing with a subject of such grave importance, and
TREASURER's SALARY. 121
so nearly a personal one to every member of this Board,
your Committee desire to evince towards the Committee
who framed the Report, and the reverend and honorable
Board by which it was adopted, the most entire respect;
but in discharging their duty of replying to these charges,
and while considering that of concealment or negligent
omission implied in the alleged surprise with which the dis-
covery was made of the fact of the increase of the Treasurer’s
salary, your Committee must be allowed humbly to express
their own, that the learned Committee in preparing a
Report so elaborate, and purporting so much reference to
documents, and that the members of the Honorable Board
of Overseers in adopting it, should admit themselves to
have been surprised by the discovery of a fact, which it
would seem (if your Committee may be allowed the sug-
gestion) to have been in the way of their ordinary duty to
have known three years previously, of which they had full
evidence then before them, and of which they have received
official notice every year since.
The first grant was made, as the Committee state, in
November, 1852; and accordingly it was duly charged, and
somewhat conspicuously so, heading a column in the Treas-
urer's printed Report for 1853 (p. 10), in his Report for
1854 (p. 8), and finally in his Report for 1855 (p. 10), about
two months before the Report under consideration was pre-
sented to the public.
Let it be observed, that in 1853 this was a prominent
introduction of an entirely new charge of so large a sum in
the Treasurer's account ; for it does not appear as an in-
crease of the preceding allowance, set down as had before
been usual, but as a new and distinct item of $1,500, with
the Treasurer's name in full as the recipient ; and it was in
like manner distinctly marked and set forth in each suc-
ceeding year. So that the Overseers had full information of
this fact placed in print before their eyes when it occurred,
and for three successive years, and information of precisely
the same nature of that, with which they had been ap-
16
122 TREASURERS’ SALARY.
parently entirely satisfied, concerning all other salaries, old
or new, for the thirty or more years preceding. For the
Report finds, that, “from the beginning of the year 1811 to
the present time, the Committee have not noticed more
than three or four instances in which votes adopted by
the Corporation respecting salaries have been presented by
them to the Overseers for their consideration and approval”;
while the annual reports of their committees, and the fre-
quent submission to them of appointments to new offices,
must have constituted continually occurring information
that old salaries were from time to time changed, and new
ones established.
So far, therefore, from there having been any conceal-
ment, or negligent omission to give notice to the Overseers,
of this increase of the Treasurer's allowance, or any ground
for the alleged surprise, or any justifiable cause of censure,
it is respectfully claimed, that the Corporation, in this
instance, had done all which, by the practice of the two
Boards for the thirty or forty years preceding, it had been
usual to do in like cases, – a practice which had received
the time-honored sanction of the Overseers themselves,
long before any of the present members of the Corporation
were appointed to office, and throughout the whole period
of their service.
The further imputations cast upon this Board by the
Committee of the Overseers, in their statement that they
found it “ difficult to comprehend for what reason said vote
was adopted,” and that they could not, “without further infor-
mation than they have been able to obtain, perceive any good
reason " for this expenditure, have excited in the minds of
your Committee still deeper and more painful surprise ; —
indeed, such declarations appear to them entirely unac-
countable. It seems incredible that the learned Commit-
tee should have been willing to attempt the infliction of
such public reproach upon the members of a body associ-
ated with them in the administration of a great institution,
without taking the trouble of looking into the records of
TREASURER's SALARY. 123
their proceedings, or, at the least, that of asking a simple
question of any one of them. And yet, if they had dome
either, it seems impossible that they could have made such
charges or implications. Had they turned to the records
of the Corporation, whose books have been and are always
freely open to their inspection, or had they condescended
to make inquiry of any member of that Board, they would
have ascertained that this increase of the Treasurer's salary
had been one of very careful consideration; that the sub-
ject had been placed in the hands of a large committee, who,
after time for inquiry and deliberation, had made a report,
fully setting forth the reasons which induced them to recom-
mend an augmentation; that it was in pursuance of that
report that the “said order or vote was adopted”; and
that it was then placed, and has ever since continued to
be, on their files, for the inspection of all persons interested
to see it.
Whether those reasons would have been, or will now
be, satisfactory to the gentlemen composing that Commit-
tee, is not now the question. They are certainly those
for which the “said order or vote was adopted *; more-
over, there can be no pretence of difficulty in ascertaining
that they were so, or in comprehending them when dis-
covered. That report your Committee annex, as Appen-
dix No. VI., for the purpose of a more full exhibition of
the motives and reasons actuating the Corporation in that
measure, than could be conveniently made by any reca-
pitulation of them.
And the Committee of the Overseers might further have
found, had they made inquiry of any member of the Cor-
poration, that the present Treasurer, soon after his appoint-
ment to office, had generously proposed to the Board to
appropriate the amount to be received for his services to-
wards the establishment of scholarships, or in aid of such
other charities or foundations as they should approve.
Thus, them, it appears that the Corporation, so far from
having no reasons to assign for their procedure in this mat-
124 TREASURER’s SALARY.
ter, or being unwilling to disclose those reasons, or neg-
lecting to disclose them when called upon, have acted upon
reasons by them carefully considered, and made perma-
nently known and accessible on their records and files to
all persons having any right or interest to make inquiries
concerning them ; and that the amount thus paid to the
present Treasurer has not been thus lost to the College, as
the Report plainly implies.
With regard to the assertion by the Committee of their
having no doubt that many persons of suitable qualifications
may be found to discharge the duties of this office gratui-
tously, your Committee beg leave respectfully to say, that
the belief in generalities of this description, however hom-
estly entertained by those who have never tried the ex-
periment, is not the most satisfactory evidence of their
reasonableness. The duty imposed upon the members of
the Corporation to make appointments, is one which they
are required by the nature of their trust to fulfil according
to their own discretion, and under a sense of personal re-
sponsibility from which they cannot be released by the
opinions of others. It may be easy to find good account-
ants, and reliable men, suitable for the keeping of books
and of making investments of property; but the College
Treasurer, as a member of the Corporation, and entitled to
an equal voice and vote with every other member upon all
questions presented for its decision, has other, and often
higher, duties to perform ; and it may not be unreasonable
to assume that of his qualifications for these the members
of the Corporation may be judges as competent as any
other persons, while having upon them the further sole re-
sponsibility of choice in the first instance.
How long it may be practicable to procure the services of
competent and high-minded men, who with suitable talents
and attainments may be able and disposed to devote their
time and labor to the duties of this office, with its very
numerous and daily increasing labors, perplexities, and
anxious responsibilities, – with the disposition of the pres-
TREASURER’s SALARY. 125
ent incumbent generously to devote the reasonable salary
attached to it in aid of College charities, your Commit-
tee of course cannot predict; though they cannot forbear
the expression of their apprehension, that the same causes
which now seem to him to compel his retirement may
render the probability of such disinterested service here-
after less than it hitherto may have been.
But however that may be, your Committee see no cause
to change the clear conviction, which all the members of
this Board entertained at the time of establishing this sal-
ary, of the propriety and necessity of the measure, not only
as one of simple justice, but also in order to secure a proper
and effective sense of responsibility, both on the part of the
Treasurer in the rendering of his services, and of the Board
in passing upon the performance of them; thus placing
him upon the platform of the strictest legal, as well as
of high moral obligation, while not taking from him the
opportunity, should his means and disposition allow, of
enrolling himself at the same time among the honorable
and distinguished benefactors of the College.
The distinction between the position of the Corporation
at the time when a large majority of its members were
recipients of salaries appointed by it, and its condition
at the present time, when only two receive such compensa-
tion, and the corresponding urgent propriety of sending up
for concurrence such appointments in the One case, and
its cessation in the other, are considered too obvious to
require comment. The subject, as your Committee are
satisfied, is one resting wholly in the discretion of the
Corporation, and upon which its members must act, as
occasions occur, according to their own sense of duty to
the institution under their immediate charge.
126 CONCLUSION.
CONCLUSION,
If the views of your Committee, as above presented, be
correct, it follows, that the only legitimate subjects of any
such “joint rules as shall secure to the two Boards, as far
as it may be practicable, their respective rights,” “ and
provide for the prompt transmission of all such votes of
the Corporation to the Overseers as they may have a right
to confirm or reject, revise, or take action upon,” are the
election of officers and members of the Corporation, and
the enactment of “orders and by-laws for the better or-
dering and carrying on of the work of the College,” em-
bracing, of course, the statutes and foundations of profes-
sorships, and of any new offices in the government or in-
struction of the institution which may from time to time be
established;— these being the only ones over which, by the
Charters, the Board of Overseers has any legal authority
of revision or control. For it is obvious that joint rules
imposing legal obligations on the two Boards respectively
should be confined to matters in which each has legal power,
and is under a legal duty to act in concert with the other.
But as the Corporation must ever be solicitous, not only
to come up to the full measure of its legal obligations in
reference to the Board of Overseers, but also to comply
with all reasonable arrangements desired by it touching
their mutual intercourse, and especially to secure to it
prompt notice of all proceedings of which it should have
cognizance, and in cases where its aid and advice may be
sought, which the Charters give to this Board the right to
ask for, and also in those where its sanction may be desired;
— and further, as appointments of officers of instruction
and government have been hitherto uniformily presented
to that Board for confirmation or rejection, and sound pol-
icy and the best interests of the College seem to sanction a
continuance of the practice,—your Committee recommend
the adoption by this Board of the following Resolutions:–
1. Resolved, That the Committee of Conference appointed
CoNCLUSION. - 127
by this Board is hereby instructed to confer with that of
the Board of Overseers, upon the establishment of such
joint rules and orders regulating the intercourse between
the two Boards upon the subjects of elections of officers
and members of the Corporation, and of such orders and
by-laws for the better ordering and carrying on of the work
of the College, as the Committees shall think advisable;
and to report to this Board the result of its conference, for
its approval or rejection.
2. Resolved, That this Board will present to the Board of
Overseers all elections made by it to any offices of govern-
ment or instruction in the College, as soon as conveniently
may be after such appointments; and that every vote
and resolution making such appointment shall be so laid
before the Board of Overseers, accompanied by or includ-
ing a vote importing that such appointment shall be laid
before them, that they may concur therein if they see fit.
And no such appointment shall be held valid after the
Board of Overseers shall have decided not to concur therein.
3. Whereas it is provided by the Charter, that the Pres-
ident and Fellows of Harvard College be constituted a
corporation and body politic, and they and their succes-
sors are enabled and empowered to purchase and acquire
to themselves, or take and receive upon free gift and dona-
tion, any lands, tenements, or hereditaments, and any gifts
and sums of money whatsoever, to the use and behoof of
the said President and Fellows and scholars of said College;
and whereas it may sometimes so happen that grants and
donations may be made to the use of the College for the
promotion and advancement of such specific objects and
purposes expressed therein as may render it, in the opinion
of this Board, doubtful whether such objects and purposes
are within the general scope and purpose for which the
College is established, or such donations may be offered
upon such terms and conditions as render it thus doubtful
whether the acceptance of them upon those terms and
conditions would be for the benefit of the College; and
whereas, by the express provisions of the Charter, the Cor-
128 CONCLUSION.
poration is entitled to the benefit of the advice and counsel
of the Overseers in great and difficult cases, and cases
of non-agreement; — therefore Resolved, That, in all such
cases, the President and Fellows, after expressing their
own opinion by a proper vote or resolution, either accept-
ing or declining to accept any such proffered donations,
for the objects or purposes, or upon the terms and condi-
tions, therein expressed, - and thereby also declaring that
such vote or resolution, accepting or declining to accept
such donations, shall not take effect or be deemed conclu-
sive until the same shall have been laid before the Board
of Overseers for their concurrence or advice, — will forth-
with, as soon as conveniently may be, present the same to
the Board of Overseers; — and that, if the Board of Over-
seers shall not concur in such opinion and resolution of
this Board, the subject shall remain for the further action
of the two Boards thereupon.
This last resolution vests in the Overseers power to pre-
vent the acceptance of any donation encumbered with
terms or conditions of doubtful expediency; but does not
vest in them authority to compel the Corporation to re-
ceive gifts accompanied with provisions which its members
may consider inconsistent with prerogatives, or incompat-
patible with duties for the exercise and performance of
which they alone are legally accountable.
As all the financial operations of the Board are sub-
stantially laid before the Overseers in the annual printed
reports made by the Treasurer, and all the salaries paid
are also distinctly set forth in it, your Committee are not
aware of the necessity of any resolutions or rules for the
more perfect securing of the rights of the Board of Over-
seers, or for the exhibition to them of any further informa-
tion which might be useful in enabling them to discharge
any duties incumbent upon them. If any views which may
be suggested by the Committee of the Overseers should
render any such resolutions or rules, in the opinion of your
Committee, desirable, they will report the same for the
consideration of this Board.
CON CLUSION. 129
In bringing their labors to a close, your Committee have
no wish to conceal their consciousness of liability to error,
omission, and misapprehension, in an investigation extend-
ing over so wide a field, and embracing so many topics,
and about which different opinions are known to exist.
All which they desire, therefore, to claim for themselves,
is the confidence in their statements and conclusions to
which they may be entitled by reason of careful investiga-
tion, a desire homestly to exhibit every fact known to them
considered material to the discussion, and an intention to
draw from them such inferences only as reason and candor
shall approve. Meanwhile it is to them matter of satisfac-
tory reflection, and confirmatory of the views they entertain,
that their conclusions are not only, as they believe, in entire
accordance with the Charters of the College, but also with
the practice of both Boards, properly understood, for by
far the greater portions of time which have elapsed since
its foundation, and especially for nearly the last half-cen-
tury, - conclusions, therefore, which may claim the practi-
cal sanction of the Overseers, and require no changes of
the manner in which the affairs of the College have long
been harmoniously and successfully conducted.
Nor can your Committee withhold the expression of
their profound sorrow at the death of the eminent member
of the Board of Overseers, and of their Committee of Con-
ference, whose recent departure is so universally lamented
throughout the Commonwealth; who so faithfully and ably
discharged his duties wherever they lay; and in whose
candor, learning, and love of truth your Committee had
placed great reliance for the final and mutually satisfactory
adjustment of the questions thus brought into discussion.
All which is respectfully submitted.
JAMES WALKER,
LEMUEL SHAW,
CHARLES G. LORING,
17
At a special meeting of the President and Fellows of
Harvard College, in Boston, November 15, 1856: —
The Committee appointed to confer with that appointed
by the Overseers, under their resolve of January 31, 1856,
and instructed to take into consideration, and report to this
Board, the mature and extent of the rights claimed by the
Overseers, as represented at a conference held by the Com-
mittee, and of the corresponding obligations of this Board,
and such other matters embraced in the Report made by
the Committee of the Overseers to that Board as shall be
thought proper, submitted their Report.
Whereupon it was
Voted, That the Report be accepted, and the Resolutions
appended thereto adopted; also, that the Report and Res-
olutions be printed, under the direction of the Committee.
A true copy of record.
Attest,
GEORGE PUTNAM, Sec'y.
A PP E N DIX.
A PPEN DIX.
NO. I.
AN ACT ESTABLISHING THE OVERSEERS OF HARVARD COLLEGE,
At a General Court held at Boston, in the year 1642.
WHEREAs, through the good hand of God upon us, there is a
College founded in Cambridge, in the county of Middlesex, called
HARVARD COLLEGE, for the encouragement whereof this Court
has given the sum of four hundred pounds, and also the revenue of
the ferry betwixt Charlestown and Boston, and that the well order-
ing and managing of the said College is of great concernment: –
It is therefore ordered by this Court, and the authority thereof,
that the Governor and Deputy Governor for the time being, and
all the magistrates of this jurisdiction, together with the teaching
elders of the six next adjoining towns, viz. Cambridge, Watertown,
Charlestown, Boston, Toxbury, and Dorchester, and the President
of the said College for the time being, shall, from time to time,
have full power and authority to make and establish all such
orders, statutes, and constitutions as they shall see necessary for
the instituting, guiding, and furthering of the said College, and the
several members thereof, from time to time, in piety, morality, and
learning; as also to dispose, order, and manage, to the use and be-
hoof of the said College and the members thereof, all gifts, legacies,
bequeaths, revenues, lands, and donations, as either have been, are,
or shall be conferred, bestowed, or anyways shall fall or come to
the said College.
134 APPENDIX.
Clause
And whereas it may come to pass that many of the said magis-
trates and elders may be absent, or otherwise employed in other
weighty affairs, when the said College may need their present help
and counsel, - It is therefore ordered, that the greater number of
magistrates and elders, which shall be present with the President,
shall have the power of the whole. Provided, that if any constitu-
tion, order, or orders, by them made, shall be found hurtful unto
the said College or the members thereof, or to the weal-public,
then, upon appeal of the party or parties grieved unto the company
of Overseers first mentioned, they shall repeal the said order or
orders, if they shall see cause, at their next meeting, or stand
accountable thereof to the next General Court.
NO. II.
THE CHARTER OF THE PRESIDENT AND FELLOWS OF HARVARD
CoLLEGE, UNDER THE SEAL OF THE COLONY OF MASSACHUSETTS
BAY, AND BEARING DATE MAY 30, A. D. 1650.*
WHEREAs, through the good hand of God, many well-devoted
persons have been, and daily are, moved and stirred up to give
and bestow sundry gifts, legacies, lands, and revenues, for the ad-
vancement of all good literature, arts, and sciences in HARVARD
CoLLEGE, in Cambridge, in the county of Middlesex, and to the
maintenance of the President and Fellows, and for all accommoda-
tions of buildings, and all other necessary provisions that may con-
duce to the education of the English and Indian youth of this coun-
try in knowledge and godliness : —
It is therefore ordered and enacted by this Court and the au-
thority thereof, that for the furthering of so good a work, and for
the purposes aforesaid, from henceforth that the said College in
Cambridge, in Middlesex, in New England, shall be a Corporation,
consisting of seven persons, to wit, a President, five Fellows, and
% The clauses in the Charter referred to in the preceding Report are indicat-
ed in the margin for facility of reference.
THE CHARTER, 135
a Treasurer or Bursar; and that HENRY DUNSTER shall be the
first President, SAMUEL MATHER, SAMUEL DANFORTH, Masters of
Art, JonATHAN MITCHELL, COMFORT STARR, and SAMUEL EATON,
Bachelors of Art, shall be the five Fellows, and THOMAs DAN-
FORTH to be present Treasurer, all of them being inhabitants in
the Bay, and shall be the first seven persons of which the said
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 counsel 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 President and Fellows for the time being shall for ever
hereafter, in name and fact, be one body politic and corporate in
law, to all intents and purposes, and shall have perpetual suc-
cession, and shall be called by the name of President and Fel-
lows of Harvard College, and shall from time to time be eligible
as aforesaid; and by that name they and their successors shall
and may purchase and acquire to themselves, or take and receive
upon free gift and donation, any lands, tenements, or hereditaments,
within the jurisdiction of the Massachusetts, not exceeding the
value of five hundred pounds per annum, and any goods and sums
of money whatsoever, to the use and behoof of the said President,
Fellows, and scholars of the said College; and also may sue and
plead, or be sued and impleaded, by the name aforesaid, in all
courts and places of judicature within the jurisdiction aforesaid.
And that the said President, with any three of the Fellows, shall
have power, and are hereby authorized, when they shall think fit,
to make and appoint a common seal for the use of the said Corpora-
tion. And the President and Fellows, or major part of them,
from time to time, may meet and choose such officers and servants
for the College, and make such allowance to them, and them also
to remove, and, after death, or removal, to choose such others, and
to make, from time to time, such orders and by-laws, for the better
ordering and carrying on the work of the College, as they shall
think fit ; provided, the said orders be allowed by the Overseers.
And also, that the President and Fellows, or major part of them,
with the Treasurer, shall have power to make conclusive bargains
for lands and tenements, to be purchased by the said Corporation
for valuable considerations.
Clause
II.
Clause
III.
Clause
IV.
136 APPENDIX.
Clause
V.
And for the better ordering of the government of the said Col-
lege and Corporation, Be it enacted by the authority aforesaid,
that the President, and three more of the Fellows, shall and may,
from time to time, upon due warning or notice given by the Presi-
dent to the rest, hold a meeting for the debating and concluding of
affairs concerning the profits and revenues of any lands, and dispos-
ing of their goods (provided that all the said disposings be accord-
ing to the will of the donors); and for direction in all emergent oc-
casions; execution of all orders and by-laws; and for the procuring
of a general meeting of all the Overseers and Society, in great and
difficult cases; and in cases of non-agreement; in all which cases
aforesaid, the conclusion shall be made by the major part, the said
President having a casting voice, the Overseers consenting there-
unto ; and that all the aforesaid transactions shall tend to and for
the use and behoof of the President, Fellows, scholars, and officers
of the said College, and for all accommodations of buildings, books,
and all other necessary provisions and furnitures as may be for the
advancement and education of youth in all manner of good litera-
ture, arts, and sciences. And, further, be it ordered by this Court,
and the authority thereof, that all the lands, tenements, and heredit-
aments, houses, or revenues, within this jurisdiction, to the afore-
said President or College appertaining, not exceeding the value of
five hundred pounds per annum, shall from henceforth be freed
from all civil impositions, taxes, and rates; all goods to the said
Corporation, or to any scholars thereof appertaining, shall be ex-
Clause
WI.
empted from all manner of toll, customs, and excise whatsoever.
Clause
VII.
And that the said President, Fellows, and scholars, together with
the servants, and other necessary officers to the said President, or
College appertaining, not exceeding ten, viz. three to the President,
and seven to the College belonging, shall be exempted from all per-
sonal civil offices, military exercises or services, watchings and
wardings: and such of their estates, not exceeding one hundred
pounds a man, shall be free from all country taxes or rates what-
soever, and no other.
In witness whereof, the Court hath caused the seal of the Colony
to be hereunto affixed. Dated the one and thirtieth day of the
third month, called May, anno 1650.
[L. S.] THOMAS DUDLEY, Governor.
APPENDIX TO THE CHARTER. 137
NO. III.
AN APPENDIX To THE COLLEGE CHARTER, GRANTED BY AN ACT OF
THE GENERAL COURT OF THE COLONY, PASSED A. D. 1657.
At a General Court held at Boston, the 14th of October, 1657.
IN answer to certain proposals presented to this Court by the
Overseers of HARVARD COLLEGE, as an Appendix to the College
Charter, it is ordered, The Corporation shall have power, from time
to time, to make such orders and by-laws, for the better ordering
and carrying on of the work of the College, as they shall see
cause, without dependence upon the consent of the Overseers fore-
going. Provided always, that the Corporation shall be responsible
unto, and those orders and by-laws shall be alterable by, the Over-
seers, according to their discretion.
And when the Corporation shall hold a meeting for agreeing with
College servants; for making of orders and by-laws; for debating
and concluding of affairs concerning the profits and revenues of any
lands or gifts, and the disposing thereof (provided that all the said
disposals be according to the will of the donors); for managing of
all emergent occasions, for the procuring of a general meeting of
the Overseers and Society in great and difficult cases, and in cases
of non-agreement; and for all other College affairs to them pertain-
ing, — in all these cases the conclusion shall be valid, being made
by the major part of the Corporation, the President having a casting
vote. Provided always, that, in these things also, they be re-
sponsible to the Overseers as aforesaid.
And in case the Corporation shall see cause to call a meeting of
the Overseers, or the Overseers shall think good to meet of them-
selves, it shall be sufficient unto the validity of College acts, that
notice be given to the Overseers in the six towns mentioned in the
printed law, anno 1642, when the rest of the Overseers, by reason
of the remoteness of their habitations, cannot conveniently be ac-
quainted therewith.
18
138 APPENDIX,
NO. IV.
REPORT OF Overs EERS’ COMMITTEE, MAY 13, 1761, RESPECTING
THE POWER OF THE CORPORATION TO MAKE ALLOWANCEs TO
THE GOvIRNORS OF THE COLLEGE, WITHOUT THE CONSENT OF
THE OVERSEERs. THE COMMITTEE APPOINTED Novemſ BER 20,
1760.
THE Committee appointed the 20th of November last, by the
Overseers of Harvard College, to consider “whether it be in the
power of the Corporation to make allowances to those who are em-
ployed in the government of the College, without the consent of
the Overseers,” have carefully examined the College Charter; and
find by said Charter, (which was granted in the year 1650,) that
the Corporation have no power to make allowances to those who
are employed in the government of the College, without the consent
of the Overseers; and are of opinion that, so far as they have made
such allowances, they have acted irregular.
The Charter gives the Corporation power to hold meetings “for
concluding of affairs concerning the profits and revenues of any
lands, and disposing of their goods, &c., in all which cases the con-
clusion shall be made by the major part, the Overseers consenting
thereunto.” From this clause it is plain that the consent of the
Overseers is necessary to the disposing of the revenues of the Col-
lege, in all cases wherein the Charter has not empowered the Cor-
poration to dispose of said revenues independent of the Overseers.
The Corporation “may choose officers and servants for the College,
and make such allowances to them as they think fit”; but these
allowances are to such officers (and those only) the choice of whom
is in the Corporation independent of the Overseers. From this
clause, then, it cannot be inferred that the Corporation have an
independent right of making allowances to Such as are to be chosen
with the consent of the Overseers; nor, consequently, can it relate
to such allowances as are made to their own members, to the choice
and establishment of whom the consent of the Overseers is abso-
lutely necessary. Further upon this head, the officers in said clause
intended are neither the President nor Fellows, nor any concerned
in the government of the College, but such officers as are ranked
REPORT TO OVERSEERS IN 1761. 139
after the scholars of the College; as may be collected from a subse-
quent clause of the Charter, wherein it is said, “that all the trans-
actions aforesaid shall tend to the use and behoof of the President,
Fellows, scholars, and officers of the College.” The officers here
intended, no doubt, are the Steward and Butler, and any other
officers (if such there be) not concerned in the government of the
College.
With regard to those who are concerned in the government of
the College, the College revenues are to be disposed of with the
consent of the Overseers. The introduction to said clause runs
thus: “And for the better ordering of the government of said Col-
lege and Corporation, be it enacted,” &c. The disposing of the
revenues in this clause mentioned is such a disposing as shall tend
to the better ordering of the government of the College; that is, it
is a disposing of said revenues to the support and encouragement of
those concerned in the government of the College, for without such
a disposition, the government of the College could not be well or-
dered, nor indeed subsist at all. With regard to this kind of dispo-
sition of said revenues, the consent of the Overseers is necessary.
And this was the opinion of the General Court in 1722, as may be
seen by the following Resolve: “That the President and Fellows of
the said College, or the major part of them, are not warranted by
the said Charter of the College [the Charter of 1650] to fix or
establish any salary or allowance for their service, without the
approbation and consent of the Overseers.” This Resolve, being
connected with others which the Governor did not fully approve,
he gave only a conditional assent to ; which manner of assent the
House of Representatives remonstrated against. The Resolve, how-
ever, shows the sense of the General Court.
How long the Corporation have been in the practice of making
grants and allowances to those employed in the government of the
College, independent of the Overseers, we don't know; but we find
in 1732, that the Overseers asserted their right in this matter, and
ordered a copy of their vote to be delivered to the Corporation.
This practice of the Corporation is not only contrary to the Col-
lege Charter, but contrary to the usage of all well-regulated socie-
ties, who never permit their officers to settle the quantum of their
own salaries, and then pay themselves out of the common treasury.
And the impropriety of such a practice the Corporation themselves
140 APPENDIX.
have been very sensible of, as appears by a memorial of theirs to
the Governor and Council, signed by President Leverett, wherein
they declare (though they think it belongs wholly to them to make
allowances to those who do service in the College) that it is unrea-
sonable the “major part of the Corporation should be of those who
receive salaries or allowances from the College. In such cases,
they think, none ought to carve for themselves.” They also “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”; and con-
sequently they must have thought (in order to be consistent) that it
was contrary to the light of nature that any should have any over-
ruling voice in settling the quantum of salaries which themselves
were to have the sole benefit of.
By what is said above, we do not mean to detract from the merit
of the Corporation, or to insinuate that they have made unreasona-
ble grants or allowances to any of their own body; on the contrary,
we esteem them gentlemen of honor and probity, and think the
allowances that any of them have had much less than the nature of
their office and their personal worth require.
Upon the whole, the Committee are clearly of opinion that the
Corporation have no power to make allowances to those who are
employed in the government of the College, without the consent of
the Overseers; and they purpose that the following votes should
be passed by the Overseers, viz.:-
1. That, according to the Charter aforesaid, the Corporation have
no right to made allowances to persons employed in the government
of the College, without the consent of the Overseers.
2. That the College Treasurer be directed for the future to pay
no grants or allowances made to persons employed as aforesaid, till
the consent of the Overseers be first obtained, and signified to him
under the hand of their clerk.
Which is humbly submitted.
ANDREW OLIVER, per order.
13 May, 1761.
Copy. Attest,
ANDREW ELIOT, C. C.
REPLY OF THE CORPORATION IN 1761. 141
NO. V.
CoRPORATION's REPLY TO THE CLAIM OF THE OVERSEERS RESPECT-
ING THE MARING ALLow ANCES TO THE GOVERNORS OF THE COL-
LEGE, IN ANswer. To THE OVERSEERS’ COMMITTEE. MAY 13, 1761.
THE Honorable and Reverend Overseers of Harvard College hav-
ing ordered the Corporation of said College to be served with a copy
of a Report of a Committee appointed November 20, 1760, to con-
sider whether it be in the power of the Corporation to make allow-
ances to those who are employed in the government or instruction
of the College, without the consent of the Overseers: we, the Pres-
ident and Fellows of said College, have carefully perused the said
Report; and apprehending it to be grounded entirely upon a mis-
take of the meaning of one clause in our Charter, we think ourselves
in duty bound briefly to represent some of the reasons of such our
apprehension. *
To us, then, it seems evident, from the situation in which our
Charter hath put us, that it belongs solely to the President and Fel-
lows of Harvard College to make such disposals of the goods and
revenues of the College as they judge to be according to the will of
the donors.
For they are liable to be sued in all courts and places of judica-
ture within the jurisdiction of the Province of the Massachusetts
Bay; and to some of their benefactors they have given bonds, by
virtue of which their benefactors’ heirs in all future times are em-
powered to sue for and recover the donations of their ancestors, if
not disposed of according to the donor's will. Now, how great an
hardship would it be upon any body corporate to be liable to be
sued in courts of judicature, for not disposing of goods or sums of
money according to the donor's will, supposing another body of men,
who are not liable to be sued, have power to put a negative upon
any of their disposings.
'T is true the Honorable and Reverend Committee of the Over-
seers, in their Report, seem to carry this negative power no further
than to allowances made to persons employed in the government of
the College. But if the Committee have not mistaken the meaning
of the paragraph in the Charter upon which they ground their argu-
142 APPENDIX.
ment, this negative power must be extended much farther, even to
all disposings of the goods and revenues of the College whatsoever,
and to several other things, which we apprehend big with absurdity,
if not contradiction. Whereas, if we understand the passage right,
it contains nothing inconsistent with the practice we have been
always in, nor are there any difficulties involved in it.
To set this matter in a proper light, it will be needful to rehearse
the whole paragraph, which is as follows: —
“And for the better ordering the government of the said College
and Corporation, be it enacted by the authority aforesaid, That the
President and three more of the Fellows shall and may, from time
to time, upon due warning, or notice given by the President to the
rest, hold a meeting for the debating and concluding of affairs con-
cerning the profit and revenues of any lands, and disposing of their
goods. Provided, that all the said disposings be according to the will
of the donors. And for direction in all emergent occasions, execution
of all orders and by-laws, and for the procuring of a general meeting
of all the Overseers and Society in great and difficult cases, and in
cases of non-agreement. In all which cases aforesaid, the conclu-
sion shall be made by the major part, the said President having a
casting voice, the Overseers consenting thereunto.”
This paragraph seems to have some obscurity in it; but one
inquiry well answered will easily fix its meaning. The only ques-
tion is, how far those words, “in all which cases aforesaid,” may be
supposed to refer back 2 If they have a retrospect so far as the
honorable Committee think they have, then it is plain, –
1. That the Corporation can conclude no affair touching the
profit or revenue of any lands. They cannot determine for what
rent a piece of land may be leased, nor can they give a lease of it,
without the consent of the Overseers.
2. Without such consent, they can make no disposal of their
goods, how agreeable soever such disposings may be to the will of
the donor, − not so much as an allowance of forty shillings to a poor
scholar at Salem or Dorchester. And if (as it is the case in many
instances) the person or persons to whom such disposings are to be
made, are plainly described and pointed out in the will of the donor,
yet the Overseers will have it in their power to put a negative upon
such disposal, and thereby render the Corporation obnoxious to a
prosecution in law from the donor or his heirs, for not doing what
the Overseers may have put it out of their power to do.
REPLY OF THE CORPORATION IN 1761. 143
3. Wo direction can be given upon any emergent occasions, till
the Overseers have consented thereunto, though the nature of emer-
gencies is often such as requires that some proper direction should
be given immediately.
4. No order or by-law can be executed, without the Overseers’
consent; which is to suppose that the whole legislature of the Col-
lege must come together and consent in the execution of every law.
Finally, -
5. No general meeting of the Overseers can be procured, till they
have come together (by what means we cannot tell), and consented
to have such a meeting.
All these things, we apprehend, lie much plainer in the paragraph
which hath been read, than that the Corporation have no right to
make allowances to persons employed in the government of the College,
without the consent of the Overseers ; concerning which we cannot
find one word here. Nor do the honorable Committee attempt to
deduce it from anything here, otherwise than by a pretty remote
consequence. We say this upon supposition of what we can by no
means persuade ourselves to believe, viz. that the Committee were
not mistaken when they understood the words, in all which cases,
to refer to the two first things contained in the paragraph before
us, upon which they ground their argument. For if the two first
things mentioned in this paragraph of our Charter are among the
cases referred to, be sure all that follow must be so too. And upon
that supposition, nothing can be plainer, than that the consent of the
Overseers, in all the instances which have been mentioned, must be
necessary. But to suppose that the Corporation cannot settle the
rent of a piece of land, or give a lease of it; that they cannot dis-
pose of forty shillings to a poor scholar pointed out by the donor;
that they can give no direction upon any emergent occasion ; that
no law or order can be executed, nor any general meeting of the
Overseers procured; – to suppose that none of these things can be
done without the consent of the Overseers, would so perplex and
embarrass all the affairs of the College, and render such frequent
meetings of the Overseers necessary, that we cannot think the
passage under consideration was ever so intended, or Ought to be
so understood, especially since there is another natural and easy
construction of it which removes all these difficulties.
We suppose, then, that the words, in all which cases, refer no
144 APPENDIX.
farther back than to the cases just before mentioned, which may
sometimes happen to be numerous enough, viz. great and difficult
cases, and in case of non-agreement. In all such cases the Corpora-
tion is to procure a general meeting of the Overseers’ Society, and
the conclusion shall be made by the major part, the President having
a casting voice, the Overseers consenting thereunto. If this easy
construction be the true one, as we are persuaded it is, all seeming
obscurity and difficulties are removed, and there is no foundation
in the paragraph before us, nor, we think, anywhere else in the
Charter, for the Report of the honorable Committee. But the
practice of the Corporation hath been regular, and agreeable to the
Constitution, and not contrary to the usage of all well-regulated
Societies. For, if we are not greatly mistaken, the General Assem-
bly of this Province settle the quantum of their own reward for their
public service, and are paid out of the common treasury.”
NO. VI.
AT a stated meeting of the President and Fellows of Harvard
College, in Boston, November 27, 1852: —
Chief Justice Shaw made the following Report on the subject of
the Treasurer's Salary, which was accepted.
THE COMMITTEE TO WHOM WAS REFERRED THE SUBJECT OF AT-
TACHING A COMPENSATION TO THE OFFICE OF THE TREASURER,
RESPECTFULLY FIEPORT : —
THAT from the records it appears that it was usual to make such
compensation, in the form of an annual salary, or by especial grants
of money, up to the year 1827, when the office was conferred upon
an eminently wealthy merchant, who rendered the service gratui-
tously for the space of three years; that it was then given to a suc-
cessor, also of great wealth, who performed its duties in like manner
for the period of twelve years; and was then entered upon by the
present Treasurer, who has now discharged this onerous trust, with-
out other recompense than the consciousness of service thus gener-
REPORT ON THE TREASURER’s SALARY. 145
ously rendered, for the past ten years. That the services, thus
gratuitously given, have been most faithfully and honorably per-
formed, involving great expenditures of time and knowledge, and
under heavy moral responsibilities, which entitle all these gentle-
men to the lasting gratitude of the College.
The properties of the College, however, have been of late years
much increased in number and value, and are prospectively soon to
be augmented ; and its affairs, and especially those pertaining to
the Treasurership, owing to the multiplicity of the schools and de-
partments, and increase of officers and students, have become mul-
tifarious and complicated, and the suitable investment of its per-
sonal estates involves constantly increasing demands upon the time,
financial skill, and responsibilities of the Treasurer. While, at the
same time, the general superintendence of the real estates, natu-
rally falling within the scope of his duties and operations, and
the sales and management thereof devolving upon him, constitute
further and very frequent and urgent claims upon his care and at-
tention.
In view of these considerations, the Committee are of opinion
that it is altogether unreasonable to expect that the services of an
office so laborious, and involving the exercise of so much skill,
and under such great responsibilities, should be rendered gratui-
tously.
And they are further of opinion, that a just sense of responsi-
bility on the part of any one who may occupy that station, and a
suitable readiness on the part of the Corporation to exact a careful
and strict performance of its duties, and exact remuneration for
loss arising from any omission of them, would be more fully se-
cured by attaching to their discharge a reasonable reward, than by
the receipt of it as a favor rendered. *
The Committee, for these reasons, are of opinion that a perma-
ment salary should be attached to this office; and, upon consideration
of the amount of personal property in the Treasurer's keeping, and
of the annual income and its expenditure, and the compensation
usually allowed to trustees, and by courts of law and probate, for
like services, – and the incidental services rendered by him in the
affairs of the College, – are satisfied that one of fifteen hundred
dollars annually, payable in quarterly instalments, with such fur-
ther sum annually for office rent, clerk hire, and incidental ex-
19
146 APPENDIX.
penses as may be found necessary, would be a suitable allowance.
And they recommend that the same be henceforth allowed and paid,
commencing the first payment at the expiration of the first quarter
of the present academical year.
All of which is respectfully submitted.
JARED SPARKS,
LEMUEL SHAW,
CHARLES G. LORING.
NO. VII.3%
AT a Meeting of the BOARD OF OVERSEERs of HARVARD
COLLEGE, held in the Senate Chamber, in Boston, on the 31st day
of January, 1856, his Excellency the Governor in the Chair, the
Hon. GEORGE MoREY presented the following
R. E. P. O. R. T.
THE COMMITTEE OF THE OVERSEERS OF HARVARD COLLEGE, AP-
POINTED ON THE 12TH OF APRIL, 1855, TO CONSIDER AND REPORT
ON THE RELATIVE Powers, DUTIES, AND RESPONSIBILITIES 6F
THE PRESIDENT AND FELLOWs, AND OF THE OVERSEERS OF HAR-
VARD COLLEGE, MORE ESPECIALLY IN RELATION TO APPOINT-
MENTS, TENURE OF OFFICE, SALARIES, AND FINANCEs, HAVE
CONSIDERED THE MATTERS REFERRED TO THEM, AND RESPECT-
FULLY SUBMIT THE FOLLOWING REPORT.
WHEN the resolution, under which the Committee was appointed,
was adopted, the Board could hardly have been aware how exten-
* The Report of the Committee of the Board of Overseers, which has given
rise to this discussion, is continually referred to, and a large proportion of it
cited, in this Report. To enable the reader to judge of the fairness of these
references and citations, the whole of that Report is, with the consent of the
Committee of the Overseers, herewith annexed. The paging of the original
edition is given in brackets immediately before the first word of the page.
REPORT TO THE OVERSEERs, 1856. 147
sive was the field of inquiry which the Committee were required
to examine, or how imperfectly the same had previously been ex-
plored. It is somewhat remarkable, considering the various and
important relations which exist between the Corporation and the
Overseers, that from the beginning down to the present time, em-
bracing a period of more than two centuries, not a single question
touching the relative [4] powers, rights, or duties of these two
Boards has, so far as the Committee can learn, been brought to a
legal decision, or been solemnly argued, or even presented by both
parties in proper form for argument and adjudication.
The Committee, therefore, for this and other reasons, which will
appear in the course of this Report, are brought to an examination
and consideration of the several Acts, by which these two Boards
were established, and of the other Acts supplementary thereto, with
less aid in the construction thereof than might have been ex-
pected.
With these preliminary observations, the Committee will proceed
to examine and consider the legislative Acts, by which the powers,
rights, and duties of the two Boards were originally conferred and
prescribed.
In the year 1642, the first Act was passed, creating a Govern-
ment over this Seminary at Cambridge, which was entitled, “The
Act establishing the Overseers of Harvard College.” This Board
consisted of the Governor and Deputy Governor, all the Magis-
trates of the Colony of Massachusetts, and the Teaching Elders of
the following towns, viz.: Cambridge, Watertown, Charlestown,
Boston, Roxbury, and Dorchester, together with the President of
the College.
It could hardly have been expected, that a system so cumbrous
would long continue without some important change; and we find
that the Colonial Legislature, in the year 1650, did proceed to pass
an Act, commonly denominated the Charter, by which a Corpora-
tion was created, consisting of a [5] President, five Fellows, and a
Treasurer, upon whom and their successors all such powers were
conferred as it was supposed the safety of the funds and the success-
ful management thereof, - the prosperity and good of the College,
would require ; and the title to all lands and other property of the
College, then existing, or which might be afterwards acquired, was
vested in the said Corporation, which, being a small, and to a cer-
148 AIPPENDIX.
tain extent an independent body, would be able safely and satisfac-
torily to manage its pecuniary affairs. This was deemed a matter
of great importance; for, prior to this time, although it was sup-
posed such lands and property were held in trust by the Colony,
yet it was somewhat doubtful where the title to the same actually
rested ; and if in the Colony, the depositary or trustee could not
but be regarded as less suitable and satisfactory than the one es-
tablished by said Charter.
By this Act said Corporation is empowered to purchase, or other-
wise acquire, real estate or personal property, and hold the same
for the use and behoof of the President, Fellows, scholars, and
officers of said College. It is also enacted in said Charter, that
the said Corporation, or the major part of them, “may meet and
choose such officers and servants for the College, and make such
allowance to them, and them also to remove, and, after death or
removal, to choose such others, and to make, from time to time, such
orders and by-laws for the better ordering and carrying on the work
of the College, as they shall think fit; provided, the said orders be
allowed by the Overseers.”
And it is further provided by said Act, that the [6] President,
and three more of the Fellows, may hold a meeting for the debat-
ing and concluding of affairs concerning the profits and revenues of
any lands, and disposing of their goods, &c.; in all which cases
aforesaid, the conclusion shall be made by the major part, the said
President having a casting vote, the Overseers consenting there-
202fO.
By this Act some powers are granted to the President and Fel-
lows to be exercised by them alone, and many other powers are
conferred upon them and the Overseers; that is, the President and
Fellows, in all such cases taking the initiative, may pass an Ordi-
nance or by-law, make an appointment, vote salaries, &c., and send
the record of their doings to the Overseers for their approval,
which, being assented to and confirmed, become complete and valid
actS.
It was soon found that great delay and inconvenience were suf-
fered on account of the difficulty of procuring meetings of such a
body as the Board of Overseers, the members thereof being mu-
merous and scattered over the whole Colony; and the consequence
was, that much time might elapse after the adoption of any measure
REPORT TO THE OVERSEERs, 1856. 149
by the Corporation, before it could go into effect, for want of con-
firmation by the Overseers. These and other evils gave rise to an
Act, called the Appendix to the College Charter. This Supple-
mentary Act of the Colonial Legislature was passed on the 14th of
October, 1657, and its provisions are as follows, viz.: —
“The Corporation shall have power, from time to time, to make
such orders and by-laws, for the [7] better ordering and carrying
on the work of the College, as they shall see cause, without depend-
ence upon the consent of the Overseers foregoing. PROVIDED
ALWAYs, that the Corporation shall be responsible unto, and those
orders and by-laws shall be alterable by, the Overseers, according to
their discretion.
“And when the Corporation shall hold a meeting for agreeing
with College servants, for making of orders and by-laws, for debat-
ing and concluding of affairs concerning the profits and revenues of
any lands or gifts, and the disposing thereof (provided that all the
said disposals be according to the will of the donors), for managing
of all emergent occasions, for the procuring of a general meeting of
the Overseers and Society in great and difficult cases, and in cases
of non-agreement, and for all other College affairs to them pertain-
ing ; —in all these cases the conclusion shall be valid, being made
by the major part of the Corporation, the President having a cast-
ing vote. PROVIDED ALWAYs, that, in these things ALso, they be
responsible to the Overseers As AFORESAID.
“And in case the Corporation shall see cause to call a meeting
of the Overseers, or the Overseers shall think good to meet of
themselves, it shall be sufficient unto the validity of College acts,
that notice be given to the Overseers in the six towns mentioned in
the printed law, anno 1642, when the rest of the Overseers, by
reason of the remoteness of their habitations, cannot conveniently
be acquainted therewith.”
The Charter of 1650 was granted on the petition [8] of Henry
Dunster, who was thereby made President of the Corporation; but
the Act of 1657 appears to have been passed on “certain proposals
of the Overseers.” The latter Board probably wished to be re-
lieved from the necessity of frequent meetings, and to be able to
call such meetings as they desired to hold, with more facility and
convenience; and the Corporation was made a more efficient body
by virtue of the provisions in this Appendix.
150 APPEND IX,
Under this Act many of the votes of the President and Fellows
go into immediate effect, without dependence upon the consent of
the Overseers, respecting which votes the latter Board previously
possessed what may be called, for the purpose of distinction, the
right of confirmation ; and until such confirmation took place, the
said acts of the Corporation did not become valid. Still it is pro-
vided by said Appendix, that the Corporation shall be responsible
unto, and such votes or doings are made alterable by, the Overseers,
according to their discretion. This may be denominated the right
of revision, which, though less direct than the right of confirmation,
yet, being extended to various acts and doings of the Corporation,
seemed not only to furnish a sufficient security for the correction of
errors, but to give to this Board all necessary control, and even a
larger one than existed before.
The Corporation, however, seemed for a time to be gainers by
this additional legislation, inasmuch as, while more of their votes
went into operation at once, no express provision was made, requir-
ing them to send such votes to the other Board. In [9] con-
sequence thereof, the Corporation kept close upon their books
most of their doings, and it sometimes happened that important
votes or orders were unknown to the Overseers for years.
At length the Overseers, whenever they desired to have posses-
sion of a particular vote of the Corporation, proceeded to send a
formal order or request to that body for the same. The Corpora-
tion of course duly submitted to the call, and furnished the vote re-
quired. A more suitable remedy might have been provided by the
adoption of special joint rules by the two Boards, regulating the
transmission of the votes or orders of the Corporation to the Over-
SeeTS.
The Committee will now proceed to consider the four particular
matters specified in the resolution or vote of this Board, adopted
April 12, 1855; and this they will do in such order as they find
most convenient. The first subject, to which they will call the at-
tention of the Board, is that of the College Finances.
The Funds of the College are under the immediate charge of the
Treasurer, who is subject to the orders and special directions of the
Corporation; and a detailed statement of the condition of said funds,
and of all receipts and expenditures, is made annually by the Treas-
urer to the Government of the University, which is examined by a
REPORT TO THE OVERSEERs, 1856. 151
Committee of the Corporation and Overseers, whose certificate or
report is presented to the Overseers at their annual meeting. It
has not been the practice of the Corporation to make any separate
communication to the Overseers of their doings in relation to the
[10] finances. Still, if the Corporation should at any time have in
contemplation some unusual financial operation, such as disposing
of the real estate, in whole or in part, belonging to the College, or
erecting a new College hall or chapel, or adopting some important
change respecting the College funds, it would seem fit and proper
that they should, before any action is taken by them, make known
their intentions to this Board, so that the Overseers might express
their approval thereof, or interpose their objections, if they had any,
to the plans of the Corporation. In this way the provisions of the
constitution of the College would not fail to be complied with, and
the Overseers would be sure to have an opportunity to exercise all
the rights and powers which may belong to them.
In this connection the Committee deem it proper to add some re-
marks respecting Donations made to the College.
If a simple bequest, or gift, without any qualification or condition,
be made to the College, of a sum of money, the Overseers may well
have a right to expect that the Corporation will give them official
notice of the same ; although, under ordinary circumstances, it
might not be deemed a matter of any great importance. But when
the donation is upon a particular condition, or is accompanied by a
special trust, the Committee are persuaded that the vote of accept-
ance by the Corporation is not sufficient and complete until such
vote is concurred in by this Board. Otherwise the Overseers might
be obliged, or compelled by an order of court, to aid in the execu-
tion of a trust, which they have not [11] sanctioned, nor ever would
have consented to, if the same had been laid before them for their
approval.
The Committee, therefore, are of opinion, that it is the duty of
the Corporation to submit to this Board the question of the accept-
ance of every donation accompanied by a special trust, or imposing
some particular obligation upon the government of the College. It
appears by the records of this Board, that the proposal of Mr. Hollis
to endow a Professorship of Divinity was by the Corporation laid
before the Overseers, who expressed much gratification on the occa-
sion, and appointed a committee to prepare an appropriate letter of
152 APPENDIX.
thanks to this distinguished benefactor of the College; and at divers
times, questions respecting donations have been presented to the
Overseers, and acted upon by them, and votes of thanks to the do-
Inors have often been passed.
For the purpose of further showing what has been the practice in
this respect, the Committee think proper to cite the following cases,
viz.: In the year 1791, the President laid before the Corporation a
letter from James Bowdoin, Esq., stating that his father, the Hon.
James Bowdoin, deceased, had by his last will bequeathed to the
University a legacy of £400, the interest of which was to be applied
in the way of premiums for the advancement of useful and polite
literature among the residents, as well graduates as undergraduates,
of the University, and that the executors were ready to pay the
same ; whereupon it was voted to accept the aforesaid legacy upon
the conditions pointed out by the testator, and that Ebenezer Storer,
Esq., [12] the Treasurer of the University, receive the same. This
vote of the Corporation being presented to the Overseers, it was
voted to concur with the Corporation in accepting this legacy, and
appointing the Treasurer to receive it. A committee of the Over-
seers was then appointed to consider what was proper to be entered
on their records relative to Mr. Bowdoin’s legacy; which commit-
tee, at a meeting of the Overseers, held May 3, 1791, made a
report, and recommended the adoption of the following vote, viz.:
“Voted, That this Board have a due sense of Hon. Mr. Bowdoin’s
attachment to the interests of virtue and science in general, from
a series of important services in the course of his life, and to the
prosperity of the University in particular, from his uniform exer-
tions to promote its welfare while living, and from his liberal dona-
tion to it which he made in his last will and testament.” Which
report and vote were adopted by the Board.
In the year 1814, the Corporation passed the following vote, viz.:
Voted, That the documents relating to the donation of Samuel
Parkman, Esq. of a township of land for the purpose of promoting
the interests of religion and science, and of religious and scientific
education in the University, with the vote of the President and Fel-
lows on the subject, be laid before the Honorable and Reverend, the
Overseers, and they be requested, if they see fit, to concur in said
vote. This vote was laid before the Overseers and concurred in.
In the year 1829, the following vote was adopted by the Corpo-
REPORT TO THE OVERSEERs, 1856. - 153
ration, Judge Story being then a member, viz.: Voted, That this
Board accept the donation [13] of the Hon. Nathan Dane for
founding a Professorship of Law, on the terms and cond-10ns set
forth in his communication to the Corporation, dated Jºe 2, 1829:
and that the above proceedings be laid before the 2Verseers, that
they may approve the same, if they see fit. The Vote, being laid
before the Overseers, was concurred in.
In the course of the last year some in portant questions came
before this Board respecting a liberal dolation made to the College
by Miss Caroline Plummer, of Salem, who, by a codicil to her last
will and testament, made provisiox for establishing a new Professor-
ship in the University. No vote of the President and Fellows,
accepting said donation, was laid before the Overseers for their con-
currence, the subject being first brought to their notice by the pre-
sentation to them by the Corporation of certain rules and statutes of
the proposed professorship, and of the name of a candidate to fill
the same. The whole subject was then referred to a very able
committee, consisting of five distinguished gentlemen of this Board,
of which committee Hon. Robert C. Winthrop was Chairman, and a
munificent benefactor of the College, the late lamented Mr. Law-
rence, was a member.
After much consideration, the committee made an elaborate re-
port, recommending among other things that the Overseers should
concur with the Corporation in the acceptance of said bequest, and
in the establishment of a new Professorship, agreeably to the terms
thereof. This report was adopted with great unanimity. The
language and action of said committee may be regarded as a distinct
[14] expression of opinion by them, that every donation accompa-
nied by a trust should be laid before the Overseers for their consid-
eration, and be acted upon by them.
The Committee will now proceed to say a few words on the sub-
ject of Appointments.
This seems to have been regarded at all times as a matter in
relation to which the action of the Corporation did not take effect
until the same was confirmed by the Overseers. The Corporation
have therefore uniformly sent their votes or orders, by which ap-
pointments have been made, to this Board for approval.
It is often found convenient, and even necessary, that tutors and
some other officers, chosen by the Corporation to fill vacancies,
20
154 APPENDIX.
*uld enter on the discharge of official duties previous to the action
of the Overseers on such election ; and if an instructor or officer so
elected should fail to be confirmed, it seems reasonable that he
should receive the salary attached to the office up to the time of
such adverse deision of this Board.
It has been a requent practice, when a new Professorship or
other office is established by the Corporation, for them to send a
record of their action on the subject to this Board, and at the same
time present a vote, appointug on their part some person to fill the
office. This is deemed by the Committee an irregularity, and may
be a source of much embarrassmeº, and difficulty. The Committee,
therefore, trust the Corporation will not hereafter proceed to an
election to fill an office, till its establishment has received the ap-
proval of this Board.
[15] The Committee will now briefly notic, the subject of the
tenure by which offices are held in the University. It may be con-
sidered, as a general rule, that the instructors or officers in the
College hold their offices during the pleasure of both Boards, and
may be removed by them. If, by a statute or vote of both Boards,
a certain term or limited period is prescribed for an incumbent to
hold any office, it is an irregularity for him to be permitted to remain
in office after such term has expired. It is also clearly an irregular-
ity for an appointee of the Corporation to continue as an instructor
or officer after his nomination has been rejected by the Overseers.
The Committee have now reached the subject of Salaries, which
is the only remaining topic specified in the resolution by which they
were appointed.
It is provided in the Charter, in substance, as appears in the
passage herein above cited, that the Corporation may meet and
make such allowances to the College officers or servants as they
shall think fit; provided, their orders or doings on the subject be
allowed by the Overseers. This provision is contained in the very
section or part of the Act in which the matter of appointments is
regulated, and that too by the same phraseology as is used touching
salaries; and it has never been questioned by the Corporation that
all such appointments or elections require the confirmation of the
Overseers. But the Corporation has, on some occasions, particu-
larly during a considerable period immediately preceding the year
1761, pursued a course which indicated that in their opinion they
REPORT TO THE OVERSEERs, 1856. 155
could, by virtue of the said Appendix to the Charter, prescribe sal-
aries for the [16] College servants by votes or orders, which went
into operation without the confirmation of the same by the Over-
seers. If the regulation of this matter has been changed by said
Appendix, then to this extent a diversity has been created between
the cases of appointments and salaries; — that is, in the case of the
election of instructors and officers, the Corporation are obliged to
send their votes to the Overseers for their confirmation or approval;
and in that of salaries, there is no such necessity imposed by said
Supplementary Act. The only course, therefore, for the Overseers
to pursue, if such votes or orders have not been laid before them,
and if they desire to take any action thereon, is to get possession of
them by a call on the Corporation therefor, and then to revise such
doings by approving or rejecting the same. -
The Committee think proper in this place to say, what may seem
to be a repetition, that the main, indeed almost the only object
of said Appendix, was to enable the Corporation to adopt votes or
orders, which would become valid without the confirmation thereof
by the Overseers. A question has been raised whether said legis-
lative act includes votes or orders relating to salaries. But it may
be regarded as a matter free from all doubt, that if no clause of said
Act applies to salaries, then all votes or orders on that subject re-
quire the confirmation of the Overseers, as it is provided in the
Charter; but if any provision of said Supplementary Act does em-
brace votes or orders respecting salaries, (which is understood to be
the opinion of some members of the legal profession,) then as to all
such votes [17] or orders the Overseers clearly have the right of
Tevision.
But it may be asked whether such right has not been lost by a
continued practice in the course of one or two centuries, during
which the Overseers may have abstained from all action in the
matter. To this question the Committee do not hesitate to give a
decided answer in the negative. Surely the omission of the Corpo-
ration, for ever so long a period, to communicate any order or vote
upon salaries to the Overseers, or of the latter Board to call on the
Corporation for the same, can never be considered as an abandon-
ment of their right of control or revision. The only legitimate pre-
sumption to be derived from such omission is, that the doings of the
Corporation in this respect, if known to the Overseers, were right,
or rather that the Overseers were satisfied therewith.
156 - . APPENDIX.
Notwithstanding the confidence of the Committee in the doctrine
above stated, yet as they are desirous of avoiding every possibility
of mistake in such a case, and as some persons may have doubts,
which it is desirable should be removed, the Committee have exam-
ined the records of the Overseers since the year 1707, at which
time separate and proper records began to be kept of the doings of
this Board. The Committee have no means of knowing what the
practice was from 1657, the time of the enactment of the Appendix,
to the year 1707; and nothing appears on the subject in the records
of the Overseers till about the year 1722. During this long period,
from 1657 to 1722, the number of instructors [18] or officers was
small. The salaries also were small, and the means of payment
precarious. Under these circumstances the probability would be
that the Corporation would hardly be able to commit any serious
mistakes as to salaries. The chief solicitude at that time related
to the procuring of means to pay the Small salaries granted, and the
Overseers would not be likely to trouble themselves much about the
votes of the Corporation as to the amounts. -
From the early part of the year 1722, to November 20, 1760,
the right of the Overseers to revise the votes of the Corporation, as
to salaries, was at divers times agitated; and in a few instances the
Corporation presented to the Overseers their votes, by which allow-
ances were made to instructors, for their approval, and at several
times a call was made on the Corporation by the Overseers to send
to the latter Board their votes in relation to salaries and other sub-
jects, which call was always promptly complied with on the part of
the Corporation, and their votes were duly presented. This impor-
tant point being fully settled, and the difficulty as to obtaining pos-
session of the votes of the Corporation being removed, the Overseers,
at their meeting on the 20th of November, 1760, took up the
subject of salaries in earnest, and adopted the following vote, viz.:
Voted, That there be a committee to consider whether it is in the
power of the Corporation to make allowance to those who are em-
ployed in the government or instruction of the College, without
the consent of the Overseers; and Secretary Oliver, [19] Mr.
Bowdoin, Brig. Gen. Brattle, Mr. Pemberton, and Mr. Eliot were
constituted the committee.
On the 11th of June, 1761, this committee made a report, which
was read, and the 9th of July then next was specially assigned for
REPORT TO THE overse ERs, 1856. 157
its consideration; and it was voted that the Corporation be served
with a copy thereof.
On the 26th of the same month of June, the Corporation met and
passed the following vote, viz.: Voted, That whatsoever salaries or
grants shall be hereafter made to any of those who are in the Gov-
ernment of the College, shall be laid before the Overseers for their
consent, and that this vote be presented to them for their appro-
bation. By this action of the Corporation, they clearly gave up the
great question in controversy, and in fact seem to have admitted it
to be essential to the validity of their votes or orders respecting
salaries and allowances, that the same should receive the consent of
the Overseers. On the 9th of the following July, the time assigned
for the consideration of said report, this vote of the Corporation
was laid before the Overseers, which was read and consented to,
“it appearing,” as the record states, “to this Board to be agreeable
to the College Charter.”
On the 7th of September, 1761, the Corporation passed the fol-
lowing votes, which were transmitted to the Overseers, and laid
before them at their meeting on the 6th of the succeeding October,
viz.: —
1st. That the salaries of the Professors, Tutors, and Hebrew
Instructors be as follows: —
[20] Salary of the Divinity Professor, . e - s * . -É 36 18 8
{{ “ Mathematical Professor, . - g * 7S 11 23
{{ “ First Tutor, . º e - tº * - 61 6 8
{ { “ Second do. . - * º - • * * 60 0 0
{{ ‘‘ Third do. . - º - e - - 59 6 3
( & “ Fourth do. . - º • e º & 58 13 4
{ % “ Treasurer, º º e & * º & 40 0 0
Vote 2d. That a grant of eight pounds be made to the Treasurer
this year, in addition to what is his stated salary.
Vote 3d. That one shilling and four-pence be allowed by each
student of the two lower classes to the Hebrew Instructor, to be
charged in their quarter bills.
Vote 4th. That the salary of the Clerk of the Overseers be six
pounds per annum.
From this time down to about the year 1811, that is, for a period
of half a century, all the numerous votes of the Corporation, estab-
lishing the salaries annually, or making any special grants to in-
structors or officers, were uniformly presented to the Overseers for
158 APPENDIX.
their approval, and, what deserves to be particularly mentioned,
were in every instance consented to and allowed by the latter
Board. Such, then, was the universal rule during a part of the
administration of President Holyoke, the whole of the time in
which Presidents Locke, Langdon, Willard, and Webber were in
office, and the first year of the Presidency of Dr. Kirkland.
On the 26th of November, 1810, the following votes were passed
by the Corporation, prescribing the salaries of all the instructors
and officers of the College, and making divers special grants, which
[21] votes were laid before the Overseers for their approval, De-
cember 6th, 1810, viz.: –
“Voted, That there be granted to the Rev. Dr. Lathrop, for his
services as Chairman of the Board, whilst the office of President
was vacant, the sum of fifty dollars.
“ Voted, That there be granted to Professor Ware, for his ser-
vices in assorting and filing the papers belonging to the College,
and which were in the custody of the late President at his decease,
the sum of twenty-five dollars.
“ Voted, That there be granted to Mr. Hedge sixty-five dollars
for his services in performing the chapel duties during the late
vacancy of the office of President.
“ Voted, That there be allowed to the administratrix of the
estate of the late President Webber the salary for the quarter in
which he died, deducting two hundred and seventy-six dollars,
being the expenses incurred by the Board during that quarter for
services appertaining to the office of President.
“Voted, That there be granted to Professor Ware, for his ser-
vices and expenses in discharging duties appertaining to the office
of President during the late vacancy of that office, three hundred
and fifty dollars, the fees he received for degrees being considered
a part of that sum.
“ Voted, That the salaries last granted to the present Officers of
the College, – that is to say:
[22] To the President, & e º g * * & e . $2,250
The Secretary of the Overseers, . g º * e e g 60
The Treasurer, . & e * e • • e e g g 720
Hollis Professor of Divinity, . g g & º * g s 1,500
Hollis Professor of Mathematics, &c. . * * & e * 1,500
IHancock Professor of Hebrew and other Oriental Languages, tº 1,500
Boylston Professor of Rhetoric and Oratory, g & º e . 1,500
REPORT TO THE OVERSEERs, 1856. 159
College Professor of Logic, Ethics, and Metaphysics, . e & $ 1,500
To the several Tutors within the walls, viz.: Messrs. Levi Frisbie,
Ashur Ware, and William Pitt Preble, each g * e & 660
The Librarian, e e & sº & e * © s * 550
The two Proctors, each º ſº & * º e * & & 150
be their annual salaries, to be paid to them quarter-yearly, until the
same shall be altered by this Board, with the approbation of the
Board of Overseers.”
This last vote was passed during the first year of the Presidency
of Dr. Kirkland; and it is apparent that the intention was thence-
forth not to prescribe annual salaries for the instructors and officers
at the commencement of each financial year, as the custom had
been, but to fix the same permanently, that is, by an order or vote,
with a provision that the same should not be altered except by the
concurrent action of both Boards. None of these salaries, so estab-
lished as aforesaid, appear to have been changed, by virtue of any
act of both Boards, in accordance with the terms of the above-
mentioned vote.
The Committee, in a cursory examination of the records from
the beginning of the year 1811 to the present time, have noticed
not more than three or four instances in which votes adopted by the
Corporation [23] respecting salaries have been presented by them
to the Overseers for their consideration and approval.
Thus, then, the right of confirmation or revision, on the part of
the Overseers respecting the votes and doings of the Corporation in
relation to salaries and allowances to instructors and officers, was
not only acknowledged in the year 1761 in a formal and solemn
manner by the President and Fellows, but has been fully confirmed
by the practice since that time.
The Committee requested the Treasurer to furnish to them a
list of the present instructors and officers of the College, with the
amount of the salary paid to each during the past year, appended to
his name. The Treasurer very promptly complied with this re-
quest. They have not, however, found it convenient to make such
particular inquiries respecting the several salaries specified in said
list, as to enable them to form a very satisfactory opinion concern-
ing the same ; but the impression derived from this cursory exam-
ination is, that these salaries, as to the amount in each case, are
suitable and proper in every instance but one, and that is the salary
paid to the Treasurer.
160 APPENDIX.
It is believed that the allowance to the Treasurer has always
been small. It appears by the vote heretofore cited, fixing the
amount for the year 1761, that the regular salary of the Treasurer
was forty pounds only, that is, about the sum of one hundred and
thirty-three dollars.
Judge Davis held this office from 1810 to 1827, a period of seven-
teen years, and he received during [24] the whole time seven hun-
dred and twenty dollars per annum, that being the salary fixed by
the vote passed as aforesaid the latter part of the year 1810. He
received nothing on account of the expense of clerk hire, rent of
office, &c., and one of the Committee happens to know that Judge
Davis employed a clerk, for whose services and other expenses he
actually paid the whole of said sum of seven hundred and twenty
dollars. He therefore, in fact, received nothing for his services as
Treasurer.
From the year 1827 to 1852, a period of twenty-five years, the
office of Treasurer was held three years by Ebenezer Francis, Esq.,
twelve years by Thomas W. Ward, Esq., and ten years by Samuel
A. Eliot, Esq.; and during the whole time about eight hundred dollars
were applied annually to the payment of the amount of clerk hire
and other necessary expenses in the office of the Treasurer, but no
compensation was paid, in fact or in form, to the Treasurer for his
own services, the same being rendered by him gratuitously. And
it appears (as the Committee understand) by various votes of
thanks and other resolutions, unanimously adopted by the Corpora-
tion, that in the opinion of the members of that Board the duties of
Treasurer were never more promptly, efficiently, and satisfactorily
performed, than they were during said period of twenty-five years.
The Committee, therefore, are surprised to learn that the Cor-
poration did, on or about a year prior to the resignation of Mr.
Eliot, viz. about November 27, 1852, pass a vote, directing a salary
of [25] fifteen hundred dollars to be paid to the Treasurer, which
was over and above the usual allowance to him of about eight hun-
dred dollars per annum, for expenses of clerk hire, rent of office,
&c. Under such circumstances, it is difficult to comprehend for
what reason said order or vote was adopted.
The Committee have no doubt that there are many highly re-
spectable gentlemen in this community, of perfect responsibility and
every way qualified for the situation, who would take this office,
REPORT TO THE overs EERs, 1856. 161
being one of high honor and dignity, and discharge its duties faith-
fully and satisfactorily without compensation. They therefore can-
not, without further information than they have been able to obtain,
perceive any good reason why the Government of the College may
not save this sum of fifteen hundred dollars every year.
The vote by which the Corporation undertook in 1852 to attach
a salary of fifteen hundred dollars to the office of Treasurer, has
never been presented to this Board; and the passing of the same
by the Corporation furnishes, in the opinion of the Committee, preg-
nant evidence of the propriety of its being insisted upon by the
Overseers, that they should have an opportunity to pass judgment
upon every vote of the other Board in relation to salaries and allow-
ances to officers and instructors.
As the above-mentioned vote, which was passed in 1810, fixing
the compensation of the Treasurer at seven hundred and twenty
dollars, without any allowance for clerk hire and other expenses,
has never been repealed or modified by both Boards, it is diffi-
cult to perceive why that sum should not be [26] regarded as the
amount of his legal salary. The Treasurer, however, has for the
last three years received about eight hundred dollars for clerk hire
and other expenses each year, and as compensation for his services,
the further sum of fifteen hundred dollars per annum. This Surely
is contrary to the aforesaid vote or order, adopted in 1810, which
by its express terms was not to be altered, except by a vote of the
Corporation, with the approbation of the Overseers.
The Overseers must always be anxious that the Corporation
should exercise all the powers conferred upon it by the Constitution
of the College, and that the efficiency of that Board should be pre-
served unimpaired, and all its rights and powers maintained in their
original integrity.
The Corporation is certainly a very important body, and has on
many trying and difficult occasions, during a period of two centu-
ries, been the bulwark of the College. A large number of able,
honorable, and patriotic men have held seats in that Board, and the
Presidential chair has been occupied by a long line of wise and
venerable men, and never by one of more practical wisdom and
more deserving the confidence of the friends of the College than the
present incumbent.
The Overseers surely can have no desire to assert any rights, or
21
162 APPENDIX.
claim any powers, which have not manifestly been conferred upon
them. The Corporation, being a small body, and for that reason
better qualified to manage all business affairs of the College, and to
discharge every function of an eacecutive character, it must be left to
them to perform substantially [27] all such duties as they have per-
formed heretofore. Nothing will tend more to the promotion of har-
mony between the two Boards, than a manifestation, at all times, of
readiness on the part of the Corporation to communicate to the
Overseers all such votes and information as they ought, or may
desire to have.
And while the Overseers should never manifest a disposition to
interfere improperly in any matter whatever, or to do anything
which will be likely to embarrass the Corporation, yet it is the duty
of this Board to exercise every power which clearly belongs to it
under the Constitution of the College.
The Committee will only add, that they have prepared a Resolve,
accompanying this Report, the object of which is that a few simple,
joint rules should be prepared by a Committee of the Corporation,
and a Committee of the Overseers, to be submitted to the two Boards
respectively, by which the several irregularities herein considered,
or referred to, may be corrected, and by which the respective pow-
ers, rights, and duties of the two Boards may at all times be recog-
nized and enforced. -
All which is respectfully submitted by
GEORGE MOREY,
SAMUEL HOAR,
G. W. BLAGDEN,
H. B. WHEELWRIGHT.
Boston, January 31, 1856.
[28] The foregoing Report, having been read and considered,
was accepted without a division.
Mr. MoREY, in behalf of the Committee, then presented the Re-
solve referred to in the concluding part of Said Report, which being
read, and the blank therein being, on motion of Hon. THOMAS RUS-
SELL, filled with the names of the members of the Committee who
made the Report, was adopted as follows : —
REPORT TO THE overs EERs, 1856. 163
In Board of Overseers of Harvard College, |
January 31st, A. D. 1856.
Resolved, That Hon. George Morey, Hon. Samuel Hoar, Rev.
George W. Blagden, and Henry B. Wheelwright, Esq., be a Com-
mittee to confer with a like Committee of the President and Fellows,
and agree upon such suitable Joint Rules as shall secure to the two
Boards, as far as it may be practicable, their respective rights; —
especially such Rules as shall regulate the intercourse between
them, and provide for the prompt transmission of all such Votes of
the Corporation to the Overseers as they may have a right to con-
firm or reject, revise or take action upon, or of which it may be fit
and proper they should have possession and official knowledge; and
said Committees shall report the result of their conferences and de-
liberations to their respective Boards.
*
g
º .*
* *
~~~~32.<---~
#
A
A.
REP o RT
O E THE
COMMITTEE OF THE OVERSEERs
H A R v A R D Col LEGE,
APPOINTED TO PROCURE A PERFECT COPY OF THE
COLLEGE CHARTER,
AND TO LAY THE SAME BEFORE THE BOARD, ETC.
WITH EXPLANATIONS AND REMARKS RESPECTING THE CONSTRUCTION
- OF THE THIRD CIAUSE OF SAID CHARTER.
^.
SUB MITTED FEBRUARY 20, 1862,
B O S T O N :
PR IN T E D BY GE O. C. R A N D & A V E R Y
; No. 3 C o R N H I L L.
1862. ---
3.


R. E. P. O. R. T
OF THE
COMMITTEE OF THE OVERSEERs
OF
H A R W A R D C 0 L L E GE,
APPOINTED TO PROCURE A PERFECT COPY OF THE
CoLLEGE CHARTER,
AND TO LAY THE SAME BEFORE THE BOARD, ETC.
WITH EXPLANATIONS AND REMARKS RESPECTING THE CONSTRUCTION
OF THE THIRD CLAUSE OF SAID CEIARTER.
S U B MITTED F E B R U ARY 20, 1862.
B O S T O N :
PRINTED BY GE O. C. RAND & AVERY,
No. 3 CO R N H I L L.

1862.
IN BOARD OF OVERSEERs OF HARVARD COLLEGE,
February 20, 1862.
Hon. GEORGE MoREY, in behalf of the Committee of the Overseers
appointed to procure a perfect copy of the College Charter, &c., &c.,
submitted the accompanying Report, which, at his request, was laid upon
the table and ordered to be printed.
Attest :
NATHANIEL B. SHURTLEFF,
SECRETARY.
R. E. P. O. R. T.
IN BOARD OF Overse ERS OF HARVARD COLLEGE,
February 20, 1862.
THE Committee of the Overseers, appointed at the
stated meeting of the Board, held at Cambridge on the
21st of June, 1860, to procure an accurate and perfect
copy of the Charter of Harvard College, and to lay the
same before this Board, and also to compare said copy
with what purports to be a copy of said charter, as set
forth in the first volume of the Records of the Over-
seers, and to ascertain what discrepancies and differ-
ences, if any, exist between them, and to make such
explanations and remarks as they should consider
pertinent, have attended to the duty assigned them,
and present the following Report: —
In the year 1855, a committee of the Overseers was
appointed to consider and report on the relative
powers, duties and responsibilities of the Corporation
and of the Overseers of Harvard College, which com-
mittee made a report on the 31st of January, 1856,
and the same was accepted by this Board.
In said report it was in substance held and main-
tained by the said committee, that, from the four pro-
visions of the third clause of the charter, the President
and Fellows of Harvard College derived their power
to make appointments, establish salaries, make removals
of college officers, and to make orders and by-laws, and
that the Overseers had the right of approval or disap-
proval of the orders or votes of the Corporation, by
4
which such appointments, allowances, removals, and
orders and by-laws were made, and that the Overseers
had this right by virtue of the proviso to said third
clause; said committee also maintained that the word
orders in said proviso had the same meaning as the
word votes.
A committee of conference was afterwards appointed
by the President and Fellows to confer with a like
committee of the Overseers, and to take into considera-
tion, and report to said Corporation, the nature and
extent of the rights and powers claimed by them, and
of the corresponding duties and obligations of said
Corporation. This committee of the President and
Fellows made a report on the 15th of November, 1856,
which was accepted by their Board. In said report to
the President and Fellows, the committee admitted, in
substance, that the powers of the Corporation, as to
making appointments, allowances, removals, and orders
and by-laws, were derived from the third clause of the
charter, but they denied the right, claimed by the Over-
seers, of approval or disapproval of the votes of the
Corporation in relation not only to salaries, but to ap-
pointments and removals, and insisted that such right
of the Overseers, conferred upon them by the proviso to
the third clause, was confined to the votes by which
the Corporation were authorized to pass orders and by-
laws by the fourth part or provision of said clause.
Said committee of the Corporation also maintained that
the word orders in said proviso did not signify votes, but
meant the same as the words orders and by-laws.
The aforesaid report to the Overseers on the 31st of
January, 1856, will hereinafter be referred to by your
committee as the report to the Overseers of January, 1856,
5
and the said report to the Corporation on the 15th of
November, 1856, will be hereinafter referred to as the
report to the Corporation of Wovember, 1856.
The word orders, unconnected with the word laws, or
the word by-laws, occurs in one instance only in the act
of the General Court, found in the records of the Gov-
ernor and Company of the Massachusetts Bay in New
England, by which act, adopted at the session which
commenced May 23, 1650, and commonly called the
Charter, Harvard College was made a corporation; and
a question has been raised, as aforesaid, respecting the
meaning and force of the word orders, so standing alone.
For the purpose of determining this question, your
Committee have examined with care the records of said
Governor and Company, and the records of the col-
ony of New Plymouth in New England. They have
also examined the records of corporations, established
prior to and since the Revolution of 1776, including
therein those of the Corporation of Harvard College,
and of towns, which are quasi corporations, in which
records are set forth the doings of said corporations and
towns, that occurred during our colonial and provincial
history, and since the adoption of the Constitution of
the Commonwealth of Massachusetts.
Like the African, East India, and other old English
companies, the Governor and Company of the Massa-
chusetts Bay in New England were incorporated for the
purpose of carrying on trade, as well as establishing a
plantation or colony, and in the outset held, like said
companies, their meetings in London.
The charter of the said Governor and Company, which
passed the seals March 4, 1628–9, in the fourth year of
the reign of King Charles the First, provided that the
6
freemen or members of the company should choose
from their own number a Governor, Deputy Governor,
and eighteen Assistants, who should hold monthly — or
oftener, if they saw fit — a meeting, called the Court
of Assistants, to take care for the best disposing and
ordering of the general affairs of the colony, and the
plantation thereof, and the government of the people
there, and for handling, ordering and despatching of all
such business and occurrents as should from time to
time happen, touching or concerning the said company
or plantation.
Four times a year a great and solemn assembly of
the Governor, Deputy Governor, and such assistants
and freemen as should choose to attend, was to be
holden, called the Great and General Court of the
Company (the Governor or Deputy Governor and
seven Assistants being necessary to form a quorum), at
which court they might choose other persons to be free
of said company, - constitute and appoint such officers as
they should see fit and requisite for the ordering, managing
and despatching of the affairs of said Governor and Company,
and their successors, and from time to time to make,
ordain and establish all manner of wholesome and rea-
sonable orders, ordinances, directions and instructions,
laws and statutes, not contrary to the laws of England,
for the welfare of the Company, and for the government
of the plantation and the people inhabiting it; and for
the imposition of lawful fines, mulcts, imprisonments,
and other lawful corrections, according to the course of
offer corporations in the realm of England.
The said Company, having, before the date of the
charter, purchased the territory over which it extends,
from the Plymouth Company in England, had already,
7
in 1628, sent out a number of settlers, who were planted
in Salem. The great object of the colonists was to
establish their own forms of church government and
discipline, in a place where they might live unmolested.
A number of substantial and respectable gentlemen
were willing to settle permanently in the new planta-
tion, provided the patent and government should be
legally transferred, and be established, to remain with
them and others inhabiting it.
The Company, on the motion of Matthew Cradock,
the first Governor in England, agreed that it should be
thus transferred ; and in consequence of this arrange-
ment, at a General Court, held at Mr. Goff's house, on
Tuesday, the 20th of October, 1629, John Winthrop
was chosen Governor for the ensuing year, to begin on
the day last aforesaid. At the said meeting, prior to
the said election, Governor Cradock caused to be read
an order, formerly presented, concerning the buying of
the ship Eagle, and desired to know the pleasure of the
Court, for confirmation thereof. Whereupon, some de-
bate being had, the order was approved of
The meetings of the Governor and Company were
held in England for a period of more than twelve
months after the date of the charter, — all which meet-
ings took place in London, except the last two, which
were Courts of Assistants, one of which was held at
Southampton, and the other, on the 23d of March,
1629–30, on board the Arbella, in Southampton
harbor.
The next meeting, being a Court of Assistants, was
held at Charlestown, August 23, 1630. Two other
Courts of Assistants were held at Charlestown; afterwards
the meetings were held in Boston, the first of which,
8
being that of a General Court, took place on the 19th
of October, 1630.
In the small beginnings of the colony all business,
excepting the election of officers and the admission of
freemen, appears to have been transacted indifferently
in the General Court or in the Court of Assistants. But
the people soon indicated that they were jealous of
their liberties, and at an early period, when the acts
and doings of these courts partook in any degree of the
nature of rules and regulations,— that is, of laws,
the people insisted that such acts and doings should
not take place in the Court of Assistants, but in the
General Court only. -
Prior to the time that the charter and government
were transferred and removed to New England, the
proceedings at the meetings of the Governor and Com-
pany related to the purchase or hiring of vessels, the
fitting of the same for sea, the procuring of crews, pro-
visions, clothing, arms, horses, cattle, fowls, books, seeds,
and all such things as might be wanted by the passen-
gers on the voyage, or after their arrival. So at the
meetings in Charlestown, and at the early meetings in
Boston, after Governor Winthrop and his company
landed on these shores, the acts and doings of the courts
related to all those small and necessary things which
pertained to the first settlement in a wilderness.
When these courts were held in England, and for a
considerable period afterwards, the proceedings were
conducted with much simplicity. At the time John
Winthrop was elected Governor in England, as above
stated, he was chosen “by a general vote and full con-
sent, by the erection of hands.”
The acts and doings of these courts were, for several
years, in many respects similar to those of common cor-
porations, and during the whole colonial period, propo-
sitions and motions were not unfrequently made in the
General Court, and phraseology was used, similar to
what might oceur in the transactions of an ordinary
association, or mere business company. .
The word orders was used to describe or denote the
action of the General Court as well as that of the Court
of Assistants, and their acts and doings were denomi-
nated orders. The word order signified the action of
either of these bodies, by which they expressed their
judgment, opinion, or will, or made their decision,
whether the matter acted on was great or small, impor-
tant or unimportant, of a general character, or related
to some particular or individual case.
On almost all occasions the acts and doings of the
General Court were introduced by the phrase, “It is
ordered.” Thus we find in these records provisions of
this sort, viz.: It is ordered, That a certain person be
appointed captain, or agent, &c.; ordered, that his salary,
or pay, be so many pounds; ordered, that a certain officer
be removed. We find orders to pay Mr. Dunster, Presi-
dent of Harvard College, several sums of money, on
account of his salary.
Whenever the action of the General Court is intro-
duced by the words, “It is ordered,” and a reference is
afterwards made to such action in some subsequent
proceedings of the General Court, such action is de-
nominated an order. There is in the records of the
General Court a considerable number of cases where
the action of the court is introduced by the phrase “It
is voted.” In a small number of instances the phrase
is, “It is resolved.”
9)
10
On examining the records of the General Court of
the colony, as contained in five quarto volumes, pub-
lished by virtue of two resolves of the Legislature of
Massachusetts in the years 1853 and 1854, your Com-
mittee found the whole number of pages to be 2549.
They then noted the instances wherein the action of
the General Court is introduced by the phrase, or
words, “It is ordered,” on a certain large number of
these pages. They next looked over, though less par-
ticularly, the residue of the 2549 pages aforesaid, and
assuming that this phrase occurred in said residue as
often, on an average, as in those pages in which the
instances were carefully counted as aforesaid, your
Committee came to the conclusion that the number of
times in which the action of the court was introduced
by the words “It is ordered,” was 4253. Therefore
there are in these volumes about 4253 orders.
In a large number of cases the action of the court
relates to a class of matters of the same kind, and in
these instances the action of the General Court is ac-
complished generally by an order, and sometimes by a
vote. There are found in these records the phrases,
“It is ordered and voted,” and “It is voted and or-
dered; ” “It is ordered and resolved; ” “It is resolved
and ordered ; ” “It is ordered and declared ; ” and
orders are called votes, and votes are called orders. The
General Court is sometimes adjourned by a vote, and
sometimes it is adjourned by an order, showing conclu-
sively that the word order has the same meaning and
force as vote, and is used to accomplish precisely the
same purpose.
Your Committee believe they have now demonstrat-
ed that the meaning of the word orders, when used in
11
the proceedings of the colonial legislature, is substan-
tially the same as that of votes or resolutions ; such, cer-
tainly, was its original meaning. But after a time it
acquired a secondary meaning. Although it retained
its original sense in its full force, it acquired by degrees
a secondary signification in this way: In the day of
small things of the corporate body denominated the
Governor and Company of the Massachusetts Bay in
New England, the action of the Assistants, and also of
the General Court, related to individual or separate
matters. There was no generalization. Few, if any,
rules had been adopted in conformity with which divers
matters or classes of matters were to be regulated,
settled or transacted. The consequence was, that
special action was had in every case, and everything
was disposed of without the aid of, or reference to, any
general rule or regulation.
But about the time it was decided to remove the
charter and government to New England, it became
necessary to adopt certain general orders, which partook
in some degree of the nature of rules and regulations,
and afterwards, in the course of a few years, there were
adopted by the General Court, at their sessions in Bos-
ton, divers further general orders of a more important
character, which might well be denominated LAws.
Throughout the colonial history, commencing about
the third or fourth year after the arrival of Gov. Win-
throp, the General Court appointed divers committees
to peruse and examine all the acts and doings of the
court of every kind or nature, general and special,
passed from the beginning, or at a particular session
(which acts and doings were almost universally accom-
plished by orders), and to select out from all the said
12
acts and doings those orders which partook of the char-
acter of rules and regulations, or laws, and “to collect,
collate, abbreviate, or enlarge, revise, digest, compile
and prepare the same for publication.”
Thus the particular orders by which rules, regula-
tions and laws were adopted, began to be identified with
the same, and so the word orders was at the first occa-
sionally used to denote rules, regulations and laws. In
this way it acquired a new or secondary signification.
There was no subject about which so much interest
was manifested by the members of the General Court,
and amongst the magistrates and people, as that which
related to the laws. During a period of about half a
century, the General Court in about a hundred instances
appointed committees or took other action touching
this matter; and the language used in their acts and
doings on these occasions was laws, sometimes liberties,
or liberties and laws, sometimes body of liberties, –
then orders and statutes, then general orders, and laws
and orders.
There evidently was a diversity of opinion as to the
word or words which should be used to designate the
laws, or any code or digest thereof. Zealous friends of
liberty preferred one designation, and stern lawyers
another.
It very soon was perceived that as the word orders
could not, strictly speaking, be considered as an act of
the court, but the means by which an act was adopted;
and as the word had an original and well-established
meaning, which was the same as that of votes, it was
found convenient and necessary to connect this word,
when used to indicate a rule or regulation, with laws or
some kindred word. The phrase general orders was
13
sometimes used at the first. But laws and orders were
regarded as the most appropriate combination. In the
remarks of the Hon. Francis C. Gray, on the early laws
of Massachusetts, from which your Committee have
made several extracts, is to be found the following
passage: “The fact, that almost all the articles in the
Body of Liberties are in substance contained in every
subsequent Digest of the colony laws, shows that the
people were not dissatisfied with its provisions. But
they still desired a more minute and complete code, to
include all the LAWS AND ORDERS of general observation.”
When the word orders bears the same signification
as that of laws, or a signification analogous thereto, it
always, or certainly almost always, is used in connection
with laws, under the phrase laws and orders, or some
equivalent expression. If the question be asked why
these words are both used, it may be answered that,
when some legislator or lawyer was appointed to peruse
and examine all the acts and doings of the General
Court, from the beginning, or for any particular period
or session, and to select out all such as were laws or
statutes, or in any way partook of the nature of rules
and regulations, such person, in proceeding to make
such selection and revision, would of course find certain
acts or doings about which he might have some doubts.
He might hesitate to raise them to so much importance
as would be indicated by the designation of them as
laws, and yet he might perceive they had the semblance
of rules and regulations or of laws. Therefore he
might well conclude to call them laws and orders, which
phrase-would be sure to be applicable to whatever was
contained in the selection made by him. This course
is often taken in other similar cases. Orders and by-laws
14
are used by corporations and towns, and these combina-
tions become familiar phrases, and a person at all ac-
customed to them would be sure to repeat both words.
He would not use one and omit the other, unless some
good reason should exist for his doing so, such as that
the single word used had a very different meaning, when
standing alone, from what it had in connection with the
other, and that the word, with such different meaning,
was the appropriate one for that particular place.
In the records of some corporations in Massachusetts,
their acts and doings are introduced by the phrase, “It
is ordered,” and in others by the phrase, “It is voted.”
Sometimes, in the same corporation or body, the phrase
used is, “It is voted; ” sometimes the phrase used is,
“It is ordered.” In the same way, it appears, by the
records of some towns, which are quasi corporations,
that their acts and doings are introduced by the phrase,
“It is ordered,” while in other towns the introductory
phrase is, “It is voted;” and in the acts and doings of
the same town the words “It is ordered” are some-
times used, and in others the phrase is “It is voted.”
But whatever may be the introductory phrase, the
action of the town from time to time is generally des-
ignated by the word orders, while in some instances it
is designated by the word votes. This was the course
of things before the Revolution, and has been since.
Whenever the acts and doings of towns are rules and
regulations, or partake of the nature thereof, they are
called orders and by-laws. In the city of Boston, it
appears by the records, that the acts and doings of the
Mayor and Aldermen, and also of the Common Coun-
cil, are introduced by the phrase, “It is ordered.” All
acts and doings are denominated orders, whether they
15
relate to appointments, salaries, removals, or any mat-
ters other than rules and regulations, which are called
ordinances, it having been especially provided by an
express order of the City Council, that all acts in the
nature of orders and by-laws should be styled ordinances.
Under the colonial government, whenever a corpo-
ration was established, such corporation was authorized
to make “orders and by-laws,” and similar authority
was possessed by the towns; and since the Revolution
all towns have been, and now are, by the laws of the
Commonwealth, expressly empowered to adopt “orders
and by-laws.” -
It appears by the records of the Plymouth Colony,
that the acts and doings of the Court of Assistants, and
of the General Court, were generally introduced by the
phrase, “It is ordered,” and the results of the action of
the Court were denominated orders, or rather court
orders. They were called court orders, because they
were adopted by a body called a court.
From the foregoing history, it appears that whenever
the word orders, standing alone, was used in any statute
or act of incorporation of the General Court, or in any
act of a corporation or town, the meaning was the same
as votes or resolutions. Such was its primary and origi-
nal meaning; and when it was used in its secondary
signification, denoting rules and regulations, this was
indicated by its connection with the word laws, consti-
tuting the phrase “laws and orders,” or orders and by-
laws.
Although, as it has been stated, the judgment, opin-
ion, will or decision of the General Court of the colony
were sometimes expressed by votes or resolutions ; yet, as
these words were comparatively quite rarely used, and
16
when used, they had the same signification as the word
orders, and as the word orders, in a very great majority
of cases, expressed and described the action of the
court, it became the prevailing word to denote such
action whenever the proceedings of the court during a
particular session, or the whole period after the arrival
of Gov. Winthrop, were spoken of, or mentioned.
Your Committee will here introduce an incident that
occurred during the administration of Gov. Shute,
which goes to demonstrate that during our colonial
history the words orders, votes or resolutions, though
one of them might occasionally be used as in some
slight degree more applicable, according to the nature
of the subject, to this or that case, than either of the
other words, were all three generally used to express
the same meaning. -
In the year 1722, the House of Representatives, upon
the memorial of the Overseers of Harvard College,
adopted certain “resolutions,” which were concurred in
by the Council, and presented to Gov. Shute for his
assent. These “resolutions” the Governor returned,
with a conditional approval only, as follows, viz.: “I
consent to these votes, provided the Rev. Mr. Benjamin
Wadsworth, and the Rev. Mr. Benjamin Colman, and the
Rev. Mr. Appleton, are not removed by said orders, but
still remain Fellows of the Corporation.” Here the
words “resolutions,” “votes,” and “orders,” were used
to denote the same thing. -
It is stated by the Hon. Josiah Quincy, in his able
and elaborate History of Harvard University, “that the
Proceedings of the President and Fellows of the college
are recorded as being done at a meeting of the Corpo-
ration, or introduced by the formula, ‘It is oRDERED by
17
the Corporation; ” and by the early records of the
college prior to the date of the charter, at meetings of
what were denominated “the governors of the college.”
it appears that when elections of officers and servants
took place, and allowances or compensation were made
to them, or any similar matter was transacted, the acts
and doings were introduced by the phrase, “It is
ORDERED.”
Your Committee have examined also the records of
the Corporation, containing their acts and doings for the
period of half a century immediately succeeding the
date of the charter, and they find the proceedings of
that body, during these fifty years, were in most cases
introduced by the formula, “It is ordered,” and occa-
sionally by the phrase, “It is voted; ” and when the
action of the Corporation, introduced by the phrase or
formula, “It is ordered,” is subsequently described or
referred to, it is sometimes denominated an ORDER, and
sometimes a VOTE, showing conclusively that the word
ORDER was considered as having the same meaning as
that of VOTE.
The action of the Corporation was therefore accom-
plished by orders, signifying the same as votes, in perfect
accordance with what the framer of the third clause of
the charter intended and contemplated by the language
used by him, when he drew the same and composed the
proviso to that clause.
Your Committee have caused to be inserted in an
Appendix several extracts from the early records of the
college, showing in what form and by what means the
action of the “Governors of Harvard College,” prior to
the 31st of May, 1650, and of the “Corporation " after-
wards, was effected, and they ask the particular atten-
3
18
tion of the friends of the college to the record of these
proceedings.
If the language of our statesmen, legislators and
scholars, – especially of those most familiar with the
legislation of the colonial and provincial periods, – is
particularly noticed and scanned, it will be found, when-
ever an occasion arises for the use of the words orders,
votes and resolutions, that these words, especially orders
and votes, are used, or referred to, as equivalent or very
similar expressions. Your Committee will not enlarge
their report by referring to the writings of more than
one of these statesmen, legislators and scholars, and
they will cite from the writings of that one, whose
thorough and accurate knowledge of the meaning and
force of words is recognized everywhere.
The distinguished gentleman alluded to was educated
at Harvard College, and has been a Tutor, Professor and
President of the same. He has had experience as a
legislator in the Senate and House of Representatives
of the United States, and in the Cabinet at Washing-
ton as Secretary of State. He also has been Governor
of Massachusetts, and of course presided at the Council
Board, whose acts and doings are introduced by the
phrase “It is ordered,” and are denominated orders.
Your Committee presume it is already understood to
whom reference is made, and they will now proceed to
cite two or three instances, out of many which may be
found, to prove that the Hon. Edward Everett uses the
words orders and votes as equivalent expressions.
In the preface to a new edition of the laws concern-
ing Harvard University, written by Mr. Everett, when
President of the college, and bearing date Nov. 16,
1848, he uses the following language, viz.: “At length,
19
on the 12th of Sept., 1846, the President was requested,
by a vote of the Corporation, “to consider and ascertain
the present state of the college laws, and to make report.’
This vote of the Corporation was understood to contem-
plate a complete revision of the statutes and laws of
the University.
“In pursuance of this order, on the 27th of Novem-
ber of the last year, a revised code of laws was reported
by the President to the Corporation, and by them
ordered to be privately printed, with a view to its con-
sideration by the two Boards. At the following meet-
ing, on the 27th of December, it was laid before the
Corporation in a printed form. It was ordered by the Cor-
poration at the same time, that a printed copy should
be furnished to each member of the college Faculty,
and to the Faculty of each professional school, with the
request that they should submit to the Corporation in
writing such remarks as they might think proper to
make on any part of the proposed code.
“On the 15th of January of the present year the
revised code, as reported by the President, was, in con-
nection with the remarks of the members of the
Faculties, taken up for consideration by the Corpora-
tion, at a special meeting called for this purpose, and it
was further considered at several adjourned meetings in
the course of the winter and spring of 1848. Sundry
amendments were adopted by the Corporation; and on
the 23d of May, 1848, the revised code was ordered to
be printed, as amended at that and the preceding meet-
ings of the Board. Farther amendments were adopted
at the meeting of the Corporation on the 27th of May,
and on the 10th of June last the following or DERs were
passed : —
20
“ Voted, That the Revised Laws of the college, as
submitted at the last meeting, be adopted by the Board,
and it was ordered that the same be signed and certified
by the Secretary.
“ Voted, That the President be requested to lay the
laws, as adopted, before the Board of Overseers, that
they may concur in the same, if they see fit.”
Your Committee come now to the consideration of
that part, before referred to herein, of the charter of
Harvard College, granted by the General Court, and
bearing date May 31st, 1650. This part of the charter
is commonly denominated the third clause thereof, and
is as follows, viz.: “And the President and Fellows, or
the major part of them, from time to time, may meet
and choose such officers and servants for the college,
and make such allowance to them, and them also to
remove, and, after death or removal, to choose such
others, and to make from time to time such orders and
by-laws, for the better ordering and carrying on the
work of the college, as they shall think fit; provided the
said of DERs be allowed by the Overseers.”
This clause is a very important part of the charter,
and confers several large powers. The clause may be
divided into four parts, or provisions;– the first giving
the power to the President and Fellows to choose officers
and servants; the second, to make allowance to them—
that is, to prescribe their salaries; the third, to remove
them ; and the fourth, to make orders and by-laws.
The President and Fellows, by accepting the report
aforesaid of their committee of November, 1856, have
substantially declared that their power to elect and
appoint instructors, officers and servants of the college,
is derived from, and rests upon, this third clause, and
21
that they possess, by virtue of said clause, the power to
make allowances to such instructors and officers, and to
make removals and orders and by-laws. There is not,
therefore, any difference of opinion on this subject be-
tween the two Boards; certainly none so far as the
appointments, the salaries and removals of officers of
ânstruction and government are concerned.
The question then arises whether the Overseers have,
by virtue of the proviso to said third clause, the right
of concurrence or non-concurrence in relation to the
exercise of the powers in the third clause of the charter,
conferred upon the President and Fellows.
For the first time in the history of the college, it was
distinctly asserted on behalf of the Corporation, in the
report of Nov., 1856, to that Board, that the said pro-
viso, in the following words, “Provided the said orders
be allowed by the Overseers,” applied to the fourth pro-
vision only of said third clause, by which provision the
President and Fellows are authorized “from time to
time to make orders and by-laws for the better ordering
and carrying on the work of the college; ” and it is in
fact insisted in said report that the Overseers have no
right of approval or disapproval of the votes of the
Corporation by which they elect officers of instruction
and government.
As to this doctrine set up on the part of the Corpora-
tion, your Committee make answer: In the first place,
the words, “as they shall think fit,” at the conclusion
of all the substantive enactments in said third clause,
apply to each of said four provisions. Of this there
can be no possible question, and the presumption there-
fore is, that the proviso immediately following the said
words, “as they shall think fit,” has as extensive an ap-
22
plication as said concluding words of all said substan-
tive enactments.
In the Second place, your Committee insist with the
utmost confidence that if the said proviso had been in-
tended to apply to the said part or provision only, which
relates to the making of orders and by-laws, it would
have read as follows: provided the said orders and by-
laws be allowed by the Overseers.
It is believed that not an instance can be found in the
whole history of legislation in Massachusetts since Gov-
ernor Winthrop came over with the colonial charter,
down to the present time, where two important words,
such as rules and regulations, or orders and laws, or
orders and by-laws, have ever been used in a substan-
tive enactment, which is followed by a proviso for the
special purpose of qualifying said two words, and then
in such proviso one of such words only is used, and the
other is omitted. It is believed that no such thing ever
occurred in the Legislature, or in the doings of any
town, municipal or other corporation. It is a mistake
not likely to occur. Indeed, it may be pronounced the
most unlikely thing that could happen. Members of
the General Court, selectmen of towns, or directors of
an ordinary corporation, may spell incorrectly, or com-
mit many mistakes or blunders, but when, in drafting
an act or vote, they use two important words, especially
such as constitute a common and familiar phrase, which
ought by all means to be repeated in a proviso, if a
proviso is to be introduced for the purpose of so quali-
fying them, then such members, selectmen, or directors
can hardly fail to repeat both words in such proviso.
If the chairman of a committee, or other person, had
undertaken so important a work as to draft a college
23
charter, and he had inserted the words orders and by-
laws in a substantive enactment, as in this case, and
then the next instant he had proceeded to compose a
very short proviso, containing a single line, for the pur-
pose of qualifying said substantive enactment, — that is,
the most prominent part thereof—is it possible that he
would omit half of a familiar phrase, and leave out one
of two words of special importance 2 Besides, had the
bill been so drawn, with the word by-laws omitted in the
proviso, and the obvious design and intention of the
bill had been that it should be inserted, would not the
committee on bills in the third reading, or the com-
mittee on engrossed bills, have detected the omission,
and seized the opportunity to magnify their official
consequence by correcting the error?
These circumstances go to prove conclusively that
the word orders alone was manifestly the correct ex-
pression, and was used in the proviso by the person who
drafted the charter, with special intenſion, so that a word,
signifying the same as votes, should constitute the sub-
stantial part of the proviso, and make it applicable to
not only the orders or votes by which orders and by-
laws should be adopted, but to the orders or votes by
which elections, allowances and removals should be
made by virtue of the three first parts or provisions of
the third clause.
In the third place, it should be borne in mind that the
charter of Harvard College created the first corpora-
tion which was established by the colonial legislature,
and no other corporation existed in the colony for some
time afterwards. This charter deprived the General
Court of divers powers they had previously possessed
and exercised. It is somewhat remarkable that the
24
friends of the college were able to obtain a charter, con-
ferring such important powers as this did, subject even
to the sanction or revision of the Overseers. Would it
then have been possible to repress the jealousy which
would have arisen against granting to a body, consist-
ing of seven persons only, such important powers as
are given to the Corporation by the third clause of the
charter, without conferring on the Overseers the right of
approval or disapproval 2
It would have been very strange if the General Court
had given to the Corporation full and uncontrolled
authority to appoint all officers of instruction and gov-
ernment, to establish their salaries, and, above all, to
make removals of any such officers, without the sanc-
tion of the Overseers, while the said court would not
allow the same body, without the consent of the Over-
seers, to make any orders and by-laws, even such as
related to the dress of the students at commencement,
or on any other occasion, — or such as prohibited any
student from ordering sizings at commons beyond the
amount of forty shillings during one college term, or
from being present at a class meeting without special
license, – or from going to any tavern in Cambridge
for the purpose of eating or drinking, — or keeping,
without leave, any gun or pistol, horse, dog, or other
animal (including, of course, a cat or a canary bird), in
Cambridge. It certainly would have been quite extraor-
dinary if the General Court of the colony had given to
the Corporation full power to appoint a PROFESSOR OF
DIVINITY, or of MATHEMATICs, and to establish their salaries,
and to REMOVE them from office, without being obliged
to consult the Overseers, or ask their approval; and
yet that the court should have made it necessary to call
25
together the Overseers, consisting of the Governor,
Deputy Governor, and all the magistrates of the juris-
diction, with the teaching elders of the six adjoining
towns, and require them to assemble for the purpose of
giving validity to one or more petty orders and by-laws,
adopted by the Corporation.
Fourthly. The President and Fellows have, in a formal
manner, by accepting said report to them of Nov., 1856,
admitted and declared, that “appointments, made by
the Corporation, of officers of instruction and govern-
ment, have from the earliest times, and, as is believed,
with entire uniformity, been sent up to the Overseers
for concurrence or rejection ; and that the submission
to the Overseers of all appointments to offices of in-
struction and government has not only the sanction of
antiquity coeval with the chartered existence of the
college, but is of great moment as a safeguard against
appointments from interested and private motives; and
invests the officers thus confirmed with a sense of public
responsibility, and with dignity and authority of great
value in establishing effective influence over the scholars,
and in elevating the character of the institution.”
Can it be imagined that the General Court, in 1650,
would have granted a charter with a defect so palpable
as would have existed if the right of approval or dis-
approval of such appointments had not been conferred
on the Overseers ?
In the year 1851 the President and Fellows presented
a memorial to the House of Representatives, which was
signed by the members of the Board. In this memorial
they found it necessary to allude to the powers of the
Corporation. They stated that “in Williams College,
and in nearly all the colleges of the country, there is
4
26
but one Board, consisting of members who hold perpet-
ual succession, fill up their own vacancies, make all appoint-
ments, and transact the important business, without the
control or advice of any other authority, and that in
the exercise of power the Corporation is under much
heavier restraints than is customary in other similar
institutions.” Again, in page 47 of said memorial, the
Corporation say: “It’’ (the charter) “gave to them "
(the Corporation) “the sole power of appointing all
officers and servants of the college, and vested in them the
exclusive right of enacting rules and laws for its govern-
ment, and administering them, subject only to the approval
or disapproval of such appointments, rules and laws, by the
Overseers.” -
Thus the Corporation in said memorial most distinctly
and fully admit that the Overseers have the right of
approval or disapproval of all votes by which the Cor-
poration make orders and by-laws. Of course they refer
to the proviso at the end of the third clause of the
charter, by which the Overseers have, by universal ad-
mission, this right of approval or disapproval as to
orders and by-laws; and the Corporation say in the
very same connection, that the Overseers have this right
as to appointments, and therefore they must have it by
virtue of said proviso.
Again, it is expressly admitted and declared in the
said report to the Corporation of Nov., 1856, that if
said proviso applies to appointments it applies to Salaries;
consequently the Corporation by their memorial to the
Legislature in 1851, and by the report of Nov., 1856,
accepted by them, may well be considered as having de-
clared that the Overseers have the right of approval or
27
disapproval of the votes of the Corporation by which
appointments are made and salaries are established.
Fifthly. Your Committee now come to the applica-
tion of the evidence in relation to the meaning of the
word orders, standing alone, which they have pre-
sented in the former part of their report, having de-
rived the same from the records of the General Court
of the colony and other bodies, and from the records
of the Corporation of Harvard College; and they make
the point that the word orders, so used in the proviso at
the close of the third clause of the college charter, un-
connected with the word by-laws, or other word or
words of similar signification, must mean votes or reso-
lutions; that is, the votes by which the President and
Fellows make elections of “officers and servants of the
college,” also allowances and removals, and pass orders
and by-laws, in conformity with the authority given to
them in the four parts or provisions of said third clause.
There is no evidence or glimmering of evidence in
said third clause, or in any other part of the charter, or
in the appendix, tending to show that the word orders,
standing alone in said proviso, signifies rules and regu-
lations, or orders and by-laws, but the reasons before
stated, and every circumstance connected with said
clause, and other parts of the charter, or with the
appendix, go to prove that the single word orders in
this place must mean votes.
The phrase orders and by-laws occurs twice in the
charter and three times in the appendix, whereas the
word orders, standing alone, is found once only, and
that is in the charter. In the first clause of the appen-
dix there is a provision touching orders and by-laws,
and that phrase is used in the substantive enactment,
28
and then comes a proviso qualifying said principal or
substantive enactment, and the same phrase, that is,
both said words, orders and by-laws, is repeated. This
may well be regarded as a very significant circumstance.
By considering the word orders in the proviso to the
third clause of the charter as meaning votes, which is
the universal signification thereof, when standing alone,
or certainly almost the universal signification, every-
thing is made plain, and every difficulty is removed.
The whole of the third clause, and every part of it,
thus becomes sensible, consistent, intelligible, reason-
able, and free from all ambiguity and absurdity.
Your Committee will now set forth this third clause,
with a substitution of the word votes for orders, and
thus enable every one to perceive how simple and plain
the whole clause appears, as follows, viz.: —
“And the President and Fellows, or the major part of
them, from time to time, may meet and choose such
officers and servants for the college, and make such
allowance to them, and them also to remove, and, after
death or removal, to choose such others, and to make
from time to time such orders and by-laws, for the
better ordering and carrying on the work of the
college, as they shall think fit; provided the said votes be
allowed by the Overseers.”
Suppose the last provision in the third clause, by
which authority is given to the Corporation to make
orders and by-laws, had been wholly omitted, or had
been inserted in some other part of the charter, entirely
separate and distinct from the third clause, then the
third clause would have read as follows, viz.: “And the
President and Fellows, or the major part of them, from
time to time, may meet and choose such officers and
29
servants for the college, and make such allowance to
them, and them also to remove, and, after death or
removal, to choose such others, as they shall think fit;
provided the said orders be allowed by the Overseers.”
Would not such a clause have been perfectly plain
and intelligible 7 and would there in such case have
been any doubt whatever of the meaning of said pro-
viso Surely, the mere addition or insertion of the
fourth part or provision as to the making of orders and
by-laws, as it now stands in the third clause in the char-
ter, cannot change the meaning of the other three parts
or provisions, or the force and effect of the proviso, or
affect its relation to said three first parts or provisions
of the third clause.
It is quite certain that the person who drafted the
charter, must, when he drew the third clause, constantly
have had in his mind the fact that the Corporation
would appoint officers and servants of the college, and
remove them, make allowances to them, and pass orders
and by-laws, in accordance with the practice in the
General Court in similar cases. Therefore he, without
doubt, regarded the four provisions of said clause as
having the same meaning and effect as they would have
had if the Corporation had been expressly authorized,
by orders or votes, to make such appointments, allow-
ances, removals, and orders and by-laws. Consequently,
when he composed the proviso to said clause, he had
special reference to said orders or votes, which he consid-
ered just as certainly implied and embraced in said pro-
visions of said clause, as if the word orders or votes had
been actually inserted therein. The words, “the said
orders,” therefore, in said proviso, so far from being of
“doubtful interpretation,” are the most apt and appro-
30
priate that could have been used “to convey a clear
and certain allusion’ to the making of appointments,
allowances and removals, as well as to the passing of
orders and by-laws.
The framer of said third clause well understood what
was intended by said four parts or provisions thereof,
and what would be the action of the Corporation by
virtue of said provisions, and by what means their
action would be accomplished. When, therefore, he
proceeded to draw the proviso, which was to qualify
such action, or the means by which it would be effected,
he selected such fitting expression as should describe
such action or means, and consequently used the phrase,
“the said orders.”
Although the language of the substantive enact-
ments in said third clause is elliptical, and the means
by which appointments, allowances, &c., are to be
made by the Corporation are not expressly set forth,
yet they are so plainly indicated that the same cannot
be misunderstood, and the framer of said clause in com-
posing a proviso, or subsequent condition thereto, did
not hesitate, well understanding what the intention of
said enactments was, to adopt a direct and specific term
to describe such intention, and to express the means by
which the Corporation was authorized to make appoint-
ments, allowances, removals, and orders and by-laws,
and which were to be qualified by said proviso.
Of the committee of the Overseers, whose report, as
hereinbefore stated, was made to that Board in Janu-
ary, 1856, the late Hon. Samuel Hoar was a member.
Mr. Hoar was a warm friend of the Several members of
the Corporation, and entertained great respect for them.
He at all times took a deep interest in the affairs, suc-
31
cess and prosperity of the college, and was one of its
most devoted and sincere friends. He had carefully
studied the charter and the laws supplementary thereto.
He was an able lawyer, and was particularly familiar
with the statutes of the Commonwealth, and had care-
fully studied the legislation that arose during the
colonial and provincial periods. He was in large and
full practice at the bar for a period approaching half a
century. He was a member of our State Senate and
of our House of Representatives, and was a represen-
tative in the Congress of the United States. He was
often present at ecclesiastical councils—sometimes as
a delegate, and at other times as legal adviser and
counsel. He had extensive knowledge of the affairs
and doings of towns and corporations in Massachusetts,
and was familiar with the language and phraseology
used in their transactions and records.
At the first meeting of said committee of the Over-
seers, one of the members called the attention of Mr.
Hoar to the second clause of the appendix to the col-
lege charter, and suggested that by the provisions of
that clause the Overseers might be considered as pos-
sessing the right of revision as to all the acts and doings
of the Corporation, without any exception. This sug-
gestion did not meet with favor from Mr. Hoar, and he
remarked that he was wholly opposed to the opening
of an additional source of discussion, or to the raising
of any question, predicated on this middle clause of the
appendix, which might embarrass the Corporation, or
lead to the setting up of a new construction adverse to
the rights of that body. He said the Corporation had
for more than two centuries been the bulwark of the
college, and that he should be sorry to have a founda-
32
tion laid for an attempt to impair or affect in any way
the powers conferred upon them by the charter. He
then observed that the committee had better confine
their attention to the third clause of the charter, which
gave to the Overseers all the control over the acts of the
Corporation which they could desire. This clause, he
said, expressly conferred divers important powers on
the President and Fellows of the college, and by it
they were authorized to make appointments, allowances,
and removals, and to adopt orders and by-laws, the
exercise of all which powers were made subject to the
approval or disapproval of the Overseers, by the pro-
viso at the end of said clause. He further remarked
that his attention had been called to this part of the
charter many years ago, and that the opinion he then
formed and still entertained was, that the word orders
in said proviso had the same meaning as that of votes,
being the votes by which the Corporation should make
appointments, &c.
The committee adopted the advice of Mr. Hoar, and
concluded to regard the provisions of the third clause
as containing the authority of the Corporation to make
appointments, allowances, removals and orders and by-
laws, and to consider the said proviso as giving to the
Overseers the right of approval or disapproval of the
orders or votes of the Corporation, by which they
should make all such appointments, &c.
As the said committee of the Overseers could not find
that there ever had been any discussion between the
two Boards in relation to the special meaning and force
of the word orders in said proviso, a suggestion was
made that the committee should not go into an expo-
sition of the position taken by them, and of the grounds
of their opinion on this particular point, trusting that
the Corporation would concur in the position so taken ;
but if the Corporation should dissent from the conclu-
sions of said committee of the Overseers, and should
express their views on the subject, then some future
committee of the Overseers might make a full expla-
nation and exposition as to the meaning of the word
orders in said proviso; and the committee of this Board
made their report in January, 1856, in accordance with
said suggestion.
Your Committee will now ask the attention of the
Overseers to the course of measures and doings of
these Boards since the date of the charter, having a
tendency to throw light upon the construction of that
instrument, especially of the first part or provision of
the third clause of the charter.
The Corporation has from the beginning employed,
either directly or through the agency of others, suitable
persons to render inferior and humble service, such as
laborers, sweepers, carpenters, painters, glaziers, cook,
butler, baker, brewer, master of the kitchen, and pur-
veyor of commons, being all the ministerial agents or
servants from the lowest up to that of steward, who
at the beginning had charge of providing for the board
of six or eight students, and possibly of two or three
instructors or officers of government. The steward was
master of the kitchen, and sometimes probably acted as
chief cook, until, by the increase of the number of
students, it became necessary to have an under steward,
who took the special management of the affairs in the
kitchen. The definition of “a steward in a college is
the person who provides provisions for the students.”
This course has been at all times pursued by the Cor-
5
\ 34
poration without asking the formal approval of the
Overseers. The question now arises, What was the
origin of this practice, and may be considered as the
legal effect thereof *
Upon the organization of the Corporation under the
charter, there can be no doubt that the President and
Fellows at once made a careful survey and examination
of its provisions, and considered what construction
thereof would be the true construction, and would be
most beneficial to the interests of the institution, as well
as most expedient on the whole for their own body,
and most convenient and satisfactory to both Boards.
They well understood that the first great object of
the charter was to establish a corporation, in which
would be vested the title to all the property, real and
personal, belonging to the college, and to give to said
corporation the sole and absolute control and manage-
ment of the same.
They at once perceived that, in order to secure this
sole and absolute management of said property, it was
expedient and requisite that the Corporation should
employ and appoint all the agents and servants, through
whom they could possess and retain this management.
They must have seen the desirableness of their employ-
ing and appointing these agents and servants by virtue of
an inherent and necessary power, which they might con-
sider themselves as deriving from that primary and all-
important enactment of the charter, by which said title
was vested in, and said sole and exclusive management
was virtually conferred upon, them. They undoubtedly
preferred to exercise this power as an original and
essential right, irrespective of the subsequent provisions
of the charter, contained in the third clause, where
35
there was a certain right of approval given to the
Overseers, the construction of which might be a source
of inconvenience to the Corporation. *
With these views probably the President and Fel-
lows chose and employed all the agents and servants of
the college, from the steward inclusive down to the
mere laborers, without asking the approval of the other
Board; and they found no difficulty in pursuing this
course, because the Overseers perceived it was, and
would at all times be, necessary, and would be much more
convenient to their Board, and more beneficial to the
college than any other course.
The Overseers probably never knew or suspected
that the Corporation might be influenced at the begin-
ning by any such consideration as above suggested,
with reference to an original, inherent and exclusive
power on their part, in the employment or choice of the
agents and servants aforesaid, without asking the appro-
val of the Overseers. The Overseers, without doubt,
verily supposed that the Corporation had adopted this
course from a consideration of the intrinsic propriety
and actual necessity of the thing, and with reference to
the convenience of both Boards, and the Overseers for
the same reasons acquiesced therein.
It is manifestly of no consequence whether the
course, pursued as aforesaid in relation to this subject,
had its origin in the desire and intention of the Presi-
dent and Fellows to keep in their own hands the sole
and exclusive management of all the property belong-
ing to the college by virtue of the inherent and inci-
dental power aforesaid, or whether the President and
Fellows considered themselves as choosing and employ-
ing the steward and the servants below him, by virtue
of the third clause of the charter, and found it a matter
of indispensable propriety and necessity to do this
without the ceremony of laying a formal vote in every
case before the Overseers for their approval or disap-
proval, and the Overseers assented at the beginning and
ever afterwards to this course, with the same wise fore-
cast and in the same good spirit with which the Corpo-
ration appeared to have adopted it. The practical effect
was the same in either case. -
Suppose the Overseers had, by virtue of what they
considered their just rights, insisted that the Cor-
poration should, at regular meetings, in a formal
manner, by orders or votes, make appointments of
laborers, perhaps such as might be employed to do
some small job, and lay such orders or votes before the
Overseers for their approval, and the members of the
latter Board, consisting of the Governor, Deputy Gov-
ernor, and thirty or forty other honorable and reverend
gentlemen, had been called together to act upon such a
matter, would not this, besides being excessively trouble-
some, have been regarded as quite ridiculous 2 The
Overseers must have seen the importance and the man-
ifest necessity of leaving all such matters, occurring every
day, and perhaps several times a day (being, too, of a
mere business character, and relating to the manage-
ment of lands, buildings, and chattels), in the sole and
exclusive charge of a small Board like that of the Cor-
poration.
It was proper that there should be some understand-
ing as to the limit to which this practice should extend,
and there was an obvious propriety, when the charter
went into operation, of beginning with the humblest
servant, and extending the above practice as far as the
37
steward — that is, to all below the grade or rank of
officers of instruction and government. The students
were required to take off their hats in the presence of
the professors, tutors and other officers of instruction
and government, and to exhibit some token of recogni-
tion and respect when passing them; but not so with
regard to the steward and all servants below him. The
steward, although an important functionary and standing
in a place higher than that of some other individuals
in the employment of the college, must at an early
period have occupied a humble position. In Judge
Sewall's diary is the following entry, under date of July
15, 1687 : — “Andrew Boardman, steward and cook of
Harvard College, buried.”
For the first forty years the number of graduates
was on an average about six annually, and for the first
seventy-one years the average annual number was
about nine. It certainly could not be a place of much
dignity or consideration to provide food for six or nine
boys, some of whom were, perhaps, young Indians, the
education of whom was one of the expressed objects of
the founders of the institution.
So also, at the beginning, the number of books which
were the property of the college was small, and there
does not appear to have been any regular librarian for
the first seventeen years after the granting of the
charter, and when, in 1667, a librarian was employed or
appointed, the position must have been regarded as a
humble one, and the same course was taken as to him
as was pursued with regard to the inferior servants
aforesaid, till the year 1767. When the librarian was
first appointed, his rank was similar to that of the
steward, and it was understood that the Corporation did
38
not deem the employment or appointment of a libra-
rian of sufficient importance to warrant the formality
of consulting the other Board, or asking their consent
or concurrence. The Overseers took the same view of
the matter, and acquiesced very cheerfully in the course
pursued by the Corporation till the year 1766, when, on
the 6th of May, a committee of the Overseers, of which
Lieut. Gov. Hutchinson was chairman, was appointed
“to enquire into the state of the college, and to consider
of such things as may be beneficial to it.” This com-
mittee made a report, the conclusion of which was as
follows:– “The committee are further of opinion that
it would tend to strengthen and assist the government
of the college if the librarian were vested with all the
powers of tutors, and joined with them in the govern-
ment of the society.” -
In pursuance of this suggestion of the Overseers, as
it is presumed, the Corporation, at a meeting held soon
afterwards, passed the following rule and regulation,
viz.:-
“The librarian shall be appointed by the Corporation,
with the consent of the Overseers, and shall have the like
power and authority to punish the under-graduates for
any disorders, or breaches of the college laws, as the
tutors have ; and he shall act in conjunction with the
President and tutors in the government of the Society
in all their meetings; and with the President, profes-
sors, and tutors, in all such cases as come under their
cognizance, and shall be entitled to the same tokens of respect
from the under-graduates as the tutors are; and shall have
a chamber assigned him by the Corporation, suitable for
the inspection of some district in the college.”
This act of the Corporation, having been laid before
the Overseers, was assented to by them. When your
Committee, in their report, shall hereafter speak of the
officers of instruction and government, they wish to
have it understood that they consider the librarian as
one of that number. The librarian, having thus been
raised above the grade of the inferior servants afore-
said, and elevated to the rank of officer of instruction
and government, the order or vote by which any person
was afterwards appointed by the Corporation to fill that
place was laid before the Overseers for their approval.
A formal declaration respecting the appointment of
the librarian, and the right of approval or disapproval,
on the part of the Overseers, of the action of the Cor-
poration by which that officer is so appointed, was made
by both Boards in the 138th article of the edition of
1848 of the laws concerning the university, which
article is as follows, viz.:-
“The librarian is chosen, like the OTHER OFFICERS OF THE
UNIVERSITY, by the Corporation, with the CONCURRENCE OF
THE OVERSEERs; he is to continue in office during THEIR
pleasure, and he shall be subject to removal for neglect
of duty or misbehavior.” Thus it appears that when
the librarian was raised to the rank of an officer of gov-
ernment and instruction in the university, he stood on
the same footing with those officers, as to his appoint-
ment and liability to be removed, the Overseers having
the right of approval or disapproval in each case; and
the marked distinction between such officers and the
steward, as well as all the agents or servants below him,
was continually kept up, and all matters relating to the
steward and other inferior servants remained, without
any questions being raised, in the same state as at the
beginning, and subsequent thereto, till the year 1778.
40
During that year a vacancy occurred in the situation
of steward, and the Corporation selected and employed
Mr. William Kneeland to fill the same, in accordance
with the previous practice, and the understanding of
both Boards, that the Overseers should not be consulted,
or take any part in relation to the matter. But it
so happened that Mr. Kneeland being considered as
unfriendly to the cause of American independence, the
selection and employment of him by the Corporation
to be steward was objectionable to some of the zealous
whigs in the Board of Overseers. On this account it
seems to have been thought expedient, in order that the
Overseers might control the matter, to insist on their
right to approve or disapprove the election of steward
by the Corporation in all cases.
Accordingly, at a meeting of the Overseers in Dec.,
1778, the following vote was passed, viz.:- “It being
a matter in dispute between the Corporation and Over-
seers, whether the election of a college steward ought
to be presented to this Board for their approbation, and
the Board, not being in possession of the charters by
which this point ought to be decided, it was voted that
the secretary be directed to deliver to the president of
the council, as soon as may be, copies of the charter
granted by the General Court in the year 1642, and of
that granted in 1650, and of the appendix, granted in
1657, for the inspection of the Overseers, that they
may the better be able to discuss the matter in dispute,
and come to a determination upon it at the adjourn-
ment of this meeting.”
On the 16th of said December this adjourned meet-
ing took place, twenty-three members being present;
and the record states, that “ after Some debate it was
41
moved that the question should be put, whether this
Board have a right to a presentation of the person,
elected by the Corporation in the office of steward, for
their approbation or disapprobation ; whereupon the
previous question was moved, whether this question shall
be now put, — which, being put, it passed in the nega-
tive.” -
Thus a full account has been given of this transac-
tion, to which much importance has been attached by
the committee of the Corporation in their report afore-
said of Nov., 1856; and your committee are persuaded
that at said meeting of the Overseers, a majority of the
members present, being satisfied that the movement
had been got up by zealous and heated politicians, for
the purpose of preventing Mr. Kneeland, or any other
person, to whom they had objections, from holding the
situation of steward, resolved for various reasons to
defeat the project by the old parliamentary practice of
moving the previous question, whereby the necessity of
voting on the precise question raised might be avoided,
and the whole matter would be indefinitely postponed.
The previous question was therefore moved, and the
vote being taken whether the main question should be
then put, it was decided in the negative, and the whole
subject was thus got rid of and postponed indefinitely.
The majority were unwilling to have the main ques-
tion decided in the affirmative or the negative, and
without doubt they believed that the worst thing that
could happen would be to have it pass in the affirma-
tive; for they understood that if such should be the
result, the Corporation might not assent to it, and then
a most unprofitable controversy would arise between
the two Boards, with as much annoyance to one as the
6
42
other; and if the Corporation should acquiesce in such
a result, it would be necessary to change the practice,
which, from the beginning, had worked so well, and all
the members of the Board, after the heat engendered
on that occasion had subsided, would regret the change,
and be annoyed by having formal orders or votes laid
before them for approval or disapproval, by which such
a functionary as the steward had been elected; and
probably a further movement would be made to have
the rule extended to the selection or election of a baker,
brewer, butler, cook, carpenter, and sweeper.
For these, and perhaps other reasons, the major part
at Said meeting, held in Dec., 1778, chose to have no
change made respecting the steward, who, by the laws
and usages of the college, was entitled to no recognition
or mark of respect from the students, and was exposed
to indignities and all kinds of rudeness from them on
account of the peculiar services and various disagree-
able duties he was obliged to perform, some of which
were very offensive to the students, as the history of
the college fully discloses.
The Overseers on this occasion, as at all times pre-
viously, preferred not to have any question acted upon,
or agitated, as to their having any rights in relation to
the employment or election of steward and the servants
below him. The course pursued for more than two
hundred years on this subject by the Corporation and
the Overseers is deserving of special commendation.
The Overseers have shown much practical wisdom
touching all these inferior and smaller matters, by uni-
formly adhering to the observance of the sound and
safe maxim, “De minimis non curat lear.”
In the judgment of your Committee the foregoing
43
practice, according to which the Corporation have chosen
or employed the steward and all other servants below
the grade of officers of instruction and government,
without consulting the Overseers, or asking their appro-
val, has no tendency, nor does it begin to have any
tendency, to show that the Overseers do not possess the
right of approval or disapproval in relation to the ap-
pointment of all officers of instruction and government,
and any others that have been or may be raised above
the grade of steward. No one will venture to say that
there are not some persons engaged in the service of
the college, whose employment by the Corporation it
would be most absurd and ridiculous to present to the
Overseers for their approval or disapproval. The line
must be drawn somewhere, and whether the subject is
considered in the legal point of view, founded on some
claim of inherent power of the Corporation as afore-
said, or as a mere practical matter, it was without doubt
appropriate, especially for a considerable time after the
date of the charter, that the line of demarcation should
be occupied by the steward; and the same having been
adopted at such early period, under the circumstances
then existing, it has been deemed proper not to change
it since that time. The reasons for this course, and the
actual necessity of the thing, were most obvious and
conclusive.
On the other hand, your Committee insist, with the
utmost confidence, that the universal practice on the
part of the Corporation, to adopt a formal order or vote
in every case where an officer of instruction and gov-
ernment, or other functionary partaking of that charac-
ter, or raised to that dignity, was to be chosen, and to
lay such order or vote before the Overseers for their
44
approval or disapproval, is conclusive evidence that the
Corporation have at all times believed that the Over-
seers possessed such right of approval or disapproval,
and of course that they derived it from the charter and
laws. Not only has such been the uniform and unin-
terrupted practice, but there never has been a sugges-
tion or intimation of a doubt of such a right of appro-
val or disapproval, till a doctrine adverse to such right
was first broached in said report to the Corporation of
Nov., 1856. -
With regard to removals of officers of government
and instruction, several instances have occurred since
the date of the charter, some of which have been of an
important character, and the practice has been the same
as in the case of appointments of such officers. On no
occasion has the removal of an instructor or officer of
government been made without the action or approval
of the Overseers. All orders or votes, by which orders
and by-laws have been made by the Corporation, have
at all times been laid by them before the Overseers
for their concurrence.
Your Committee regard this practice of the Corpo-
ration and Overseers respecting the making of ap-
pointments of officers of instruction and government,
also of removals, and of orders and by-laws, as in full
accordance with the first, third, and fourth parts or
provisions of the third clause of the charter; and in
their judgment this practice is a strong confirmation
of the claim of the Overseers, that they possess the
right of approval or disapproval touching said appoint-
ments and removals, as well as said orders and by-
laws, and derive the same from said proviso to the
third clause; and it goes far to prove that the Over-
45
seers have, by virtue of said proviso, the same right
as to salaries, embraced in the second or remaining
part or provision of the third clause.
The action of the two Boards under the second
part or provision of the third clause, which relates to
the making of allowances to the officers of instruc-
tion and government of the college, alone remains to
be considered. The practice of the two Boards re-
specting this matter is by no means so intelligible
and satisfactory as their practice with regard to ap-
pointments, removals, and orders and by-laws. What
may have been the reason why such a different course
of things as to allowances or salaries has existed, your
Committee are unable fully to ascertain or explain.
With regard to the allowance made by the Corpora-
tion, without consulting the Overseers, to the steward
and other servants below the rank of officers of in-
struction and government, there is no difficulty. It
could not but be expected that the same practice would
at all times be pursued; and such a practice has in
fact been pursued, as to the allowances to the steward,
and servants of the same grade or below him, as has
existed from the beginning respecting the selection or
employment of them. The reasons in both cases have
been the same, and the Overseers have always acqui-
esced in the practice.
For the first seventy-one or seventy-two years after
the date of the charter, it does not appear that any
order or vote of the Corporation, by which the salary
of any officer of instruction and government was es-
tablished or allowed, was laid before the Overseers for
their approval; and no complaint on the part of the
Overseers of the omission seems to have been made;
46
and it is believed no reason is stated in the records or
history of the college for this course of things.
It is proper to remark, however, that, during this
period, the college was poor and in straitened circum-
stances (the whole annual “real revenue” of the col-
lege, applicable to its general purposes, in 1654, being
twelve pounds), the number of instructors and officers
was small, the allowances were necessarily very limited,
and the means of payment were precarious. The chief
solicitude at that time related to the procuring of the
means to pay the small salaries of these instructors and
officers, and the Board of Overseers would not be likely
to trouble themselves about the orders or votes of the
Corporation on this subject. It would seem that the
chief reliance was upon subscriptions and contributions.
For a long period after the date of the charter, the
President of the college depended for his moderate
allowance mainly on special grants to him by the Gen-
eral Court, and for many years, as it has been stated
by the committee of the Corporation in their report of
Nov. 1856, grants were made by the General Court of
moneys to be distributed between the President and
Fellows according to the determination of the Over-
seers of the college. Donations were also made by the
town of Portsmouth “to be improved by the Overseers
of the college for the advancement of good literature
there.” Other donations were probably given in like
manner. The Overseers, thus having the chief funds at
their disposal, frequently made appropriations of allow-
ances to Fellows, and others, without any action of the
Corporation upon them. In September, 1670, the Cor-
poration voted “to speak to" the Overseers for the en-
larging of the butler's stipend.
47
In January, 1673, the Overseers voted to pay to Dr.
Leonard Hoar f100 towards his transportation to this
country. These votes show that, for a considerable
period, the Overseers had funds under their control,
which they appropriated according to their own dis-
cretion, alone, towards providing for the wants of the
college; especially, in support of its instructors and
officers. The institution was poor, and it required con-
stant exertion on the part of both Boards and of the
friends of the college to obtain the means for supplying
its wants.
Under such circumstances, it often happened that one
Board could obtain means of relief, and raise money in
certain quarters, more successfully than the other; and
it was found that in many cases the college would de-
rive the most benefit from the separate and independ-
ent action of each Board. The Board of Overseers was,
much of the time, composed of powerful and influential
men, and their aid was invoked to raise money by their
single efforts, in which way they could accomplish much
more than by acting in formal concert with the other
Board. The aid of the Overseers was sought on such
Occasions in the same manner as their influential inter-
position was solicited to take the initiative and go forward
and try a certain professor for divers misdemeanors,
and remove him from office, and also to deal with a
powerful and unmanageable treasurer, who had been
guilty of various derelictions of duty.
It seems that the Corporation spoke to the Overseers,
and begged them to render some aid to this officer, and
certain aid to that ; and, without doubt, the Overseers
spoke to the Corporation, and desired them to make a
Small allowance out of the pittance of funds in the
48
hands of the college treasurer, promising that they
would furnish a certain sum to make up the balance of
the amount required. Thus the Corporation, by speak-
ing to the Overseers, and the Overseers, by speaking to
the Corporation, contrived to raise the means by which
the college officers might be rescued from starvation.
After the two Boards had thus consulted together, and
the Overseers had promised to furnish a specified amount,
and the Corporation had agreed to vote a certain sum
towards the support of one of the college officers, would
it be expected, or considered necessary, that the Cor-
poration should lay before the Overseers, for their ap-
proval, a formal order or vote, by which the grant, pre-
viously agreed upon as aforesaid, had been made 7
In this way matters went on down to the year 1685,
after which time, although some of the great difficulties
and causes of irregularity had been removed, and the
Corporation granted allowances and salaries every year,
yet the amounts were undoubtedly small, and as the
Corporation had not previously, for the causes aforesaid,
and perhaps for other reasons of which we are ignorant,
asked the approval by the Overseers of their orders or
votes respecting salaries, they went on in their old track
down to the year 1722, and omitted, as on all former
occasions, to lay their action before the Overseers, who
—not having been accustomed to have their approval
asked, and not being aware that any considerable
change in the state of things had occurred, and in con-
sequence, perhaps, of other circumstances, a knowledge
of which has not come down to the present generation
—did not deem the matter to be of sufficient importance
to make any complaint about it.
In 1722 and 1723 votes of the Corporation, by which
49
a Hebrew Instructor was appointed, and a grant to him
was made of a salary of eighty pounds, were passed,
and sent to the Overseers for their concurrence, and
were approved. About this period the question in rela-
tion to certain salaries was raised and discussed, it being
insisted that the Overseers had the right of approval or
disapproval of the orders or votes of the other Board
establishing salaries, which right was denied by the
Corporation.
This question was again agitated about the year 1732;
but no recognition of the claim of the Overseers as to
salaries was obtained from the Corporation, which Board
continued to pass orders or votes establishing salaries
and making allowances, which orders or votes they
omitted to present to the Overseers for approval, till
the seventh of September, 1761, on which day the Cor-
poration adopted votes, by which they established for
the then ensuing year the salaries for the officers of in-
struction and government, and for the treasurer and
the clerk of the Overseers, and these were transmitted
to the Overseers and laid before them at their meeting
in the succeeding month of October.
From this time forward down to about the year 1811,
a period of about fifty years, all the numerous orders
or votes of the Corporation, establishing annually the
salaries of the officers of instruction and government,
or making special grants to them, were uniformly pre-
sented to the Overseers for approval, and were, in every
instance, confirmed by the Board. On the 26th of No-
vember, 1810, the Corporation passed divers votes or
orders, prescribing the salaries of the several officers
of instruction and government in the college, and also
the salary of the treasurer and that of the secretary of
jºr
{
50
the Board of Overseers, with a provision, that all such
salaries, so established, should continue to be the salaries
of such instructors, officers, etc., to be paid to them
quarter-yearly, until the same should be altered by the
Corporation, with the approbation of the Overseers. The
Orders or votes, adopted by the Corporation, as aforesaid,
on the 26th November, 1810, were laid before the Over-
seers, for their approval, on the sixth day of the month
of December following.
After the year 1810 the Corporation omitted to pre-
sent their orders or votes, by which salaries were estab-
lished or altered, to the Overseers for their approval, as
they had done every year for the fifty successive pre-
vious years. -
The Rev. John Thornton Kirkland was inaugurated
President of Harvard College in November, 1810; and
one of the first acts under his administration was the
adoption by the Corporation of the vote aforesaid, on
the 26th of that month, by which it was provided that
the salaries, granted to the officers of the college the
previous year, should thenceforth be paid to them until
the same should be altered by said Board with the ap-
probation of the Overseers. By reason of this vote the
practice of prescribing and adjusting the salaries was
changed, and thus they were made to continue for an
indefinite period, and to remain permanent. When this
was done, the Corporation omitted to lay before the
Overseers the orders or votes by which they increased,
changed or prescribed any of the salaries, as they had
done every year for the preceding fifty years. Of
course the Overseers received no information from the
Corporation, and had no knowledge of their acts and
51
doings in relation to salaries or special grants to the
officers of instruction and government of the college.
It is true that for several years past the Treasurer's
Annual Report has every year been laid before the
Overseers, in which the amounts paid during the year
to the officers of the college for their respective salaries
are stated ; but the report contains no express notice
of any particular changes which have been made of
the salaries in the course of the financial year to which
the report relates. Such has continued to be the course
of things, touching salaries, to the present time.
Since the year 1810, there have been two important
alterations by the General Court of the constitution of
the Board of Overseers, by means of which the Board
was made to consist of a very large proportion of new
members. In the year 1855, the Board consisted of
many new members under a recent new organization of
the Board by the Legislature, and in the course of a
discussion, at a meeting of the Overseers during that
year, respecting the Plummer Professorship of Christian
Morals, pointed reference was made to the subject of
salaries. In consequence of what occurred on that
occasion, a committee was appointed to consider the
relative powers, duties, and responsibilities of the Presi-
dent and Fellows, and of the Overseers of Harvard
College, more especially in relation to salaries, etc., etc.
This committee made their report, in January, 1856, as
stated at the commencement of this report, in which it
was insisted that the Overseers had the right of approval
or disapproval of the orders or votes of the Corporation,
by which salaries were established, by virtue of the pro-
viso to the third clause of the charter of Harvard College.
After said report was presented and accepted by this
52
Board, a committee, consisting of the same members as
the former committee, was appointed to confer with a
like committee on the part of the Corporation relating
to the questions at issue between the two Boards. This
last committee on the part of the Overseers had several
conferences with said committee of the Corporation.
At the first of these meetings, the committee of the
Overseers read to the committee on the part of the
Corporation the form of two resolutions, or joint rules,
with the adoption of which alone, or any other, sub-
stantially accomplishing the same object, they stated
they should be entirely satisfied and content.
These two joint rules, or resolutions, were as follows,
viz: — -
1st. It shall be the duty of the President of the
university, in a reasonable time, to lay before the Board
of Overseers for their approval all votes or resolves of
the Corporation, by which any bequests or donations
for the use of the college, made for the promotion of
specific objects and purposes, or encumbered with spe-
cial trusts and conditions, shall by said Corporation be
accepted.
2d. It shall be the duty of the President, without
any unnecessary delay, to present to the Overseers for
their concurrence all votes or orders of the Corpora-
tion, by which the salaries of any instructors and officers
of government in the college shall be established or
modified, or by which any special grants shall be made
to such instructors and officers.
These two committees failed to come to any adjust-
ment touching the matters in controversy, and the
committee of the Corporation made their report to
their Board in November, 1856, as aforesaid, and the
53
committee on the part of the Overseers made a report
to their Board on the 20th of January, 1857, stating as
concisely as possible (the chairman being then very ill)
their endeavors to procure the adoption of said joint
rules, with some remarks by way of explanation, and
prayed to be discharged from the further consideration
of the subject. The request of said committee was
granted by the Board, and they were discharged ac-
cordingly.
At a meeting of the Overseers, held a short time
subsequently, the Hon. Reuben A. Chapman, a member
of the Board, offered the following resolve, viz: —
Resolved, That, in the opinion of this Board, the
appointment of officers, fixing the salaries of officers,
and the acceptance of all donations and bequests, which
are accompanied by conditions or special trusts, are
among the things which it is the duty of the Corpora-
tion to lay before this Board for our action thereon.
This resolve, being explained by the mover, and its
adoption ably advocated by the Hon. E. Rockwood
Hoar and Hon. Francis Bassett, was passed by the
Overseers without a division. It is a source of much
satisfaction to this Board that their rights were vindi-
cated and supported on said occasion by two learned
lawyers, who are now justices of the Supreme Judicial
Court of the Commonwealth.
Thus it appears that during this whole history in
relation to salaries, the Corporation has for about three
Quarters of the time, since the date of the charter,
omitted to lay their orders or votes, prescribing salaries,
before the Overseers for approval. Of this the Over-
seers made no complaint for the first seventy-one or
seventy-two years, but since that period they have on
54
divers occasions complained of the omission, and in-
sisted that they had the right of approval or disap-
proval of the doings of the Corporation respecting
salaries, secured to them by the charter.
The right of the Overseers cannot be regarded as in
any degree impaired by the lapse of time, during which
such omission has been continued, especially when it
is considered that the Overseers have not failed, on
divers times, seriously to insist upon their claim, and
that the President and Fellows have occasionally laid
their orders or votes on this subject before the Over-
seers; and this the Corporation once did as to the
salaries of officers of instruction and government and
of the Treasurer every year during a period of fifty
successive years. Although the Overseers have some-
times, for a considerable period, submitted in silence to
the omission of the Corporation to comply with what
the Overseers have regarded as an express and clear
provision of the charter, yet in no case have they ever,
when the question has been brought forward or agi-
tated, hesitated to claim their right by the charter of
approval or disapproval as to the orders or votes of the
Corporation respecting the salaries of officers of instruc-
tion and government.
In the report of November, 1856, of the Committee
of the Corporation, they seem disposed to draw large
conclusions from the silence of the Overseers on two
or three occasions, the most important of which they
state as follows, viz.: “The statutes and laws of the
university underwent an entire revision by both
Boards in the year 1848, and a code was adopted
by their concurrence, after amendments by the Over-
seers. This code purports to contain all the laws of
55
the university, including those of its general organiza-
tion and government.” The said committee say that
“they look in vain for any article or suggestion, indi-
cating that the action of the Corporation upon salaries
or any financial matters is to be submitted to the
Overseers, or be in any manner subject to their confir-
mation or revision; ” and they add that “it is submit-
ted with great confidence that clearer proof could not
be exhibited, that, up to the time of the revision and
establishment of that code, in 1848, the Overseers did
not claim, and did not imagine that they possessed the
power of revising and controlling the action of the Cor-
poration . . . in the establishment of salaries.”
Your Committee agree with said committee of the
Corporation that the object of both Boards in 1848
was to prepare a code which should contain all the
laws of the university, including those of its general
organization and government. The design evidently
was to declare what should thenceforth be considered,
not only the orders and by-laws of the university, but
also to promulgate, in suitable, clear and convenient
phraseology, those provisions of the charter and of the
laws supplementary thereto, with regard to which said
Boards are most frequently called upon to take action ;
and, without doubt, it was intended to set forth these
provisions in such a form as should present the con-
struction that had uniformly been given to them with
the uninterrupted acquiescence of both Boards.
Of course, when the two Boards came to a provision
of the charter, about the meaning or construction of
which they could not agree, an enunciation of the
meaning or legal effect thereof was necessarily omit-
ted. It is very probable that the two Boards would
56
on this, as they had on several former occasions, dis-
agree when they came to that part of the charter
which relates to the establishment of salaries.
This therefore is a good reason why no declaration
was made on the subject of the salaries of officers of
instruction and government, and the omission is no
more adverse to the construction which the Overseers
have put upon the provision in the third clause of the
charter touching salaries, than it is to that which the
Corporation has claimed.
It also should be particularly remembered that the
Corporation, having in this case, as in all others, the
initiative, prepared this new edition and digest of
the laws, adopted it by a formal vote, and then laid
the same before the Overseers, who concurred therein,
with the exception of one unimportant paragraph,
which was indefinitely postponed. The whole of the
existing digest and edition of the laws, published in
1848, was the original work of the Corporation, and
the question may well be asked why they omitted any
declaration as to their powers respecting salaries. Two
reasons only can be given. One is that they knew
they had not an exclusive power over the subject
(which fact, however, they might not be willing to
acknowledge). The other is that they well understood,
if they should make a declaration, asserting such exclu-
sive power on their part, that the Overseers would not
concur in any such declaration.
It is difficult to conceive how the Overseers can be
considered as prejudiced by this omission on the part of
the Corporation. When this code was laid before the
Overseers, they might well have said that, although
they should have been pleased to have had the Cor-
57
poration insert a declaration that they had the powel
to establish salaries, subject to the approval or disap
proval of the Overseers, yet, as the Corporation had
altogether omitted the subject of salaries, a non-concur-
rence by the Overseers in the adoption of the said
code or digest would be likely to lead to a defeat or
loss of the whole work. Therefore the Overseers
voted to concur. They perceived that such action on
their part could never be regarded as an admission
adverse to their right of approval or disapproval re-
specting salaries, but, on the contrary, the omission
by the Corporation to insert a declaration that they
possessed the exclusive power as to the establishment
or modification of salaries was a circumstance signifi-
cant and adverse to their possessing any such power.
Again, as the committee of the Corporation have
undertaken to draw an inference adverse to the rights
of the Overseers from the omission of any reference, in
said edition of 1848 of the laws, to the subject of
salaries, your Committee think proper to allude to cer.
tain things that are not only not passed over in silence,
but fully expressed therein. One matter they will refer
to, which they deem of much significance and import-
ance. It is contained in article twenty-eight, which is
in these words: “All the officers of instruction and
government in the university are chosen by the Cor-
poration with the concurrence of the Overseers, and
are subject to removal for inadequate performance or
neglect of duty or misconduct.”
Here are substantially set forth in plain modern
phraseology two of the provisions of the third clause
in the charter, under which the Corporation make
appointments and removals, subject to the concurrence
8
58
of the Overseers. This is a simple and distinct assertion
that the Corporation make appointments and removals
of officers of instruction and government, and that the
Overseers exercise the right of approval or disapproval
thereof. This is a declaration of the construction of
said two provisions in said third clause, which the Cor-
poration and Overseers have adopted and acted upon
from the first moment of the charter, for a period of
more than two hundred years. Must not a construc-
tion, adopted and acted upon for such a length of time
with perfect uniformity and unanimity, without the
suggestion of a doubt, and in 1848 stated and confirmed
in a new and authentic edition of the laws, affecting the
college and sanctioned by both Boards, be regarded as
the true construction, which must govern and prevail
in all cases of future action on the part of either Board, or
of intercourse between the Corporation and Overseers?
As then the Corporation must be considered as having
made these appointments and removals of officers of
instruction and government for this long period by
virtue of the said third clause, and laid their orders or
votes on the subject before the Overseers for their
approval, and as the Overseers have during all this
time exercised this right of approval or disapproval,
must they not be regarded as exercising it under the
clause of the charter by which the Corporation made
the said appointments and removals, that is, by virtue
of the proviso to said clause 7
In the course of these two hundred years and up-
wards there must have been certainly several, and
probably many, appointments and some removals, about
which much division of sentiment must have prevailed,
and great and perhaps intense excitement has existed.
59
Is it possible, then, if there had been any doubt as to
the right of approval or disapproval by the Overseers
of the orders or votes by which the Corporation made
such appointments or removals, that the Corporation
should never in a single instance have withheld the
order or vote by which they made an appointment or
removal, and omitted to lay it before the Overseers ?
Your Committee believe they may with perfect con-
fidence say that the Overseers have never on any oc-
casion expressly or impliedly admitted that they did
not, by virtue of said proviso, possess the right of ap-
proval or disapproval of the orders or votes adopted
by the Corporation in relation to appointments, re-
movals or salaries of officers of instruction and gov-
ernment, unless they did so by virtue of a report,
which a committee of that Board, appointed Nov. 20,
1760, made in the year 1761, and which the committee
of the Corporation, in their report of Nov. 1856, have
dwelt upon at Some length with apparent satisfaction.
The facts respecting said matter are as follows, viz.:
At a meeting of the Overseers, held on the 20th of
Nov., 1760, they adopted the following vote, viz.: “Voled,
That there be a committee to consider whether it is in
the power of the Corporation to make allowances to
those who are employed in the government or instruc-
tion of the college, without the consent of the Over-
seers,” and a committee of five was then appointed.
This committee afterwards, in 1761, made a report,
which was read, and the 9th of July, 1761, was spe-
cially assigned for its consideration, and it was voted
that the Corporation be served with a copy thereof.
This report was not taken up for consideration at said
adjourned meeting in July, nor was it alluded to. It
60
does not appear that it was ever accepted by the
Overseers, and no further notice was taken of it on
their records, and no allusion was ever made to it on
the records of the Corporation.
The question now is, what was the character and
contents of said report 7 As it has been stated, this
report is not set forth or recorded, in whole or in part,
on the books of the Corporation or of the Overseers.
The said committee of the President and Fellows in
their report of November, 1856, have produced two
documents, one of which they say is the report afore-
said, made to the Overseers in 1761, and the other
they call the answer of the Corporation to the same.
The paper called the report of the committee of the
Overseers made in 1761, purports to be signed by “An-
drew Oliver, per order,” the first person named on the
said committee appointed the 20th of November, 1760.
In said supposed report it is stated that the committee
had consulted the charter, and had come to the conclu-
sion that the Corporation had no right to make allow-
ance to persons employed in the government of the
college without the consent of the Overseers, and that
this right of approval as to salaries is claimed by virtue
of the fifth clause of the charter. It is remarked also
in said paper that “the officers intended in the third
clause of the charter are neither the President nor Fel-
lows, nor any concerned in the government of the col-
lege, but such officers as are ranked after the scholars of the
college; the officers here intended, no doubt, are the
steward and butler, and any other officers (if such there
be) not concerned in the government of the college.”
It is, in fact, substantially denied in said paper that
the Corporation has by virtue of the third clause of the
61
charter any authority to elect officers of instruction and
government, but only such mere ministerial agents or
servants as aforesaid, the choice of whom, as it is alleged,
is in the Corporation, independent of the Overseers.
The committee of the Corporation, in their report of
November, 1856, to that Board, repudiate the doctrine
contained in said old paper, by which the power of the
Corporation to elect officers of government and instruc-
tion under the third clause is virtually denied, but they
seem to be well satisfied with the conclusion therein
that the Overseers have no right of approval or dis-
approval as to appointments made by the Corporation
under said clause. It is difficult to comprehend how
a committee, whether able and learned, or of ordinary
capacity, could have made such a poor and imperfect
report, as is contained in said old document. All the
important and essential powers of both Boards, granted
by the provisions of the third clause, are disallowed
and denied in the paper.
When allusion is made in said document to the third
clause, it is a matter of regret that its provisions were
not set forth, especially that the proviso to the clause
was not stated in the very words thereof, so that it
might be certain that no error had occurred, and that
the meaning and force of said proviso were under-
stood. - º
The question now is, whether said old paper, produced
by the committee of the Corporation in their report of
November, iS56, is the report which was actually made
in 1761 by the committee of the Overseers, appointed
November 20, 1760. There is no circumstance which
satisfactorily proves its identity or authenticity. Every
one, conversant with legislation and the files of our Sen-
ate or House of Representatives, knows that in a con-
troverted case, especially where there has been a large
committee, consisting of five, seven, or more members,
they may be divided, and after a hearing, and long dis-
cussion amongst themselves, the committee assembles to
make a decision and take a final vote, and decide upon
a report to be submitted to the Senate or House. On
such an occasion the chairman thinks it important for
him to come to the meeting prepared with a report,
signed by him for the committee, expecting and hoping
that his views will meet the approbation of his associ-
ates; in addition to which there may be one or more
additional reports drawn up and signed by one or more
members.
It sometimes happens that in a question of difficulty
and doubt, each member comes with a report, express-
ing views peculiarly his own. This might well be the
case where the members of a committee had undertaken
to make up their minds respecting the meaning of the
several clauses, or the several parts of a clause, in such
an instrument as the college charter, and that too with-
out the benefit of having heard an argument from
learned counsel.
Again, in searching amongst old files of twenty, thirty
or fifty years previous, it frequently happens that in the
case sought for not an original paper can be found, and
great disappointment is not unfrequently experienced
in finding other papers, for the most part of no conse-
quence, but as to the important document sought for, it
cannot be discovered. So, where there may have been
several reports in a case, one or more may be found, but
the real one, which was finally adopted by the commit-
tee and presented, is missing.
63
When several reports are made, they may be similar
in some particulars, and very different in other respects.
So here the real report may have contained no notice
of the third clause of the charter, but may have dwelt
on the fifth clause, while the chairman may have drawn
up his views as expressed in the old paper produced,
in which the third clause is particularly noticed.
The said committee of the Corporation, in their re-
port of November, 1856, have particularly referred to
another old paper, produced by them, which they say
is an answer made by the President and Fellows to the
said supposed report to the Overseers in 1761. This
is a paper about which more doubt, if possible, exists
as to its authenticity than as to said paper signed by
Andrew Oliver. It is not signed by the President, or
any committee of the Corporation. There is no trace
of any action on the subject of such reply either on the
records of the Corporation or of the Overseers.
When the question as to salaries was pending, in
1761, and a committee of the Overseers made a report,
some one of the Corporation, or some ambitious pro-
fessor or tutor, may have tried his hand at making a
reply, and presented it to the President; but the same,
never having been adopted or sent to the Overseers,
found its way into some recess, and is now discovered
amongst the relics of a century ago.
There is one thing in said supposed reply which
deserves particular notice. It contains no reference to
the third clause of the charter, which is somewhat en-
larged upon in said paper purporting to be signed by
Andrew Oliver. Now it can hardly be supposed that
this passage in the supposed report of 1761 to the
Overseers, which disparaged the powers conferred on
64
the Corporation by said clause, would have been wholly
passed over, without some slight notice at least, in the
reply of the President and Fellows. This circumstance
tends to show that the said paper, signed by Andrew
Oliver, was not the report which the writer of the
paper, called the reply, had before him.
For the reasons aforesaid your Committee cannot
think that either of said two old papers are entitled to
any consideration or confidence. It is quite certain
that it would be very unsafe to draw any inference
from either of them which would be prejudicial to the
rights of the Overseers or the Corporation.
There is one circumstance, however, which, unex-
plained, your Committee are bound to admit has some
significance. The paper, produced as the report of a
committee of the Overseers, certainly expresses the
opinion of one member of that Board, namely, that of
Mr. Andrew Oliver, clearly opposed to the views taken
by your Committee respecting the construction of the
third clause of the charter, and if by possibility that
paper is, contrary to the judgment of your Committee,
the actual report made in 1761, then it must be con-
fessed that it is an admission on the part of a majority
of the committee present when the report was adopted,
that the Overseers have not, by virtue of the proviso to
the third clause of the charter, the right of approval or
disapproval as to appointments, allowances, and remov-
als, made by the Corporation.
It is to be regretted that Mr. Oliver did not state in
his report the proviso to the third clause in the words
thereof in full, by which it would have appeared what
his reading was. A learned lawyer in the summer of
1855 remarked, in a conversation with the chairman of
65
your Committee, that if the words of the proviso had
been “the said orders and by-laws,” or some equivalent
expression, it might have been difficult for the Over-
seers to claim, by virtue of said proviso, a right of ap-
proval or disapproval as to appointments, allowances
and removals.
This remark made a decided impression on the mind
of the chairman of your Committee; and when the
paper aforesaid, signed by Andrew Oliver, was discov-
ered, he felt much solicitude on the subject, and went
immediately to Cambridge, and examined the original
charter of Harvard College, and found that the word
orders alone was contained in said proviso, that is, that
no such word as laws or by-laws was associated with the
word orders therein. The reading of the said proviso
was found to be the same as that in the copy of the
charter in the manual, which all the members of this
Board are at the present day furnished with.
The present secretary of the Overseers having ex-
tensive and accurate knowledge with regard to all
ancient matters connected with Harvard College, and
the colony and province of Massachusetts Bay, it was
supposed that he might be able to give some informa-
tion on this subject. The chairman of your Committee
therefore inquired of him whether he had ever seen
any manual, which bore date, or appeared to have been
published, or in use, at any time prior to the Revolution
of 1776, and which contained a copy of the charter.
To which question the secretary replied that he had
never seen or heard of any such manual, containing a
copy of the charter of the college.
At a subsequent period the chairman of your Com-
mittee called at the office of said secretary, and there
9
66
spent some time in looking over several of the early
volumes of the Overseers' records; and his attention
Was attracted to the fact that in two or three instances
meetings of the Board were called, or held by adjourn-
nent, for the purpose of considering some question in
relation to certain rights of the Overseers under the
charter; and that on one or more occasions the secre-
tary was instructed, inasmuch as the Board was not in
possession of the charter, etc., to lay before said Board
copies of the charter and appendix for their inspection,
that they might be able to decide some point or matter
pending before them.
The question then arose in the mind of the chairman
of your Committee whether the copies of the charter,
which on any occasion the secretary thus laid before
the Overseers, or furnished to any member of the Board,
were correct copies, and whether there were any means
of ascertaining that fact, or of learning what the secre-
tary made or derived his copies from, - whether from
the original charter in the custody of the President at
the college, or from some authenticated copy thereof.
He then inquired of the secretary, who was present,
how he supposed some one of the Overseers obtained a
sight of the charter, or ascertained in the most con-
venient way what the provisions of the charter might
be touching some particular matter, or from what
source the secretary in former years had procured a
copy thereof for the use of the Overseers, when he had
been instructed to lay a copy before the Board.
“O,” said the secretary, “a full copy of the charter
and of the appendix is contained in the first volume of
the records of the Overseers, where it was entered by
tutor Flynt, secretary of the Board, and certified by
67
him to be a true copy in each case. This was done
about the year 1718. Whenever the Overseers, or any
committee or member thereof, wished to see the char-
ter or appendix, application was, without doubt, made
to the secretary for an inspection thereof; and when-
ever the Overseers had any question before them, upon
which some provision of the charter might be Sup-
posed to have a bearing, they would direct the secre-
tary to lay a copy before them at the next meeting,
and of course all he would have to do would be to put
this first duodecimo volume in his pocket, and thus
have at the meeting the charter and appendix, that
is, authenticated copies thereof, for the inspection of the
Overseers; and if some member of the Board should
find any difficulty in reading the hand-writing of tutor
Flynt, who made these copies, the tutor himself, or his
successor, who had become familiar with the writing,
would be ready to read and explain it.”
As soon as the secretary explained in what way the
Overseers in former days ascertained what were the
contents of the charter, or what some particular pro-
vision of it might be, the chairman of your Committee
at once desired the secretary to turn to the place in
said first volume of the records where a copy of the
charter as well as of the appendix was to be found, and
point out the third clause of the charter, and especially
the proviso at the end thereof. The important proviso
was then pointed out, and behold it read as follows, viz.:
“Provided the said laws and orders be allowed by the
Overseers.” Thus the perplexing mystery was revealed,
and the great difficulty was explained. This perfectly
accounted for the fog that beclouded the mind of An-
drew Oliver, who wrote the old paper aforesaid of 1761.
68
Your Committee have thus travelled over much
ground in the examination of the various questions that
arise respecting the third clause of the college charter,
and the proviso to the same. They will now present a
Sort of recapitulation, or rather restatement, of the po-
sitions they have endeavored to establish, and will add
such other points and remarks as may, in their approach
to the end of their report, occur to them.
1st. The first great and paramount object of the
charter was to establish a corporation, in which the
title to all the property belonging to the college, real
and personal, might be vested, of which property the
Corporation should in law have the sole and absolute
management; and the President and Fellows at the
beginning, and at all times since, have without doubt
acted on the principle that they possessed an incidental
and inherent power of using all the means requisite to
enable them to exercise this sole management of said
property, without being liable to be controlled or affect-
ed by any legal right of interference or action on the
part of the Overseers.
2d. The third clause is that part of the charter from
which the President and Fellows derive all their eayress
power to make appointments and removals of officers
and servants of the college, also allowances to them and
orders and by-laws. This point is now admitted by both
Boards, and no question can hereafter be raised on the
subject.
3d. The question then arises whether the Overseers
have the right of approval of all orders or votes which
the Corporation may pass by virtue of the provisions
of said clause, and if they have not this right as to the
action of the Corporation in all cases under this clause,
69
then the inquiry should be in what cases the Overseers
have the right. -
The Overseers do not ask to have or exercise any
right of approval or disapproval of the action of the
Corporation by which the steward, or other servants
below him, are chosen or employed, and they prefer to
have the old practice continued, which has existed un-
interruptedly from the beginning with regard to such in-
ferior agents or servants as are selected or employed with
reference to the management of the college property,
and the material interests and business matters which
are incidental to said property, or have any relation
thereto. The Overseers are entirely indifferent whether
this practice is considered as having existed from the
beginning, or as now existing, by reason of a claim on
the part of the Corporation of an inherent and original
power, incidental to their sole and exclusive manage-
ment of said property; or whether it grew out of the
necessity of the case, and for that reason, and as a great
relief to the Overseers, it was always cheerfully assented
to and acquiesced in by them. -
The Overseers are also willing and desirous to have
the practice continued, by which the Corporation have
at all times, without asking the previous consent or sub-
sequent approval of the Overseers, determined what
should be the compensation of the steward, and of all
the servants below him, for their services, for the same
reason they have chosen or employed such agents and
servants without consulting the Overseers, or desiring
their approval. -
4th. Whenever college appointments are mentioned
or alluded to by some one educated at the university,
or having any connection with it, or knowledge of its
70
concerns, the appointments of the officers of instruction
and government are alone intended; no reference what-
ever is had on such occasions to the steward, or to the
servants below him.
The chief matter which the Overseers can feel any
interest about, when appointments, salaries and removals
are alluded to, relates to the appointments, salaries and
removals of the officers of instruction and government,
and the question is whether they have the right of ap-
proval or disapproval of the orders or votes by which
the Corporation under the third clause make such ap-
pointments and removals, and establish salaries, as well
as make orders and by-laws. It always has been
and still is admitted by the President and Fellows
that the Overseers have, by virtue of the proviso at
the end of the third clause of the charter, the right
of approval or disapproval of all votes by which
the Corporation pass orders and by-laws under the
fourth part or provision of said third clause. The
Overseers insist that said proviso applies also to the
other three parts or provisions of said third clause, and
that they have the right of approval or disapproval as
to appointments, salaries and removals of officers of in-
struction and government, by virtue of said proviso, as
well as they have the right as to orders and by-laws.
This depends on the question whether the word orders
in said proviso means the same as votes, or whether it
signifies the same as orders and by-laws.
5th. The word orders in the proviso to the third
clause signifies the same as votes. This fact is perfectly
apparent on a perusal of the records of the colonial legis-
lature and of the whole colonial history of Massachusetts,
and is proved by the practice in towns and corporations
7 |
in Massachusetts, and is shown by an examination of
the writings of our statesmen, legislators and scholars,
and also of the records of the Corporation of Harvard Col-
lege; and this proviso with the word orders, having the
same construction and signification as votes, manifestly
gives to the Overseers the right of approval or disap-
proval of all votes by which the Corporation make
appointments and removals, and establish salaries of
officers of instruction and government, as well as make
orders and by-laws. In Worcester's Dictionary, under
the definition of the word “vote,” the following citation
is made from the Hon. L. S. Cushing's MANUAL OF PAR-
LIAMENTARY PRACTICE, a work of high authority, viz.:
“The judgment, opinion, sense, or will of a deliberative
assembly is expressed, according to the nature of the
subject, either by a RESOLUTION, ORDER, or VOTE.”
6th. The construction aforesaid, put upon the pro-
viso to the third clause of the charter, is distinctly
admitted and confirmed so far as regards appoint-
ments, as has been already stated, by the memorial of
the President and Fellows to the legislature of Massa-
chusetts in the year 1851, in which they say, “It” (the
charter) “gave to them” (the Corporation) “the sole
power of appointing all OFFICERS AND SERVANTs of THE
COLLEGE, and vested in them the exclusive right of enact.
ing rules and laws for its government, and administering
them, subject only to the approval or disapproval of
such APPOINTMENTS, rules and laws by the Overseers.” This
is a clear and conclusive declaration that the Overseers
have the right of approval or disapproval of the ap-
pointments of officers and servants of the college, made
by the Corporation under said third clause, and it
follows with perfect certainty that the Overseers must
7
2
have this right by virtue of the proviso to said clause,
and if that proviso applies to appointments, it must
necessarily and inevitably apply to salaries and removals.
This is further confirmed not only as to appointments,
but as to removals, by the joint action of the Corporation
and Overseers which occurred in 1848. In a collec-
tion or new edition of the laws concerning the college,
revised and approved by both Boards, there is set forth
substantially, in article twenty-eight, the first and third
provisions of the third clause of the charter, and also
the proviso to said clause, as understood by your Com-
mittee; that is, the practical construction put upon the
same by the Corporation and Overseers from the begin-
ning, during a period of more than two hundred years,
is declared in the following words, namely: — “All the
officers of instruction and government in the university
are chosen by the Corporation, with the concurrence of
the Overseers, and are subject to removal for inadequate
performance and neglect of duty or misconduct.”
7th. It should be constantly recollected that the im-
portant admissions and declarations aforesaid of the
Corporation that the Overseers possess the right of
approval or disapproval as to appointments as in the
said memorial of 1851, and as to appointments and re-
movals of officers of instruction and government as in
the code or edition of 1848 of the laws, were made on
occasions favorable for accuracy of statement, and such
admissions and declarations, made under such circum-
stances, have much more weight than an assertion of
a claim by the Corporation, or by a committee of that
Board, made in 1856, in the heat of a controversy,
when a question was pending concerning such claim
between the two Boards. It should also be remem-
73
bered that four of the persons, who were members of
the Corporation in 1848, when the said new edition and
digest of the laws was prepared and adopted by that
body, were members in 1851, when said memorial was
presented to the House of Representatives, and were
also members when said report of November 1856 was
presented to and accepted by said Board, of which Board
said four constituted a majority.
8th. Again, if the Overseers have the right of ap-
proval or disapproval as to appointments, as it is admit-
ted by the Corporation in their said memorial of 1851,
and if they have the same right as to appointments and
removals as it is admitted and declared by the Corpora-
tion and Overseers in the edition of 1848 of the laws
respecting the college, where would be the most obvious
and natural place for the recognition of such a right of
approval or disapproval 2 Would it not be where this
proviso is . There is the appropriate, and in fact the
necessary place for it, and it must be there, unless the
language of this proviso forbids it.
Here is a proviso, at the end of the third clause, in
which some right of approval or disapproval is given to
the Overseers, and it always has been, and is now admit-
ted by the Corporation that this proviso is applicable to
one at least of the four parts or provisions of the third
clause of the charter; and the reasons why it should be
considered as applicable to each of the other three parts
or provisions, are stronger and more exacting than any
reason can be given for the applicability of said proviso
to the last part or provision of said clause. The appli-
cability of said proviso to all the four parts or provisions
of said clause depends upon the meaning of the im-
portant word orders contained in said proviso. In order
10
74
to confine the application to the fourth part or provision
only of Said third clause, this word orders must be made
to signify the same as rules and regulations, or laws or
by-laws, or orders and by-laws. The reasons are so
strong however against the adoption of this significa-
tion of the word orders, and of a consequent narrow,
partial, and wholly imperfect application and use of said
proviso, that this word surely ought not to be so inter-
preted, provided it is capable of any other meaning.
Your Committee have demonstrated, as they believe,
that this word, when standing alone, does not signify
rules and regulations, or laws or by-laws, or orders and
by-laws, but always, or almost always, it means the
same as votes. Why then should not this be promptly
and at once adopted as the true meaning of the word,
by means whereof this important proviso is made ap-
plicable to all said parts or provisions of said third
clause, including the first three as well as the fourth 2
When this question is placed in the scale of reason,
common sense and clear evidence, the construction
given to this word as bearing a meaning very similar
to, or identical with, that of votes, preponderates with
decisive and unremitting energy.
9th. When a professorship, or other new office in the
college, is established, the matter is always submitted to
the Overseers, and their concurrence is asked by the
Corporation. On all such occasions, the question as to
what shall be the salary of the incumbent of such new
office of instruction or government, is an important ele-
ment in the consideration of the Overseers. This also
is the case at all times when appointments are made or
approved. Appointments and salaries have important
mutual relations. Action can hardly be taken by the
75
Overseers in relation to an appointment without refer-
ence to the salary of the appointee. If the Corpora-
tion in their order or vote, establishing a professorship
or assistant professorship, prescribe the salary of the
professor, and lay their doings before the Overseers, and
the same are approved, the Corporation are under pe.
culiar obligations, in addition to those imposed by the
requirements of the charter, if they shall afterwards
increase or change said salary, to ask the consent and
approval of the Overseers. It is a violation of the un-
derstanding and substantial agreement between the
two Boards, if the Corporation presume to increase, or
otherwise change, the salary of an incumbent of such a
new professorship, which salary was an important and
essential part of the transaction when such professorship
was established.
10th. Whether salaries should be established for an
indefinite term, or for the specific term of one year
only, will be a subject for the special consideration of
the Corporation. As they have the initiative, they will
of course have the matter under their entire control in
this respect, and will adopt orders or votes, by which
the salaries of the college officers and instructors shall
be established for an indefinite period, or for the definite
term of the then ensuing financial year.
11th. With regard to any apprehension on the part
of the Corporation that the exercise by the Overseers
of the right of approval or disapproval as to salaries
might be a source of evil, or annoyance, your Commit.
tee are very confident that there is not the slightest
ground for any such fear or anxiety. Every one, who
has been for a considerable period an Overseer, well
knows that it rarely happens there is a single member
T 6
of the Board, who has not reasons for desiring the good
will and favorable regard of the President of Harvard
University. The Overseers must at all times under-
stand and feel that the Corporation have the best means
of knowing what the salaries of the officers of instruc-
tion and government ought to be, and they will always
be disposed to approve the action of the Corporation
touching salaries, unless on examining a particular case
they shall be well satisfied that the doings of the Cor-
poration are clearly wrong and ought to be corrected.
The prevailing disposition of this Board will be to ap-
prove the votes of the Corporation respecting salaries,
unless they receive an intimation from some member of
the Corporation, or other person connected with the col-
lege, who is known to be desirous of promoting its best
interests, that a special examination of one or more
certain salaries should be made ; and if any one of the
Overseers should happen to be somewhat pragmatical,
and should on some occasion object without good reason
to the amount of a particular salary, the President and
treasurer, being members of the Corporation, and ex-
officio members of the Board of Overseers, will be
present, and by their statements and explanations will
very easily prevent any objectionable action on the
part of this Board.
When the Corporation have on their minds the fact,
that their doings are to be submitted to, and passed
upon, by another Board, they will do their best to
adjust the salaries in a reasonable, impartial and proper
manner, so as to avoid all danger of a disapproval by
such other Board of their order or vote, by which any
salary may be established or modified. The best evi-
dence as to this matter may be found in the history
77
of the adjustment of salaries by the Corporation every
year from 1761 to 1811. The Corporation took such
good care to guard against partiality and favoritism,
and in so judicious a manner to fix and regulate every
year the salaries of the officers of instruction and gov-
ernment and of the treasurer, that not a word of objec-
tion or dissent was heard from the Overseers in a single
instance, for these fifty successive years, which elapsed
during a part of the administration of President Hol-
yoke, the whole of the period during which Presidents
Locke, Langdon, Willard, and Webber were in office, and
the early part of the presidency of Dr. Kirkland.
12th. It is of great importance to the President and
Fellows, and also to the college, that they should at all
times comply with the provisions of the charter. Is it
not their duty and a matter of high expediency to
refrain from any action which may be considered as a
disregard of the just rights of the Overseers? Would
it not be much better for the Corporation to abstain
from exercising their own full rights than to exceed
their powers in a single instance, and if a question
arises whether they should lay their orders or votes
before the Overseers touching a certain subject for ap-
proval, will it not be the wisest course for them to act
in accordance with the wishes of the lower Board, when
a contrary action would be attended with much doubt,
and the adoption of the course desired by the Overseers
can never be a source of any injury or danger to the
college, or a matter of any annoyance or inconvenience
to the Corporation, but manifestly may be beneficial to
the university and satisfactory to the great body of its
able and judicious friends 2
Again, if at any time a radical movement against the
78
Corporation should be conceived, the projectors will
never fail to avail themselves of some violation or disre-
gard of the charter by that body as their chief ground
of assault, if such a violation or disregard has actually
occurred, and is known to such projectors, or if a case
of such violation can be made out with a tolerable show
of argument. If in 1851 the circumstance of the omis-
sion by the Corporation for several previous years to lay
their orders or votes respecting salaries before the Over-
seers for approval had been known, and fully under-
stood, as it has been since, the bill then introduced for
remodelling the Corporation might have passed. It
should always be remembered that the Board of Over-
seers consists of the Governor and Lt. Governor of the
State, the President of the Senate, the Speaker of the
House, and the Secretary of the Board of Education,
and thirty other gentlemen, chosen by the legislature, and a
part of them are chosen every year.
It is believed that there are not now, and there have
not been for a long time, any real matters of disagree-
ment between the two Boards, except such as relate to
salaries, and to bequests or donations, made for the pro-
motion of specific objects and purposes, or accompanied
with special trusts and conditions. Let the Corporation,
then, hereafter lay all their orders or votes before the
Overseers for their concurrence, by which salaries of
officers of instruction and government shall be estab-
lished or modified, or special allowances shall be made
to them, or by which the bequests or donations above
specified shall by said Corporation be accepted. By this
course the President and Fellows will guard their body
and the university against assault or danger, will give
entire satisfaction to the Overseers, remove all grounds
79
of complaint, do much good to the college, and in no
way subject themselves to any inconvenience or an-
noyance.
The result will be that perfect harmony and mu-
tual confidence will exist between the two Boards, and
their united power will be sure to be available in the
most effective way to oppose and resist all assaults on
the college, or on either of said Boards, from whatever
Quarter they may come.
13th. The attention of your Committee has just been
called to the following important passage in Mr. Quincy's
History of the university, viz.:-
“On the 4th of January, 1821” (in the convention
for revising the constitution of Massachusetts), “the
Hon. Daniel Webster as chairman of a committee made
a report to the convention, in which, after a short re-
capitulation of important points in the history of the
college, they declare their opinion concerning the ex-
isting constitution of that seminary, - that it is a well-
contrived and useful form of government. The Corpo-
ration consists of but few persons; they can, therefore,
assemble frequently and with facility, for the transaction
of business, either regular or occasional. The Board of
Overseers, having a negative on the MORE IMPORTANT ACTs
OF THE CORPORATION, is a large and popular body, a great
majority of its members being such as are annually
elected to places in the highest trust in the govern-
ment by the people themselves. A MORE EFFECTUAL CON-
TROL OVER THE PROCEEDINGS OF THE CORPORATION CANNOT BE
DESTRED. Indeed, if a new government were now to be
framed for a university, independent of all considera-
tions of existing rights and privileges, the committee do
not know that a better system could probably be de-
vised.”
80
This committee consisted of the Hon. Daniel Webster,
Hon. Samuel S. Wilde, Hon. Samuel Dana, Hon. H. A. S.
Dearborn, and Allen Tillinghast, Esq. In their report,
made to the constitutional convention of 1820, it is de-
clared that “the OVERSEERS HAVE A NEGATIVE ON THE MORE
IMPORTANT ACTs of the Corporation,” and that “A MORE
EFFECTUAL CONTROL OVER THE PROCEEDINGS OF THE CORPORA-
TION CANNOT BE DESIRED.” Now the appointing of officers
of instruction and government in the college, the estab-
lishing of their salaries, and the removal of such func-
tionaries from office by the Corporation in pursuance of
the provisions of the third clause of the charter, must
certainly be considered as amongst “the MORE IMPORTANT.
ACTS OF THE CORPORATION.” They are in fact acts of the
very highest importance.
This opinion, declared concerning the charter and
constitution of the college by two such learned and dis-
criminating lawyers as Mr. Webster and Mr. Justice
Wilde, in concurrence with other able and distinguished
men on the committee, is entitled to the highest possible
respect and confidence, and must be regarded as decisive
in relation to the questions considered in this report, and
as settling the same in accordance with the judgment
and conclusions expressed by your Committee.
The chairman of your Committee having adopted the
opinion of the late Hon. Samuel Hoar, his associate on
a former committee, that the full and entire right of
approval or disapproval as to appointments, salaries,
removals and orders and by-laws, was secured to the
Board of Overseers by the proviso to the third clause,
and that there was no necessity whatever of resorting
to any other part of the charter, or to the appendix,
for such right, expressed to his colleagues on the com-
81
mittee at an early day his desire to rest on that proviso
alone. The chairman assigned as reasons for this
course, first, because that proviso gave to the Overseers
full power in the premises, and, secondly, because of the
understanding he had with Mr. Hoar not to have
recourse to the appendix of the college charter, and
he did not, after the decease of his excellent friend,
feel at liberty to pursue a different course from that
which he adopted in concert with him in his lifetime.
The other two members of the Committee, while con-
curring with the chairman in the opinion that the pro-
viso to the third clause is ample for the purpose of con-
ferring on the Overseers the right of approval or disap-
proval as afºresaid, reserve to themselves the right to
insist, if they think proper, in any discussion that may
be had, that the same right of approval or disapproval
or revision by the Overseers is conferred or confirmed
by the fifth clause of the charter or by the second clause
of the appendix.
Your Committee will now proceed to state that by
virtue of the instructions of the Board, contained in the
order by which they were appointed, they have pro-
cured an accurate and perfect copy of the original char-
ter of Harvard College, which copy, hereto annexed, they
present to the Overseers, and they have compared the
same with what purports to be a copy of said charter,
which is entered in the first volume of the “separate
records” of the Overseers, and certified to be a true
copy by Henry Flynt, secretary; and the Committee
find an important discrepancy between said true copy
of the original, just procured as aforesaid, and said
copy contained in the records of the Overseers, viz., the
insertion of the two words “laws and” in said copy con-
| 1
82
tained in the Overseers' records, which are not found in
the original charter.
These two words are inserted in the proviso to the
third clause of the charter, by means of which this pro-
viso in said copy contained in the Overseers' records
reads as follows, viz.: “provided the said laws and orders
be allowed by the Overseers,” instead of being in the
words of the original charter, viz.: “provided the said
ORDERS be allowed by the Overseers.”
Your Committee have extended their report very far
beyond the limits they at first expected or intended.
They are aware that they may be charged with pro-
lixity and repetition. But they have preferred to be
too long rather than too short, to use more words than
were necessary rather than too few, and they have
chosen to indulge in repetition rather than to incur
any danger of having some statement fail of being
fully understood at the moment by reason of the read-
er's not finding with facility, what had been stated in
some former part of the report. Your Committee have
not studied order. They have stated facts and sug-
gestions as they occurred to them, and have not under-
taken afterwards to reduce the same to a more orderly
arrangement. Such as it is, they present their report
to the Board, with the hope that it will enable them to
understand and determine the true meaning and con-
struction of an important portion of the college charter.
Your Committee conclude with recommending the adop-
tion of the subjoined order. -
All which is respectfully submitted.
GEORGE MOREY,
J. G. ABBOTT,
J. M. MANNING.
A PP E N D L X.
Acts and doings of the “Governors of Harvard College’’ prior to the
date of the charter of 1650, and of “the Corporation ” afterwards,
viz.: —
“At the meeting of the Governors of Harvard College held in the
college-hall this 27th of 10th, 1643.”
“It is ordered that —
“1. The accounts of Mr. Harvard’s gift are to be finished, and Mr.
Pelham, Mr. Nowell, Mr. Hibbins, Mr. Syms, Mr. Wilson, are chosen
to finish it, &c. &c.
“2. Mr. Pelham is elected Treasurer of the college by the joint vote
of the Governors of the college.”
“It is ordered that two Bachelors shall be chosen for the help of
the President to read to the Junior pupils, as the President shall see
fit, and be allowed out of the college Treasury 4£ per annum to
each of them for their pains.”
JUNE 17, 1667.
Ordered by the Corporation, that the Bachelors shall have the fore-
noon on the commencement day for the performance of their work, and
that for the future it shall be looked upon as their due ordinarily,
except there do appear to the President and Fellows any just reason,
moving them to order it otherwise.
OCTOBER 4, 1669.
Ordered by the Corporation, that Mr. Thomas Danforth be desired,
and upon his consent engaged, to pay unto the Fellows the money due
by Charlestown Ferry, &c. *
It is also ordered that three pounds be allowed by the steward to
Goodman Taylor towards the discharge of the charges of his son's
commencement; and that this money be repaid, either by the money
coming from the eastward (if it be allowable), or to be allowed out
84.
of Mr. Webb's gift, abating fifteen shillings apiece, from the money
aforesaid, distributed among four persons.
It is further ordered that the revenues of Mr. Webb's gift be dis-
tributed for the following year as it was the last year, viz.: that there
be allowed to Sir Shephard four pounds; to Higginson three pounds;
to Corlett three pounds; to Adams three pounds, and this money is
to be allowed to them by the steward, unless some part thereof be
abated, as is provided in the foregoing order.
Item — It is ordered that Sewall be made a scholar of the House;
and succeed Sir Epes (provided that he leave the college in the win-
ter) in his scholarship.
FEBRUARY 12, 1671.
Ordered by the Corporation that Sir Thatcher and Alcocke continue
scholars of the House; and that Pyke and Allen be substituted in the
other two vacant places.
Item —That the three pounds of Mr. Webb's gift, allowed to Sir Cor-
lett for the year current, be given to Hawley, and that only one quarter's
pay be allowed to Sir Corlett by reason of his discontinuance.
AT A CoRPORATION MEETING, MAY 27, 1673.
Mr. Thomas Graves being spoken with concerning his coming to be
employed as fellow of the college, freely declared to the Corporation that
he (upon consideration of the passed) was not free to accept any such
employment.
Ordered, That Na. Gookin be declared successor unto Jere. Shephard,
for the enjoying four pounds per annum of Mr. Webb's gift from the time
of Mr. Shephard’s leaving it, and during the pleasure of the Corporation.
MARCH 1, 1674.
Ordered by the Corporation that Sir Sewall be from henceforth the
keeper of the college Library.
APRIL 15, 1674.
Ordered, That Mr. Gookin and Sir Sewall, fellows of the college,
have half a year's salary of their proportion paid them of the Piscataway
gift, now in the Treasurer's hands, according as the Honorable Over-
seers have directed the same to be proportioned.
AT A MEETING OF THE CoRPORATION, JANUARY 1, 1675.
Ordered, That Minot, Allen, Cheever, Danforth be scholars of the
House for the year ensuing; and that Allen receive five pounds due
of the scholarship and to be presently paid.
ATA MEETING of THE CoRPORATION AT CAMBRIDGE, SEPT. 2, 1675.
Ordered by the Corporation, That Thomas Cheever shall be monitor.
DECEMBER 22, 1675.
Ordered by the Corporation, That Wadsworth be scholar of the
House.
MARCH 22, 1682–3.
Ordered, That Eliot, Whiting, Mills, Phillips shall have each of them
for the next year 5 pounds given to them out of the college revenue.
This vote to begin from the 26th of this instant March.
T)ECEMBER 5, 1683.
Voted, That Walton be chosen Butler.
Ordered, That the scholars of the house for the year ensuing shall
be Sir Mitchell, Sir Danforth, Dennison, Saltonstall, Dudley and Cottom.
Ordered, That upon consideration of the great pains, which the present
fellows resident in the college, viz. Mr. Andrew and Mr. Cotton, have
taken, their allowances for the year past, beginning at the commencement,
1682, shall be 45 pounds in money to each of them, and that what the
income from the Ferry at Charlestown and Mr. Glover's gift does come
short of this sum, shall be made up out of the money received in
England by the Hon. Treasurer of the college, Major Richards. •
ATA MEETING OF THE CORPORATION IN CAMBRIDGE, MARCH 17, 1683–4.
Voted, That Eliot, Whiting, Mills and Philips shall have each of them
five pounds in money given to them.
This vote to begin from the 26th of March, 1684.
APRIL 20, 1691.
It is ordered, That the resident Fellows, viz. Mr. John Leverett and
Mr. William Brattle, be allowed as their salary for this present year,
five and twenty pounds each, besides what they have received, and what
they are yet to receive from Charlestown Ferry.
ATA CoRPORATION MEETING AT HARVARD CollBGE, Aug. 6, 1694.
Ordered, 1st, That Sir Flint, Willard, Smith, Moody and Willard,
Junior, be scholars of the House for this present year.
86
2d. That Mr. Pemberton be library keeper this year, and his allowance
five pounds.
3d. That the salary of the resident Fellows be for the present year
50 pounds between them, to be paid by the Treasurer, besides what
they shall receive from Charlestown Ferry.
MARCH 4, 1694–5.
Ordered, That the Treasurer pay unto the Rev. President or his
order, what was ordered unto him of the interest money due from Mr.
Edward Pelham anno 1686.
THE CHARTER OF HARVARD COLLEGE
HEREAS THROUGH THE good hand of God
many well deuoted persons haue beene and dayly
are mooued and stirred vp to giue and bestowe sundry
guiftes legacies land" and Revennewes for the aduance-
ment of all good literature artes and Sciences in
Haruard Colledge in Cambridge in the County of Mid-
dlesex and to the maintenance of the Praesident and
fellowes and for all accommodać6ns of Building” and .
all other necessary prouisions that may conduce to the
education of the English & Indian Youth of this Coun-
try in knowledge and godlines. IT IS therefore ordered
and enacted by this Court and the aucthority thereof
That for the furthering of so good a worke and for the
purposes aforesaid from henceforth that the said Col-
ledge in Cambridge in Middlesex in New England shalbe
a Corporation Consisting of seauen persons (to wit) a
President fiue fellowes and a Treasurer or Burser
and that Henry Dunster shall be the first President
Samuell Mather Samuell Danford maisters of Arte
Jonathan Michell Comfort Starre and Samuell Eaton
Batchelers of Arte shall be the fiue fellowes and
Thomas Danford to be present Treasurer, all of them
being Inhabitant” in the Bay, and shall be the first
Seuen persons of which the said Corporation shall con-
sist And that the said seuen persons or the greater
number of them procuring the presence of the Ouer-
88
seers of of the Colledge and by their counsell and
consent shall haue power and are heereby authorised
at any tyme or tymes to elect a new President ffel-
lowes or Treasurer so oft and from tyme to tyme as
any of the said person or persons shall dye or be re-
moued. Which said President and fellowes for the tyme
being shall for euer heereafter in name and fact be one
body politique and Corporate in Lawe to all intent”
and purposes, and shall haue perpetuall succession And
shall be called by the name of President and fellowes of
Haruard Colledge And shall from tyme to tyme be
eligible as afforesaid And by that name they and their
successors shall and may purchase and acquire to
themselues or take and receaue vppon free guift and
donation any Landº Tenement” or Hereditament”
within this Jurisdicóón of the Massatusettº not ex-
ceeding the value of fille hundred pound” per annum
and any good” and sommes of money whatsoeuer to
the vse and behoofe of the said President fellowes and
Schollers of the said Colledge and also may sue and
plead or be sued and impleaded by the name aforesaid
in all Courtes and places of Judicature within the
Jurisdicóón aforesaid and that the said President with
any three of the fellowes shall haue power and are
heereby Aucthorized when they shall thinck fitt to
make and appoint a Common Seale for the vse of the
said Corporation. And the President & fellowes or
the maior part of them from tyme to tyme may meete
and choose such Officers & Servant” for the Colledge
and make such allowance to them and them alsoe
to remoue and after death or remoueall to choose such
others and to make from tyme to tyme such orders
& Bylawes for the better ordering & carying on
89
the worke of the Colledge as they shall thinck fitt,
Prouided the said orders be allowed by the Ouerseers.
And also that the President and fellowes or maior
parte of them with the Treasurer shall haue power to
make conclusiue bargaines for Landes & Tenement” to
be purchased by the said Corporation for valuable con-
siderać6. AND for the better ordering of the Gouer-
ment of the said Colledge and Corporation Be it
Enacted by the Aucthoritie aforesaid That the Presi-
dent and three more of the fellowes shall and may
from tyme to tyme vppon due warnige or notice giuen
by the President to the rest holde a meeting for the
debating and concluding of affaires concerning the
proffitt" and Reuennues of any Landes, and disposing
of their Good". Prouided that all the said disposing"
be according to the will of the Donors. And for di-
rection in all emergent occasions execution of all
orders and Bylawes and for the procuring of a Generall
meeting of all the Ouerseers & societie in great &
difficult cases, and in cases of nonagreement, In all
which cases aforesaid the conclusion shall be made by
the maior parte y” said President hauing a casting voice
the Overseers consenting therevnto, And that all the
aforesaid transacóöns shall tend to & for the vse and
behoofe of the President fellowes Schollers & Officers
of the said Colledge and for all accomodaćons of build-
ing’ bookes and all other necessary prouisions & furni-
tures as may be for the aduancement & education of
youth in all manner of good literature Artes and
Sciences. AND further be it ordered by this Court and
the Aucthority thereof That all the Landes Tenement"
or hereditament” howses or Revennues within this
Jurisdiccon to the aforesaid President or Colledge ap-
12
90
pertayning not exceeding the value of fiue hundred
pound” per annum shall from henceforth be freed from
all ciuill impositions taxes & rates all good” to the
said corporation or to any Schollers thereof appertayn-
ing shall be exempt from all manner of tolle Customes
& excise whatsoeuer. And that the said President fel-
lowes & Schollers together with the servant" & other
necessarie Officers to the said President or College ap-
pertayning not exceeding tenne, viz three to the Pres-
ident and seuen to the Colledge belonging shall be
exempted from all personall ciuill offices militarie
exercises or seruices watching” and warding". and such
of their estates not exceeding one hundred poundes a
man shall be free from all Country taxes or rates what-
soeuer and none others. IN WITNES whereof The
Court hath caused the Seale of the Colonie to be heere-
wnto affixed. Dated the One & thirtieth day of the
Third moneth called May, Anno 1650.
Tho: Dudley
Gov".

9 |
IN BoARD OF OVERSEERS OF HARVARD CollEGE,
February 20, 1862.
Ordered, That the secretary of the Overseers be instructed and di-
rected to cause the correct and perfect copy of the charter of Harvard
College, this day laid before this Board by their committee, to be in-
serted in the records of the Overseers; and that said secretary be also
instructed to make in the margin of the page in the present record
of what purports to be a copy of the charter in the first volume of
the Overseers’ records, a reference to the volume and page where said
correct and perfect copy of the charter shall be inserted; and said
committee are charged with the duty of seeing that the requirements
of this order are fully complied with.
`--—

e2422, - —
A R G UMENT
|
TUTOR NICHOLAS SEVER,
|
READ BEFORE THE Lt.-GOVERNOR AND COUNCIL, 23D AUGT., 1723,
IN SUPPORT OF HIs CLAIM TO A SEAT IN
THE CORPORATION OF HARVARD COLLEGE :
W I T H A W I N T R O DU C T I O N
BY
GEORGE DEXTER.
º,
CA. M. B. R. I D G E :
PRESS OF JOHN WILSON AND SON.
1878.
^ ARGUMENT
OF
TUTOR NICHOLAS SEVER,
READ BEFORE THE Lt.-Gover NOR AND COUNCIL, 23D AUGT., 1723,
IN SUPPORT OF HIS CLAIM TO A SEAT IN
THE CORPORATION OF HARVARD COLLEGE :
WITH A N IN T R O DU C T I O N
BY
GEORGE DEXTER.
C. A. M. B. R.I.D G E :
PRESS OF JOHN WILSON AND SON.
1878.
JFifty copies printed from the Proceedings of the
Massachusetts Historical Society.
ARGUMENT OF TUTOR NICHOLAS SEVER.
AT a stated meeting of the Massachusetts Historical
Society, held Feb. 14, 1878, Mr. George Dexter com-
municated the argument of Tutor Sever before the
Council of Massachusetts, in the year 1723, advocating
the right of the instructors in Harvard College to a
place in the Corporation, with the following introduc-
tion : —
Twice in the history of Harvard College, with an interval
of a century between the two attempts, the instructors resi-
dent in Cambridge have claimed the right to membership in
the Corporation of the College. The literature of the second
attempt to secure this right, in 1825, is well preserved and
easily accessible. The memorial of the Instructors, the argu-
ments of Professors Everett and Norton in its support, Mr.
Lowell's replies, indeed all the papers in the case, were printed
at the time, and are to be consulted in most of the libraries
of this neighborhood. The literature of the earlier attempt,
in 1721–23, has not been so well saved. President Quincy
gives a minute account of the controversy in the thirteenth
and fourteenth chapters of his History of the University.
The arguments on the side of the Corporation are generally
spread upon their records; but the reasons for the claim of
the tutors we have hitherto been forced to seek in conjec-
tures based on the Corporation’s answers to the claim, and in
occasional votes of the Overseers. The claimants' memorials,
4
and their arguments in their support, Mr. Quincy expressly
says have not been preserved.
The main facts of the story are briefly these: On the 23d
of June, 1721, two tutors, Nicholas Sever and William Wel-
steed sent a memorial to the Overseers, claiming that, as the
resident instructors of the College, they were entitled to seats
in the Corporation. They based the claim upon an inter-
pretation of the College charter of 1650. Their petition was
referred to a committee, who reported, but not until the 9th
of March of the next year, that the claim was a just one.
Meanwhile, the death of the Rev. Joseph Stevens created a
vacancy in the Corporation, which that body filled by the
election of the Rev. Joseph Sewall, 23d of January, 1722.
The Overseers postponed the consideration of that choice,
and no mention of it appears upon their records. At a subse-
quent meeting, when the committee on the tutors’ memorial
had reported, the Overseers voted that the vacancy in the
Corporation ought to be filled by the election of a resident
fellow. The Corporation at their next meeting, after some
saving resolves in reference to the election of Mr. Sewall,
made choice of Thomas Robie, a tutor who had not joined in
the memorial. This selection was not agreeable to the Over-
seers, who declined to confirm it, on the ground that the
memorial of Sever and Welsteed was still “depending.” The
controversy became very bitter. The term of Sever's tutor-
ship, as determined by the Corporation at his election (three
years), expired in April, 1722; and they declined to re-elect
him, and placed his classes under the care of another tutor.
An appeal was made to the Overseers; and they, at a meet-
ing on the 13th of June, declared that Mr. Sever was still a
Fellow of the House, notwithstanding the action of the Cor-
poration. At their next meeting, that body, “to prevent
further debates and contentions (which we look on as threat-
ening to the welfare of the College),” consented to allow Mr.
Sever to again act as tutor.
As a remedy for the difficulty, the Overseers presented a
memorial to the General Court for an enlargement of the
Corporation by the admission of the resident tutors. A com-
5
mittee, to whom the memorial was referred, reported that it
was unnecessary to enlarge the Corporation, and that it was
the intent of the College charter that the resident tutors
should be members of it. This report was adopted by the
General Court; but Governor Shute gave it only a conditional
approval, insisting that the actual members of the Corporation
(Messrs. Wadsworth, Colman, and Appleton), although non-
resident, should not be removed. The House of Representa-
tives urged the Governor to pass upon their vote absolutely
and without condition; but he refused, and the matter rested
here.
The controversy was not ended, however ; and the two
governing bodies of the College, the Corporation and the Over-
seers, continued to disagree. The details of the quarrel may
all be found stated at length in President Quincy's History,
and need not be repeated here.
In August, 1723, the House of Representatives again
adopted their vote of the preceding year, and sent it to the
Council for concurrence. That body, under the presidency
of the Lieutenant-Governor (Dummer), for Governor Shute
had sailed for England the previous January, granted the Cor-
poration a hearing in the matter. This hearing took place on
the 23d of August. From a MS. book of President Leverett's,
partly a private diary, but mainly minutes of Corporation meet-
ings, preserved with the Records of the College, I take this
“Mem. This 23d of August, 1723, the President and all
the members of the Corporation in being waited upon the
hearing before the Hon. Lt.-Gov. and Council, and Mr. Col.
man read in his place the representation of the Corporation,
and laid it down upon the board. After which Mr. Sever
read a long argument for the support of the petition he with
Mr. Welsteed had preferred to the Court, and laid it upon
the board. The President and all the members of the Cor-
poration except Mr. Flynt and Mr. Treasurer in their turns
speak, and offered their answers and remarks upon the argu-
ment and records offered by Mr. Sever, and then the Corpora-
tion, submitting the whole to their honors’ consideration, and
the event of all to the holy sovereign pleasure of God.
6
Agreed. That the representation to be entered in the Col-
lege Book of Records, and it is accordingly entered.” The
Council voted not to concur in the resolves of the House,
and the question was settled for a century. When it arose
again, the result was the same. It was settled, this time
probably for ever, against the claim of the resident instructors
by an unanimous vote of the Overseers.
I have said that the literature of the earlier struggle is not
well preserved. President Quincy prints in the Appendix to
his first volume (No. LVII.) the representation of the Cor-
poration referred to in President Leverett's memorandum.
The “long argument' of Mr. Sever is the MS. exhibited here
this morning. The hearing of the 23d of August, at which
these papers were read to the Council, was the final one in
the matter, and doubtless each side presented in full detail
its view of the question. If the Society see fit to find a place
in the Proceedings for Mr. Sever's argument, we shall have
in print all that is important to be saved for the understand-
ing of the tutors’ claim.*
I shall perhaps be pardoned a few words in regard to the
author of this MS. Nicholas Sever was the son of Caleb
Seaver (as the name was first spelled), of Roxbury, where he
was born on the 15th of April, 1680. He was graduated from
Harvard College with the class of 1701. He prepared him-
self for the sacred ministry, and preached for some months of
the year 1708 in Haverhill. For some unknown reason, he
declined to settle there, although a very liberal offer was made
him by the church. He was ordained over the church in
Dover, N. H., as successor to the Rev. John Pike, on the 11th
of April, 1711. He resigned in the spring of 1715, on account
of an almost total loss of voice, or (as another account says)
because an impediment in his speech made his pulpit ministra-
* In the first volume (p. 78) of the Ewer MSS., preserved in the library of
the N. E. Hist. Gen. Society, is a petition of Sever and Welsteed to the General
Court, dated 27th of June, 1723, and on the same sheet a memorandum of the
vote of the House of Representatives of the 7th of August. This paper was
doubtless prepared by Mr. Sever for use at the hearing before the Council.
7
tions painful to himself and unpleasant to his people. He was
chosen tutor of the College 9th of April, 1716, for three years,
and re-elected in 1719. On 13th of September, 1725, two
years after the controversy about the composition of the Cor-
poration, the election of Mr. Wadsworth to the Presidency
having made a vacancy in that body, Mr. Sever was chosen to
fill it. As Mr. Quincy says, “A seat which they would not
concede to a claim of right, they now voluntarily gave by
election.” He resigned in 1728, and removed to the town of
Kingston, then lately set off from Plymouth, where he married
a widow Little, and settled. He was a prominent man in his
town and county, and was Judge of the Court of Common
Pleas from 1731 to 1762. He died on the 7th of April, 1764,
at the age of eighty-four. His descendants have furnished
several graduates to the College, among them the late Col.
James Warren Sever, whose liberal bequest of $140,000 to
that institution is announced this year.”
It only remains for me to say that this MS. is the property
of Mr. Charles W. Sever of the University Bookstore in
Cambridge, the great-great-grandson of the writer, and that
the Society are indebted to his kindness for the privilege of
printing it.
May it please your Honor and the Honorable Board and the Rev-
erend the rest of the Overseers of the College to favor me with a few
words for the support of this memorial.
And I would observe that in the year 1650 the College was first
founded upon a charter, which it subsisted upon for twenty-two years,
till 1672; that in that year there was an additional grant of charter,
and the College subsisted upon them both for twelve years longer, till
1684; and about that time the old country charter was vacated, and the
College charter was supposed to fall of course with it.
Soon after that, the business of the College was committed to three
persons, under the characters of Rector and Tutors pro tempore, and
till a better settlement might be obtained, and there were some laws
* Mr. William B. Trask published in 1872 “The Sever Family,” from which
most of these facts are taken.
8
made for their direction in the business of the College which were suit-
able to that state of things.
Afterward there were several draughts of charters for the settlement
of the College, but neither of them perfected. In the year 1692, one
of them passed through the Legislature here, and was sent home for
the royal sanction, but, after some time, returned disallowed of by the
King. While it was in force, the Corporation made and published a
body of Latin laws, and by these laws the immediate government of
the College was committed to the President and Tutors, who were also
Fellows upon the foundation. The settlement of the College was again
attempted, but without effect.
And, without multiplying words, I proceed immediately to the settle-
ment of 1707, which the College is now upon. And, by an act of the
General Court, the College was then fixed upon the aforesaid old char-
ter of 1650, and the President and Fellows were directed to observe
the rules of the constitution by that charter, which act of settlement
of 1707 I pray may be read. So that now the College has no other
foundation to depend upon but the charter of 1650, and we can now
act upon no rules properly but those of that constitution, to be sure
upon none that are in a direct opposition to it.
And I must now go on and say something of the nature of the con-
stitution by that charter. And, in the first place, the Corporation
therein nominated consists of seven persons, viz., a president, five
fellows, and a treasurer, who were all resident at the College; and
provision was made that, upon the death or removal of any of the said
seven persons resident at the College, they that are left shall elect
others and complete their number. I say nothing of the business of
legislation in the College, or of the disposition of the revenues, because
all agree that these matters belong to the Corporation, and the difficulty
(if any there be) lies in the business of execution ; and, to bring the
matter to a point, the question is, who are by this charter to execute
the laws and govern the College And (with submission) there are a
few lines in the charter which must be thought to determine that mat-
ter beyond all doubt, and they are these, viz.: “And for the better
ordering of the government of the said College and Corporation, be it
enacted, by the authority aforesaid, that the President and three more
of the Fellows shall and may from time to time, upon due warning or
notice given by the President to the rest, hold a meeting for the debat-
ing and concluding of affairs touching the profits and revenues of any
lands, and disposing of their goods; provided, that all the said disposing
be according to the will of the donors, and for direction in all emergent
9
occasions, eacecution of all orders and by-laws.” Now, I think (with
great submission) no words can express a thing more plainly and fully
than this matter is here expressed, nor can any terms be used that are
stronger than these. It is expressly said that the President and Fel-
lows, or Corporation, shall meet upon all emergent occasions and for
the execution of all orders and by-laws. The note of universality is
here expressed, which makes the sense very strong. And, if the ex-
ecution of all orders and by-laws belongs to the Corporation, what
can be the business of the Fellows of the House and Tutors 2
There is, indeed, another clause of the charter which has been im-
proved against us, and that is it which empowers the Corporation to
choose other officers and servants; and it has been said that these Fel-
lows of the House and Tutors, which are now made use of to govern
the College, come in properly under this head of officers and among
the servants. But by officers and servants, then, for the College, we
must understand such as steward, butler, handicraftsmen, and menial
servants, which the College has continual occasion to make use of. And
it is impossible that under this head of officers and servants any should
be brought in to execute the laws and govern the College until that
other part of the charter which was but now mentioned be razed out of
it, which says that the Corporation shall execute all orders and by-
laws. These two parts of the charter are distinct, and stand at some
distance. I will set them together, and see how they will stand by one
another. The one, and that which is expressed, is this, that the Pres-
ident and Fellows or Corporation shall execute all orders and by-laws;
the other is that which empowers the Corporation to choose other
officers and servants, which they suppose (it is not expressed, but the
gentlemen of the Corporation suppose) may be vested with powers to
execute the orders and by-laws of the College. Now, if the art of
man can reconcile these two propositions to any tolerable sense, – viz.,
first, that the Corporation shall execute all orders and by-laws; and,
secondly, that other officers and servants may execute the orders and
by-laws of the College, – we may then possibly be in an error. But to
say that other officers and servants may be empowered to execute the
orders and by-laws of the College, when the charter says expressly that
this business shall be done by the Corporation and none else, is to
attempt to reconcile a contradiction and make both the parts of it
true.
Moreover, the business of the College is a great trust which the
government has reposed in a corporation and their successors. Now,
if they may empower other officers and servants to execute the laws of
2
10
the College, by the same rule they may empower them also to make
laws, and to dispose of the revenues and do all the business of the Col-
lege; and by this means the design of the Government in committing
so great a charge to a Corporation and their successors might be entirely
defeated. -
And thus the charter empowers the Corporation to govern the Col-
lege without allowing them to substitute others in their room and
stead, and without making any provision for anybody else to do that
business. And no words can be found in the charter upon which an
inferior judicature in the College to that of the President and Fellows,
viz., consisting of President and Tutors, can be founded.
And on the 30th of April, 1655, a body of English laws º were made
and published by the Honorable and Reverend Overseers and Corpora-
tion. On March the 19th, a month before (when those laws must be
supposed to have been in fieri), there were present at a public meeting
four resident Fellows, and it appears that some of the Fellows were
Tutors by the form of their instalment (third paragraph); viz.,
“Omnes studentes qui tutelae tuæ committuntur, aut in posterium
Committendi sunt, ut promoveas in omni tam Divina quam humana
literatura pro suo cujusque captu, atque moribus homeste ac inculpate
Segerunt, Summa jure curabis.” So that some of the Fellows upon
their instalment had pupils committed to them, and others had not ;
Some of them were Tutors and others were not, just as there was occa-
sion. And at that time there were not thirty undergraduates in Col-
lege, so that there could not be tuition business for all the Fellows, and
there was no such character known in the College at that time as that
of a Tutor distinct from the Fellows.
Now that body of laws made upon this charter were exactly con-
formed to the tenor of the charter, only with this difference, that to the
end that the Corporation might not be obliged to have a meeting in
form upon every trivial occasion, provision was made that the President,
or a single Tutor, might manage a few small things separately, such as
giving leave to a student to go out of town, to receive and lodge a
stranger in the College, privately to admonish a person for a disorder
that was not made public, &c. And the Tutors — who were usually
two or three of the Senior Fellows — had a preference in the College to
the other Fellows that were not Tutors, having a power in some such
small things, as the President likewise had, to direct their pupils,
* A copy of these laws, in the Library of this Society, was printed, with an
introduction by Dr. Green, in the Proceedings of the February meeting, 1876.
11
which the other Fellows could not do. And the reason seems to be
very good; viz., because a Fellow that was a Tutor must be supposed
to have understood the temper and circumstances of his own pupils
who were every day with him better than one of the other Fellows.
And I remember very particularly there is one law which says that
leave shall be obtained by a student for going out of town, being pres-
ent at courts, elections, and such public solemnities, from the President
or his Tutor, or, in their absence, from two of the other Fellows; so
that the Tutors or Senior Fellows had a pre-eminence in the College
to the other Fellows, being allowed some powers which they had not.
And thus much for the management of a few small things in the Col-
lege by the President, or a single Tutor or Senior Fellow separately.
But, in matters of any weight and importance, it is the constant tenor
of the laws that they shall be determined in Corporation, and that all
decisions shall be made by a majority of President and Fellows.
And, besides all this, the form of instalment of Fellows which has
always been made use of in the College, when any has (for there is
no other), is exactly of a piece with the charter and laws, and obliges
the Fellows to govern the College. It has, indeed, of late been very
much disused, I believe for these reasons and no other : first, because it
gives the Fellows such powers in the College as the residents are not
allowed to have ; and, secondly, because it disallows of the non-residence
of Fellows, which is now so much in practice. By it the Fellows’
powers are limited to the time of their residence in the College:
“dum hic commoraberis,” and “dum hic egeris,” are the words of the
form.
And, indeed, as the case now stands, this form cannot properly
be applied either to residents or non-residents: not to non-residents,
because the powers granted by it are limited to residence in the Col-
lege; not to residents, because but a small part of that power which
it gives the Fellows is allowed to them, and it is, therefore, wholly laid
aside.
Now since the charter, laws, form of instalment of Fellows, all
agree in this point, that the President and Fellows or Corporation shall
govern the College, and for that end suppose their residence in it, it
must needs be so, and cannot possibly be otherwise.
And nothing (with submission) can be more clear and evident than
that this was the constitution of the college government by the charter
and laws, and that it was a fundamental principle in the charter, if any
thing was so, that the College should be governed nextly and immedi-
ately by the Corporation, and under the countenance and with the
12
approbation of the Honorable and Reverend Overseers in all great
and difficult cases. So that what we aim at is not to break up and
overthrow an ancient constitution, as has been suggested, but to recover
a broken constitution, which the College has for some years been
groaning and bleeding under, to its ancient, primitive, most perfect, and
healthful state.
It has been objected that the Latin Laws” put the immediate gov-
ernment of the College into the hands of the President and Tutors,
and argued that therefore the President and Tutors have by those laws
a sufficiency of power in the business of the College.
And, at the first view, this seemed to me to have a greater weight
against us than any thing that I had met with upon the head, and I
therefore think myself obliged to be something particular in giving an
2.IlSW6'I’.
And, in the first place, we will allow the argument all the force and
advantage which it has on that side, and then we will endeavor to
answer it. -
And we do allow that by those laws several parts of the business of
the College are put into the hands of the President or a Tutor; and,
if it be desired, we will allow further that the whole immediate govern-
ment of the College was committed to the President and Tutors, for
so it was.
But then, for answer, Who were those Tutors, and what were their
characters in the College 2 Were they only titular and upon no foun-
dation, as we are 2 No, by no means. Mr. Leverett, the present
President, and Mr. Brattle, were the men, and they were Fellows, too,
upon the foundation ; and their names are now to be seen as such in
the charter of 1692, which the College was then upon ; and nothing
more can therefore be argued from thence but that the immediate
government of the College was by those laws committed to the Pres-
ident and resident Fellows. And I suppose the only reason of so many
non-resident Fellows as there were under that charter was that that
charter had no reference to the Honorable and Reverend Overseers, 2.S
this has, or to any power of visitation abroad whatsoever, for which
reason (by the way) I suppose the charter was disallowed of by the
King.
Now, the Corporation having by that charter all the powers of the
* These “Latin Laws” are probably those printed by Cotton Mather in the
“Magnalia '' (Book IV. pp. 132–134), and thence transferred by Mr. Peirce to
the Appendix of his “History of Harvard University.”
13
College (which was so great an interest) committed to them without
having them accountable to anybody for any of their managements, it
was thought reasonable and necessary that it should consist of a con-
siderable number, and that there should be many non-resident Fellows
and persons of very conspicuous character in the country, that might
be a sufficient guard upon the College abroad, and prevent any mal-
administration in the business of it, as well as a sufficient number of
resident Fellows to carry on the business of the College within.
And now I think the College is at present very happy, in that it has so
sufficient a guard and so strong a power of visitation abroad as this, con-
sisting of your Honor and the Honorable Board and the Reverend the
rest of the Overseers of the College; and I believe no man can question
the strength and sufficiency of this great and learned body for a guard
upon the College abroad; and, if that charter had had the same refer-
ence to this your learned and honorable body which this has, I believe
nobody had thought of one non-resident Fellow, and there was then
no such character known in the College as that of a Tutor distinct from
a Fellow. -
Now, to argue that because then the government of the College was
put into the hands of a President and Tutors who were also Fellows
upon a foundation, that therefore now it may be put into the hands of
a President and Tutors who are not Fellows, and who are upon no
foundation, is (with great submission) a strain in arguing which is
beyond all reason in the world, and which can be admitted of by no
DOlall.
But, for argument's sake, I will go one step further, and suppose the
utmost that can be supposed here in favor to this objection and the argu-
ment upon it. And that is, that although when that body of laws was
made the gentlemen who were then Tutors, and referred to in them,
were Fellows also, and upon a foundation, yet possibly it might be
designed to have provision made that some time afterward the College
might be governed by a President and Tutors who were not Fel-
lows, and who were upon no foundation, and that the charter which
they were upon would admit of such a state of things: this is the utmost
that can be supposed in favor to the objection and argument upon it.
And now, for answer, I pray it may be considered when those laws
were made, and upon what establishment. They were made and
published in 1692, and upon a charter which, a little before that, was
granted by this government and sent home for the royal approbation, and
some time after (as I observed before) returned disallowed of by the
King. And there was no other settlement of the College till 1707,
14
when it was by the government fixed upon the first charter of 1650
(as was said), on which it now stands. And now in this charter it is
expressly provided that the Corporation of seven, and none else, shall
govern the College; and if, upon this settlement of 1707, the govern-
ors of the College had designed that the House should be governed by
that body of latin laws which were made upon a former charter
(which might be proper, for, mutatis mutandis, they are very good
ones), I think (with great submission) their first business had been to
engraft that body of latin laws upon the stock of the charter of 1650,
which the College was now fixed upon. But in order thereunto these
laws must in some measure be altered and made to square with the
charter, and how can it possibly be otherwise? For here is a direct
opposition between the charter and them. The charter says that the
College shall be governed by the Corporation, and none else, and these
laws (taken in this sense, it is not the genuine sense of them, but taken
in this sense) say that it may be governed by other persons; viz., by a
President, and Tutors who are not of the Corporation. Now, either the
charter must be conformed to those laws, or else those laws must be
conformed to the charter. And which of these two can be thought
most reasonable : that the charter should be brought to those laws,
which were made under another and a different establishment, or else
that those laws should be brought to the charter, which the College
is now settled upon by the government P And anybody may, I think,
easily answer the question. And surely all laws that are introduced
upon this charter must be conformed to the charter. The charter
must be the measure and standard of all laws to be received and
practised upon while it is in force. So that if another charter and
establishment did admit of such a state of things, and that the College
might be governed by a President, and Tutors who were not Fellows,
most certainly this charter does not. And the laws of a former estab-
lishment cannot be brought into use here any further than as they are
made to square with the present establishment, or any other wise than
as they are understood in a sense that is agreeable with it. And this
I have supposed only for argument's sake, and that the objection and
argument upon it may be allowed all the force and advantage that can
be desired, and not that there was any such character known in the
College when these Latin Laws were made as that of a Tutor distinct
from a Fellow, or had ever been heard of in the College at any time
before, when it pretended to be upon a charter. Nor can I believe
that it was designed that there should be such a state of things in the
College at any time afterward, because I have made a very strict in-
15
quiry, and cannot find that there ever was any such state of things in
any College.
And upon the whole, the matter being weighed, I do not find that
there is any material difference between the old english laws and the
new latin ones. They both agree in this, that small things may be
managed by the President, or a single Tutor separately ; and some-
times they both say by the President and a Tutor; and by Tutors in
both are understood such as are Fellows too, upon a foundation. And
in both it is provided that matters of greater weight shall be decided
in Corporation; though under this head the English laws are some-
thing more express and particular than the latin ones are. And this
is the only difference that I can find between them, which I think is
not very material. And they both fully enough agree in this point,
that the College shall be governed by the President and Fellows, which
is the point in controversy, and thus (with submission) the objection
must fall, and those latin laws cannot support anybody here in the
business of the College in a direct opposition to the charter. And, as
we use those latin laws, by Tutors we must understand such as are
Fellows also, as they were understood when the laws were made.
It has been again objected that, when the College shall increase to a
great number of students, the Corporation of seven will not be sufficient
for the business of it; that therefore it will be necessary to introduce
persons under this head of officers and servants to manage the business
of the College.
But, for answer, it must be best and most safe to see to it, and be cer-
tain of it in the first place that such a power for the College may be
made out and defended upon the charter before it be asserted and
practised upon. I have as great a regard for the College as any man,
and would willingly understand the charter as much in favor to it as
it will bear; but to strain a thing of this nature beyond the natural and
genuine sense of it, and to force such an interpretation, is (with sub-
mission) the most direct step that can be taken to loose all. This is,
indeed, a fine, easy, short way of providing for the service of a College
in its advanced state, if it be but a safe one ; but for the Fellows to
suppose that they may quit the business of the College themselves, and
under the head of officers and Servants substitute others to do it, and
as many as they please, an indefinite number, is to pretend to such a
power as I believe was never granted to any College under the British
Dominion. And if the College should assert such a power upon the
charter, and practise upon it, it must needs (I am afraid) endanger the
charter; though this is a matter of law, which before so many gentle-
16
men as I see here present who are masters * of the law, and know well
how that matter is, I will venture only to mention to be thought on
and resolved by them. And surely it is worthy of consideration, and
if it would endanger the charter, though I hope nobody owes the Col-
lege so much ill-will, or would do us so ill an office as to pursue the
matter in the law, yet it will not consist with common prudence in
other affairs to give an opportunity. -
But to come a little nigher to the matter. If, under the head of
officers and servants, the Corporation could substitute others for the
business of the College, yet as the Corporation is limited to seven,
even so, as it happens, those officers and servants for the College have
exactly the same limitation. If the charter be read through, it appears
that there can be but ten in all, viz., three for the service of the Presi-
dent, and seven for the service of the College; so that, allowing this
objection and argument in its utmost extent, while the Corporation is
non-resident, there is not one inch gained for the College, but, if I had
time, I am sure it might easily be made to appear that the College
loses very much. This is ad hominem. -
But the true answer (with great submission) to this objection I take
to be this, that if in a course of time the number of seven, which the
Corporation consists of, shall be found not sufficient for the business of
the College in its advanced state, application must then be made to
the same power that made the first grant of charter for an additional
grant, and that such a number of Fellows may be added as the business
of the College shall then call for, and as the revenue of it shall be
sufficient for the support of. And this (with submission) is the com-
mon method in the University, and the only regular and effectual
method that can be taken for the service of a college in its advanced
state. And this method has already been taken in this College.
Witness the charter of 1672, which made out some further powers for
the College than it did possess by the charter of 1650. And this
method may and must be taken again, when there is occasion for it; but
at present there is none. And for the Fellows of a College abroad
under the head of officers and servants to introduce another order of
men to govern the College is (with great submission) a method un-
heard of in any College until now, and cannot be defended by the
charter. And thus this objection is fully answered. .
And now to suppose that the business of a College may be carried
* Especially the Honorable Superior Judges.
17
on as effectually and well by persons that are upon no foundation as
upon one is to argue against the sense of mankind and the experience
of all the later ages of the world. For all Colleges everywhere are
founded upon charters, and the business of them is committed into the
hands of an head, under the character of a President, or Rector, Princi-
pal, or Provost, Master, or Warden, and with a certain number of
Fellows, resident upon a foundation; and it is not supposed that this
business can otherwise be carried on to good effect.
I will illustrate this matter, may it please your Honor, by a simile, –
an easy and familiar simile. Suppose for the purpose in any other
affairs, civil or military, a person should receive a character and title,
and engage in any such business without a commission for it, — how odd
a figure must such a person make How impertinent and despicable
must he appear to the world, and more properly an object of derision
than of regard And to be sure [he] could accomplish nothing, could
do nothing to effect. *
Now, may it please your Honor, this is exactly our case at the Col-
lege. For the charter we look upon as something of the nature of a
commission for the College; and such as are not upon that foundation,
either as President or Fellows, are left out of the commission. So
that this is exactly our case, and we cannot help ourselves unless by
resigning this business, and that would be no remedy for the College.
For my own part, if I had thought it would, I would silently have done
it long ago. But your Honor, and this Honorable Board, can with a
word, speaking, give relief both to the College and to us. And it can-
not be supposed that under these circumstances we should be able to
carry on the business of the College to good effect. For indeed the
charter, which should be our support and direction in all the affairs
and business of the College, proves our constant mortification.
I remember very well that some years since the non-residence of the
President was complained of as greatly detrimental to the College,
although he usually visited the College once a fortnight or oftener, and
performed suitable exercises, both scholastical and theological. And
surely the non-residence of the Fellows cannot but be hurtful to the Col-
lege also, who do not usually meet here more than twice or thrice a
year, and when they do come (it being so seldom) cannot but come
very much unacquainted with the affairs and business of the College.
When they have been here, I suppose they have at all times truly
aimed at the good of the College; but their unacquaintedness with the
affairs of it has, I believe, been very hurtful.
I have the greatest esteem and veneration for the non-resident Fel-
- ----- * — ----—- -
3 ~
18
lows of the College, for their superior learning and piety; and I think
myself unhappy in that it falls to my lot to express these sentiments
upon this occasion, which I find are different from theirs, and nothing
would have induced me to it but an apprehension of the necessity of it
for the service of the College. But so long as the College has every
Way so sufficient a guard abroad to prevent any mal-administration in
the business of it (and I believe scarce any College has a more effectual
one), and so long as by non-residence the resident Fellows are crowded
off from the foundation and divested of the powers of the charter, which
is the case here, so long I say it is impossible (I speak it with the low-
est submission) that the non-residence of Fellows should answer any
other end in the College but to cramp and depress the characters of
the resident ones, and render them insignificant and useless in the busi-
ness of the College, unless it be to weaken the authority of the Over-
seers too, the non-residents always having been chosen out of their
number. By this means, indeed, the government of the College is be-
come strong abroad, but it is left feeble and defenceless at home.
And on the part of the resident Fellows, by these several steps, it
becomes so. In the first place, their salaries are brought down, modestly
speaking, to one half the value of what they were above twenty years
ago. So long ago, I find the Fellows had each of them fifty pounds
per annum from Charlestown ferry and the College Treasury, and
their pupil money, which by computation for many years about that
time was (one year with another) fü0 per annum, so that they were
allowed £106 per annum each for many years together. Whereas
now the first salary is £90 per annum, and so they fall by tens down as
low as £50, including pupil money. And, if the difference of money be
considered, I am within bounds in saying that the Fellows’ salaries
now are but half the value of what they were so long ago, and they
are now much straitened in their subsistence and circumstances of
living. The reason that has been given for it is that the President is
resident now, which he was not then ; but, so long as Mr. President is
supported by the country, and not by the College, this can be no reason
for the difference made, and the college estate is sufficient to allow all
the Fellows as good a subsistence now as they ever had. I would not
be understood to suppose that, if the Corporation were resident, they
would have it in their own power to make themselves allowances. I
find by the Overseers' books that this matter was under their direction
for twenty years after the charter was granted; and even the common
exhibitions of the college money, by the charter, ought not to be made
without the approbation and consent of the Honorable and Reverend
19
Overseers. Then again, by being left out of the Corporation, the resi-
dent Fellows are stripped of the powers of the charter. Then a tri-
ennial act is made, limiting the elections of resident Fellows to three
years, which was never heard of in any College, all those elections in
the University being in perpetuum. And this law is practised upon,
although never approved of by the Honorable and Reverend Overseers,
according to the directions of the charter. Then of late, when the Cor-
poration do meet, they commonly leave a committee behind them, if there
be any thing of importance to be done; and by these several steps and
degrees the resident Fellows’ characters have been depressed in the
College, and they are made to signify just nothing at all, and sure I
am that the most, if not all of them, are under great discouragements
in the business of the College, and it is indeed not without reason.
And, being sensible of the bad effects of this state of things in the
College, all the resident Fellows together, in the first place, made a
modest application to the Corporation. But, instead of a redress, they
dispensed to us a reproof. And when (despairing of relief from the
Corporation), we applied, as in duty bound, with great humility to
your Excellency and the Honorable and Reverend the rest of the
Overseers of the College as the dernier ressort of the College govern-
ment, it was said that the Overseers could not have a meeting without
a motion first made from the Corporation; and in several respects the
powers of the Honorable and Reverend Overseers, as I find by their
books they were exerted in the primitive and most perfect state of the
College, are denied, and this notwithstanding by the charter the
Honorable and Reverend Overseers are in all points a guard upon
the College. -
And thus, on the one side, the authority of your Honor and the Honor-
able and Reverend the rest of the Overseers is at least in some meas-
ure disowned in college affairs; and, on the other hand, the resident
Fellows are depressed, and made to signify just nothing in the College;
and the Corporation abroad do nothing themselves within the College.
And this is the true situation of college affairs; and what can be ex-
pected from this state of things 2 And if we, on our parts, had not
managed with the utmost caution, in my humble opinion, the College
had fallen into great disorders before now. -
And I cannot but mention one circumstance in this state of things,
which I look upon (with submission) as very inconsistent, and that is
that the Fellows are not only non-resident, but that they are chosen
out of the body of the Overseers, and thus matters are brought by
the Fellows from themselves in Corporation to themselves as Over-
20
seers for confirmation. They must seem (with great submission) to be
incompetent judges, among the Overseers, of matters that have passed
through their own hands in Corporation. And if any thing should be
amiss in the College at any time, and want a regulation by the Honor-
able and Reverend Overseers, by this means the proceeding must needs
be greatly clogged and made very difficult. Witness (to go no
further) the process upon this affair. With how great difficulty
has it been brought thus far, although nothing can be more clear and
evident than that our pretensions are just and well-grounded. And
this must needs be a standing inconvenience in the College, if not
remedied.
And this scheme for the college affairs, taken from the charter, must
(with submission) be allowed to be more regular and strong: viz.,
for the Corporation upon the spot to carry on the business of the Col-
lege within, while the Honorable and Reverend Overseers abroad do
(as they promise in the instalment of Fellows) strengthen and support
them with their authority in all their just administration; and, as the
charter provides, stand as a guard to prevent any mismanagement in
the business of the College within.
And, as the case now stands, all the graduates in College, both
Masters and Bachelors, observe that we have no interest in the Col-
lege; and, if they are in the pursuit of any favor in the College, they
are made to know that they have no dependence upon us for it, and that
it is not in our power to do them good or hurt. And thus some of the
strongest ties upon the human nature, to a regard to us, are taken off.
And this sense of things depends from them down among the under-
graduates, and our own pupils observe how our characters are depressed,
and that our interest is lost in the College, and that the extent of our
power goes no further than to amerce a disorderly person a sixpence
or a shilling, which goes into the quarter bill; and they do not value
it, and by this means it becomes more and more difficult for us to keep
them in a proper decorum. And if the resident Fellows had the best
accomplishments for the business of the College, if their characters are
not supported in the College, it will be impossible for them to do it, to
keep their pupils in a proper decorum; and if the good order, govern-
ment, and decorum of the College be lost, the loss sustained will prove
very great. I have thought several times within these two or three
years past that the College has been upon the very brink of great dis-
orders; and, when we in our places have done the best we could to
prevent them, we have seen and felt the feebleness of the college state.
And, when we are made to signify just nothing in the College, our
21
pupils observe it, and the natural tendency of it is to lessen that regard
to us which they ought to have, and which they must have, and which
if they have not, they had better be at home than at College under our
care. And our part as Fellows of the House in this new model of
the college affairs is but a mock business: it appears to be so, and has
been greatly detrimental to the College.
By indulgence, and upon sufferance, and not upon charter, we have
indeed, on our parts, been assisting in the business of the College, in
this method, for some years past, but I believe everybody acquainted
with the affairs of the College knows the difficulties the resident Fel-
lows have met with in this method, and how hurtful this state of things
has been in the College; and truly I believe everybody else that con-
siders the bottom we are upon may be very likely to guess as much.
This state of things has for some time been indulged in the College.
I pray that it may not pass into an establishment; for if it be as has
been said, and (with great submission) well proved from the charter
and laws, then to make an establishment upon this foot must be, by
one act, to dismiss the charter, and in the face of it to set up a constitu-
tion in the College that is in a direct opposition to it, and contrary to
the usages of all colleges. -
Elections of officers, and exhibitions of the college money, are, I
think, the two principal things now managed by the Corporation ; and
now, when Mr. Hollis's pious and generous donations come to be wholly
applied, there will be at least forty persons benefited this way, either by
small offices in the College, or else by the college money. Now I be-
lieve the non-resident gentlemen have not the least personal knowledge
of half so many of the students belonging to the College, or, to be sure,
of those that are any way suitable to receive these favors. Now the
donors of money to the College have very strictly obliged the dis-
posers of it to have a particular regard to the character and merit of
persons, and the College charter no less strictly obliges them to ob-
serve the directions of the donors of money to the College in all those
dispositions, which it is impossible for them to do while they are so
unacquainted with persons in the College. They cannot act in this
business upon any knowledge of their own. They must needs act very
much in the dark in the bestowment of these favors. And, since there
are such favors to be disposed of in the College and among our pupils,
nothing (with submission) can be more reasonable than that we should
have an hand in the disposition ; and this power, prudently managed
by the residents, may be improved very much for the service of the
College by encouraging the ingenious and industrious, and by dis-
22
countenancing the slothful and vicious, if any such there shall be, as by
the non-residents it cannot.
And although in Great Britain the non-residence of the clergy is so
very common in the church, yet in the University the non-residence of
a Fellow of a College is seldom known, and never allowed of but in
extraordinary cases. And, when it is so, there are always a sufficient
number of Fellows left resident upon a foundation to manage the busi-
ness of the College which they belong to. But to have the Fellows
of a college non-resident, and to have other persons introduced, with
only a title, and that are upon no foundation, to manage the business
of it, which is the case here, is, I believe, a thing entirely new under the
Sun ; and, after the strictest inquiry that I have been able to make, I
believe this is the first instance of this nature that ever was, and I am
sure it has produced bad effects in the College, and, if the method be
continued, I make no doubt but it will do so still.
The great numbers we have at College of late require an exacter
discipline than this state of things will admit of, and if we cannot come
at it one way or other (and I believe the method we propose is the only
effectual one that can be thought on, because it is the method of the
charter), if I say we cannot come at it one way or other, in my humble
opinion (and I speak it in the fear of God), instead of a nursery of
religion and learning, which was the pious design of its foundation, the
College will be a nest of ignorance and disorders.
I would gladly have spared some things which I have mentioned: it
is no pleasure to me to have mentioned them, on the contrary it is very
grievous ; but the many insults we have met with from our pupils in
the business of the College, and the loose state of things here, make
thus much absolutely necessary. And I might go on and add many
things more, I believe very much for the service of the College, but,
lest I should be thought to exceed, I choose rather, at least for the
present, to stop here. -
We are regularly elected Fellows, and do not therefore ask for any
new election. And, as for the distinction between Fellows of the Cor-
poration and Fellows of the House, it was never heard of in the Col-
lege until very lately; and sometimes the gentlemen of the Corpora-
tion are upon our books styled Fellows of the House. There is no
color of any foundation in the charter for such a distinction, and we
therefore look upon it as a distinction without a difference ; so that in-
stead of five Fellows, which the charter allows of, there are now seven,
regularly elected and confirmed. And that such who have the busi-
ness of a college should be divested of the powers of its charter, which
23
were granted for their support and direction in that business, and for
no other end, and especially when it has (upon every account) so
sufficient a guard abroad as this has, is to us an inexplicable paradox
in college affairs.
And now the design of this memorial is no other but that we who
are regularly elected Fellows, and confirmed by the Honorable and
Reverend Overseers, according to the directions of the charter, and as
such have the care and business of the College committed to us, –
that we may be enabled to proceed in that business regularly upon the
charter, and according to the known laws of the College made or to
be made ; and that we may have such a subsistence as our predecessors
in this business have formerly had, which has of late years been very
much shortened, for what reasons we cannot tell. And we therefore
assure ourselves (with humble submission) that your Honor, and the
Honorable Board and the Reverend the rest of the Overseers of the
College, will think it reasonable and necessary for the good of the
College that the prayer of it should be granted.
N. SEVER.
IN CouncIL, Aug. 23, 1723.
Read.
f *~s
*
2 * £º 2.
y
/ ... --
3 * 2” -
*-i-. -
HARVARD COLLEGE,
* * * : * ~~~~~~~~~~~~~~~~<^**
BY JOEL PARKER.
-- • --- - - - - --- * *** -- tº:----. .….…...::::::::::.
“Which I wish to remark —
And my language is plain —
That for ways that are dark,
And for tricks that are vain,
The heathen Chinee is peculiar:
Which the same I would rise to explain.”
— Truthful James in the Overland Monthly.
N E W Y O R K :
PUBLISHED BY HURD AND HOUGHTON,
Cam hr tº g c : 33 tº cr 3 tº e 33 regg.
1871.
§

THE
LAW SCHOOL
OF
TH A R V A R D C OT. T. E. G. E.
By JOEL PARKER.
“So fight I, not as one that beateth the air.”
N E W Y O R K :
PUBLISHED BY HURD AND HOUGHTON,
(La mí, r itſ g c : 33 tº cr; itſ z 33 re; g.
1871.
THE LAW SCHOOL
OF
HARWARD COLLEGE.1
MATTERs of personal privilege are said to be always in order,
and personal privilege is often personal explanation.
This paper asks attention to some matters pertaining to the
history of the Law School of Harvard College, which must
necessarily partake somewhat of that character.
I am impelled to this course by two publications, appearing
near the same time in the month of October, — the first a short
article in the American Law Review, relating to the School,
and the other a report of the Committee of the Overseers to
the Board, upon the same subject. * .
I have not inquired who was the author of the article in the
Review. The responsible parties are the editors of that period-
ical, which, in its Summary of Events, speaks in this wise: —
“HARVARD UNIVERSITY. LAw ScHool. — For a long time the
condition of the Harvard Law School has been almost a disgrace to
the Commonwealth of Massachusetts. We say “almost a disgrace,’
because, undoubtedly, some of its courses of lectures have been
good, and no law school of which this can be said is hopelessly bad.
Still, a school which undertook to confer degrees without any pre-
liminary examination whatever, was doing something every year to
injure the profession throughout the country, and to discourage
1 “At the instance of the Law Faculty, the Corporation have passed a declaratory
vote in order to correct a prevalent error respecting the name by which this depart-
ment of the University is known.” . . . . “The true and legal name of the
School is not, as many will have it, the Dane Law School, but ‘The Law School of
Harvard College.’” — President Walker's Report to the Overseers, December, 1859.
4. THE LAW SCHOOL OF HARVARD COLLEGE.
real students. So long as the possession of a degree signified noth-
ing except a residence for a certain period in Cambridge or Boston,
it was without value. The lapse of time insured its acquisition.
Just as a certain number of dinners entitled a man in England to
a call to the bar, so a certain number of months in Cambridge en-
titled him to a degree of Bachelor of Laws. So long as this state
of things continued, it was evident that the school was not properly
performing its function. We were glad to learn, therefore, that the
old system has been abandoned, and are glad to find convincing
evidence of the fact in a circular just issued by the Faculty. The
circular states that ‘The degree of LL.B. will be conferred upon
students who shall pass satisfactory examinations in all the required
subjects, and in at least seven of the elective subjects, after having
been in the school not less than one year.’ The intention is, that
the seven required subjects should occupy the student fully during
one year; the seven electives are meant to fill a second year. The
required studies are designed to serve as an introduction to the elec-
tives. Equivalents will be accepted from students who offer them-
selves for examination upon subjects which they have studied
elsewhere. Students who are not candidates for a degree can avail
themselves of the advantages of the school to whatever extent they
see fit.” . . . . After stating the names of the Instructors the
writer adds, “The learning and ability of these gentlemen warrant
us in predicting that their labors will make the Harvard Law
School what it ought to be.”
Had the author of the article been content to commend the
new order of things, without disparagement of the old, or had
the words of censure appeared to be a mere incidental, careless
utterance, without intention to disparage, the matter might be
passed without notice. But the declaration, that “ for a long
time the condition of the Harvard Law School has been almost
a disgrace to the Commonwealth of Massachusetts,” stands at
the head and front of the article; and the phraseology, although
not very clear or happy, seems to have been deliberately chosen
as particularly expressive of the idea intended to be conveyed;
inasmuch as the writer repeats it, in order to show that that
was just what he intended to say, - no more, no less. He did
not mean to say that the School had been “hopelessly bad.”
“Still, a school which undertook to confer degrees without any
preliminary examination whatever, was doing something every
year to injure the profession throughout the country, and to
THE LAW SCHOOL OF HARVARD COLLEGE. 5
discourage real students.” “So long as this state of things
continued, it was evident that the school was not properly per-
forming its function.” But “the learning and ability of the
present corps of instructors warrant the prediction that their
labors will make the school what it ought to be.”
These utterances present grave charges against the School
generally, against the rules upon which it has been conducted
ever since it was established, and, by implication at least, against
some of its previous Instructors, who, it must be supposed, did
not do what it is predicted the present will perform.
If the writer knew whereof he was discoursing he under-
stood that the learning, ability, labors, or powers of the corps
of instruction do not prescribe the rule for conferring degrees.
The natural inference, therefore, from all that is said, is, that
there has been something beyond the degree to impeach the
School.
Whoever may be the author, it is put before that portion of
the legal profession who read the Law Review, with the en-
dorsement of the editors of that magazine, – two young men,
it is understood, who, about four years since, consented to re-
ceive the honors of the School in the shape of a degree of
Bachelor of Laws, without insisting upon a preliminary exam-
ination to show that they deserved them. The extent of the
injury to the Profession, thereby, is, perhaps, not yet ascer-
tained.
It will not do to assume that the plea of the man, who, being
sued for slander, set up as a defence, that he was well known,
and therefore no injury could arise from anything which he
had said, can be applied to this case, and so the matter appears
to admit of, if not to require, some notice.
It is difficult, under the circumstances, to say which is most
prominent in the article, the conceit which dictated it, or the
entire lack of courtesy manifested by it. In fact, the two are
so harmoniously blended, that they cannot be separated with-
out impairing the effect derived from both in conjunction.
But the conceit and the ill manners are comparatively un-
important. A question, in regard to the truthfulness of the
assertions, throws other considerations entirely into the shade,
and it is proposed to examine them, in this respect, at the
present time.
6 THE LAW SCHOOL OF HARWARD COLLEGE.
Having held the Royall Professorship for twenty years, termi-
nating in 1868, and having been during that time, with the
exception of a single term, Senior Professor, and thus, by the
statutes, the head of the department, I may naturally be sup-
posed to have some interest in the reputation of the school, to
say nothing of my own. Others have an interest also. The
other members of the Corps of Instruction during that time,"
and the relatives of those who were members previously, and
who are now all deceased,” may perhaps be supposed to feel
some interest in it, unless they deem it utterly beneath their
notice. The members of the Corporation, also, from the or-
ganization of the school to the close of the academic year
of 1869–70, are, so far as appears, all embraced in the
“long time ’’ spoken of, and had some interest in the subject.
If the School has been for “a long time, almost a disgrace to
the Commonwealth,” it has been an entire disgrace to the
Corporation to permit such a state of things. It may be added,
that all the past members of the School — especially those who
have received this discreditable degree, conferred without pre-
liminary examination, — cannot take much pride in their
membership, if its character has been what is thus repre-
sented.
How others may have been affected by this slander, I do not
know. For myself, along with a very deep sense of the injus-
tice done to the Institution, I am inclined to mingle a degree of
gratitude to the writer, as the language quoted seems to indi-
cate that it may be expedient to say a few words respecting the
School and my connection with it, which would otherwise
never have been written.
It may be said — it has been said, - “Why take any notice
of such an article; it will not harm you or the School. Quite
true in reference to those who have any knowledge of the sub-
ject. With them, the reputation of the School and of its past
Instructors, was settled one way or the other before this ac-
1 The other Instructors were Hon. Theophilus Parsºns, Dane Professor from August
1848, during the residue of the time ; Hon. Franklin Dexter, Lecturer 1848–49; Hon.
Luther S. Cushing, Lecturer 1848–51; Hon. Frederick A len, University Professor 1849-
50; Hon. Edward G. Loring, Lecturer 1852–55; Hon. Emory Washburn, Lecturer 1855–
56, University and Bussey Professor from 1856; Hon. Richard H. Dana, Jr., Lecturer
1866–68.
Hon. Henry Wheaton and Hon. Edward Everett, appointed Lecturers on the Law of
Nations in 1848 and 1854 respectively, died without taking their seats.
2 Stearns, Story, Ashmun, Greenleaf, and Kent.
THE LAW SCHOOL OF HARVARD COLLEGE. 7
cusation came to defame it. But there are others who will see
the charge, and who do not know ; some of whom may, per-
haps, be reached by a refutation, even if others cannot be.
Besides, I have had good occasion to be assured, since I
commenced this paper, how few persons are to be found, after
the lapse of a single generation, who have personal recollections
of Law Schools, or even very definite traditional knowledge;
while the few items which have been committed to type and
paper, in Town Histories, or brief biographical memoranda,
and even newspaper paragraphs, furnish nearly all the accessible
information, and must be taken for truth.
If other materials now exist, in this case, for the formation
of a correct judgment, this article, if it is now permitted to
stand without contradiction, may, in a few years, be regarded
as an important allegation, influencing the opinion which is to
be formed respecting the state of the School, prior to its publi-
cation; and if, perchance, half a century hence, some plodding
legal antiquary, raking among the rubbish (which is the ap-
propriate occupation of an antiquary), should unearth the
Law Review of October last, and find, among its mouldy
pages, this article on the Law School, and an inquiry should
in that way be raised, in the Antiquarian College, how it could
be possible that such a state of things could be tolerated and
continued, and curiosity should thereupon direct an investiga-
tion of the College catalogue, to ascertain the names of the In-
structors, and the corporate members who suffered it to fall into
such apparent disrepute; I prefer, that in the further inquiries
which it is to be hoped will result from this pursuit of useful
knowledge, the investigators may find, already collected, the
facts which will serve to prove the falsity of the charge, and to
erase from their minds the memory of this ink-spot. It can
hardly be expected that their zeal and perseverance will be
sufficient to induce them to collect the scattered materials
which furnish the proofs. -
The Law School of Harvard College is not the oldest Law
School in the United States, but it is probably the first which
was connected with a literary institution having authority to
confer degrees.
In the catalogue of law schools, in the American Almanac,
a Law department in William and Mary College, Virginia, is
8 THE LAW SCHOOL OF HARWARD COLLEGE.
stated to have been founded in 1782; but I have not been able
to find anything farther respecting it, in that century. It may
have furnished lectures on law to the college classes, or some of
them, but it can at that time hardly have had the character of
a Law School.
The earliest school for legal instruction, in this country, so
far as I am at present advised, was that at Litchfield, Connec-
ticut, founded in 1784 [in 1782, it is stated in a catalogue
published in 1831], by Tapping Reeve, Esq., afterwards
associate and chief justice of the Superior Court of that
State. He was sole principal until 1798, when, on his ap-
pointment to the Bench, Hon. James Gould became associated
with him. Judge Reeve died in 1823, at an advanced age,
having retired from the school in 1820; from which time
Judge Gould continued it alone, for several years; after which
Jabez W. Huntington, Esq., became an assistant. This
School had great and deserved celebrity. At the Harvard
Law School celebration in 1851, Hon. Charles G. Loring spoke
of his attendance at the Litchfield School, in 1813, then at its
zenith, when there were “more than sixty students, from all
parts of the country, every State in the Union being there rep-
resented.” The catalogue of 1831 shows fifty-four students in
1813, the largest number in any single year. It was discon-
tinued in 1832, in consequence of the failing health of Judge
Gould, who died in 1838, having had on its roll over one
thousand students, many of whom afterwards became eminent
in political and judicial life. Probably no Law School has had—
perhaps I may add ever will have — so great a proportion of dis-
tinguished men on its catalogue, if for no other reason, because
attendance upon a Law School was then the rare exception, an
advantage attained in general only by very ambitious young
men, and because there was then much less competition for the
offices and honors to which they aspired.
In an “advertisement” prefixed to the general catalogue of
the school, published by the students in 1831, it is said,
“According to the plan pursued by Judge Gould, the law
is divided into forty-eight Titles, which embrace all its impor-
tant branches, of which he treats in systematic detail. These
Titles are the result of Thirty years' severe and close appli-
cation. . . . . . The lectures which are delivered
THE LAW SCHOOL OF HARWARD COLLEGE. 9
every day, and which usually occupy an hour and a half, em-
brace every principle and rule falling under the several
divisions of the different Titles. These principles and rules are
supported by numerous authorities, and generally accompanied
by familiar illustrations. Whenever the opinions upon any
point are contradictory, the authorities in support of either
doctrine are cited, and the arguments advanced by either side
are presented in a clear and concise manner, together with the
Lecturer's own views upon the question. In fact, every ancient
and modern opinion, whether overruled, doubted, or in any way
qualified, is here systematically digested. These lectures, thus
classified, are taken down in full by the students, and after
being compared with each other, are generally transcribed in a
more neat and legible hand. . . . . . These notes thus
written out are, when complete, comprised in five large
volumes,” &c.
It is evident that some allowance must be made, in regard to
the extent and completeness of the work, even at that day.
But this account serves to confirm, - what I had before under-
stood, - that Judge Gould read from his manuscript, pausing for
the students to write out the principle or rule stated ; which
was very well at that day, when there were few elementary
treatises, but no one would commend it for adoption at the
present time, when text books have multiplied ad infinitum,
And at this day no one, within an hour and a half each day of
a whole course completed in fourteen months, including two
vacations of four weeks each, could fairly begin to do what it
is thus said was accomplished.
Mr. Huntington held examinations every Saturday, upon the
lectures of the preceding week, consisting “ of a thorough in-
vestigation of the principles of each rule,” with “frequent and
familiar illustrations, and not merely of such questions as can
be answered from memory without any exercise of the judg-
ment.”
A Moot Court was held, at least once in each week.
The precise method of instruction by Judge Reeve, I have
been unable to learn, but infer, from such information as I
have, that his lectures were accompanied by more of colloquial
explanation.
In an account of the organization of the Law School of
10 THE LAW SCHOOL OF HARVARD COLLEGE.
the New York University, published in the Law Reporter,
September, 1838, it is stated, that no “institution of a similar
character ever existed in that State, than that which was under
the charge of the learned Chancellor Kent, from 1793 to 1798,
it having then been interrupted by the appointment of that
distinguished jurist to the bench.”
From the minute details respecting the organization of the
new school, it would seem that the article must have had a
New York origin, and that the writer should have had full
means of knowledge respecting the subject-matter; but it
appears that there must be some mistake. I can find no trace
of such a school. The Chancellor before his accession to the
Bench was appointed Professor of Law in Columbia College,
and may have delivered lectures on law to the college stu-
dents; but the College seems to possess no evidence of a Law
School there at that time. After his retirement from the Bench
in 1823, the Chancellor, as Professor of Law, delivered lec-
tures in the College, which were the foundation of his celebrated
Commentaries, but there was no Law School at that time.
The Catalogue of the Institution dates the existence of its Law
School from 1858, without any suggestion that there had been
any such school there previously.
The Law School which for a few years flourished at North-
ampton, in this State, had its origin in the private enterprise of
Hon. Elijah H. Mills, a counsellor in extensive practice, and
Senator in Congress; and of Hon. Samuel Howe, a judge of the
Court of Common Pleas. Messrs. Mills and Howe had been
partners in practice, before the appointment of the latter to the
Bench in 1821. In 1823, they commenced this School. Mr.
Mills delivered some lectures, but his other avocations, and his
ill health, prevented his giving much attention to it. The
greater part of the instruction was by Judge Howe, who had
been a pupil in the Litchfield School.
In 1827, John Hooker Ashmun, Esq., then a partner with
Mr. Mills, was associated with Judge Howe in the School; and
after the death of the latter, in 1828, continued it until his ap-
pointment as Royall Professor, in the School of Harvard College,
in 1829. There were between sixty and seventy students in
it, during the short period of its existence.
The methods of instruction were lectures read by Judge
THE LAW SCHOOL OF HARWARD COLLEGE. 11
Howe, of which the students were permitted to take copies,
oral lectures of which they might take notes, and recitations.
Mr. Ashumun heard recitations. “Coke upon Littleton was
thoroughly studied.” Mr. Webster said of this, as a text-book,
“A boy of twenty, with no previous knowledge on such sub-
jects, cannot understand Coke. It is folly to set him upon such
an author. There are propositions in Coke so abstract, and
distinctions so nice, and doctrines embracing so many condi-
tions and qualifications, that it requires an effort not only of
a mature mind, but of a mind both strong and mature, to un-
derstand him. Why disgust and discourage a boy by telling
him he must break into his profession through such a wall as
this.” – Nevertheless Coke on Littleton very regularly suc-
ceeded Blackstone, as the second text-book of that day.
Next in order comes the Law School of Havard College.
The earliest endowment of which this School has the benefit
is derived from the will of Hon. Isaac Royall, a gentleman who
resided in Charlestown before and up to the time of the Revo-
lution, and who was a representative and councillor for many
years under the colonial government. He did not sympathize
with the Revolution, but took no active measures against it.
Leaving the country for Halifax, and then proceeding to Eng-
land, his estates were taken possession of under the confiscation
acts, of which he complained bitterly, declaring that his sailing
for Halifax was not voluntary, and that he had been prevented
from returning solely by ill health. That he did not permit
his indignation to destroy his attachment to the country, was
made manifest by his will, executed in 1779, in which, along
with other bequests to public objects here, he devised to Har-
vard College more than two thousand acres of land, to be appro-
priated “towards the endowing a Professor of Law in said
College, or a Professor of Physic or Anatomy, whichever the
Corporation and Overseers shall judge best for its benefit,” —
with power to sell the lands, and devote the income of the
money to the purpose.
The land was sold. In 1815 the Royall Professorship of
Law was established on this foundation; and the next year
Hon. Isaac Parker, Associate Justice of the Supreme Court,
was chosen Professor. By some mismanagement, as I have
heard, the nature of which I did not learn, the fund amounted
12 THE LAW SCHOOL OF HARWARD COLLEGE,
to less than $8,000, the income of which, $400, Judge Parker
received as his salary. But his duties required him, I think,
only to deliver fifteen lectures to the Senior Class. He resigned
his Professorship in November, 1827.
In May, 1817, on the suggestion of Judge Parker, it is said,
the Law School was established, and Hon. Asahel Stearns, a
counsellor of eminence, was elected University Professor of
Law. The School was placed under his charge. Judge Parker
appears to have had no connection with it, except that the
students were admitted to his lectures to the Senior Class.
The compensation to Professor Stearns was the tuition fees
paid by the students. It was a School of small beginnings, its
first class numbering three; and it is not surprising that it did
not flourish. The School at Litchfield was then in high repute,
and had long before attracted the few persons from this section
who felt able and willing to attend a School of the Law. In-
struction in that mode was an anomaly, lawyers' offices being
in most instances the resort for a novitiate. The School at
Northampton was a rival, with a distinguished and popular
advocate as one of its instructors, nominally, and to some
extent, actually, - and with a Judge as the other instructor,
enthusiastic, and encouraged by success. Perhaps I may add
that some of the law offices in Boston and elsewhere have
always welcomed students, on account of thre assistance they
render in copying papers, and other office labors. There were
no funds. Two rooms of medium size, one of which contained
a small library, — with the privilege of hearing the lectures on
law to the Seniors, – was the endowment. It is not wonder-
ful that Professor Stearns was discouraged, – if he was not
disgusted. He resigned in April, 1829.
In June of that year the Corporation was enabled to reor-
ganize the School on a better endowment.
Hon. Nathan Dane, a learned counsellor at law in Beverly,
and a gentleman of distinction otherwise, having been for three
years a delegate in Congress under the Confederation, and on
the committee which reported the ordinance for the govern-
ment of the Northwestern Territory, — said by some to have
been its author, — made a donation of ten thousand dollars, the
income of which, and of such other funds as he might there-
after add, was to be appropriated to the endowment of a Pro-
THE LAW SCHOOL OF HARWARD COLLEGE. 13
fessorship of Law. He prescribed the duties of the Professor,
in part, which were “to prepare and deliver and to revise for
publication a course of lectures on the five following branches
of Law and Equity, equally in force in all parts of our federal
republic, namely, the Law of Nature, the Law of Nations,
Commercial and Maritime Law, Federal Law, and Federal
Equity, in such wide extent as the same branches now are, and
from time to time shall be, administered in the Courts of the
United States.” And he requested that Mr. Justice Story
might be appointed the first Professor. The donation was
accepted, and the appointment made accordingly. He after-
wards added five thousand dollars to the fund, in the manner
hereafter stated.
Mr. Ashmun, of the Northampton School, was immediately
afterwards appointed Royall Professor. It is not necessary to
suppose that this appointment was made with a design of put-
ting an end to that School, because the eminent qualifications
of Mr. Ashmun fully justified the selection for other and better
reasons. But the Northampton School terminated then and
there.
The new Professors were formally inaugurated in August,
1829, and the School, with these more encouraging prospects,
entered on its new life, with twenty-four students in its first
year.
Mr. Ashmun's connection with the School was closed, by his
death, in April, 1833, and Professor Simon Greenleaf, a mem-
ber of the bar in Maine, distinguished for his critical discrimi-
nation of legal principles, and at that time reporter of the
decisions of the Supreme Court, was appointed to succeed him.
Judge Story held the office of Dane Professor until his decease
in 1845. Professor Greenleaf, who had been appointed Dane
Professor on the death of Judge Story, resigned July, 1848.
Hon. William Kent, who had been Professor in the Law
School of the New York University, was elected Royall Pro-
fessor in 1846, but held the office only one year. From his
resignation until the spring term of 1848, the school was in the
hands of Professor Greenleaf, with some lectures by two or
three young men who had recently been members of it.
In 1832, a building was erected for the accommodation of
the School, and called “Dane Law College.” It is the part
14 THE LAW SCHOOL OF HARWARD COLLEGE.
of the present Dane Hall occupied for offices and by the text-
books." That part which contains the general library, and the
lecture-room, was added in 1844–45.
From 1829 to 1848, with the chairs of Instruction and Gov-
ernment filled by such eminent jurists, with the accommoda-
tions provided by the new Hall and its addition, and with a
library increasing at such a rate that in a few years the like
was not to be found in the country, - we might confidently sup-
pose that the School had been a success; and it was thought,
during that period, and for a “long time ’’ afterwards, that it
W2.S SO.
Its numbers increased slowly, with occasional falling off
until 1837, from which time, having become more extensively
known, the increase was steady and rapid, until at January
term, 1845, the number of students was one hundred and sixty-
five, the highest number prior to 1848.
Up to the academic year 1838–39 there were three college
terms in each year, and the attendance from April, 1832, ac-
cording to the Steward's books, ranged from eleven at Decem-
ber term 1832, and twenty-six and twenty-seven in 1834 and
1835, to fifty-three in December, 1833, fifty in December, 1835,
and sixty-six in December, 1837, falling again to forty-six,
April term 1838; the average number during that period
being forty-one and a fraction.
From January, 1839, to January, 1848, there being two
terms in each year, the lowest numbers were sixty-nine, and
seventy-seven, near the commencement of the period, - the high-
est one hundred and sixty-five, and one hundred and fifty-one, in
1845–46; the average attendance being one hundred and twelve
and a fraction.
The method of instruction by Professor Ashmun was in
general by recitations, with explanations where necessary; that
of Judge Story by lectures, interspersed with occasional ques-
tions. I have understood that sometimes he examined a half
dozen or so of students, whose names were given in for exami-
nation. He did not hear recitations. Professor Greenleaf fol-
lowed, in general, the method of Judge Story, with somewhat
more of precision in it. Whatever may have been the extent
I Mr. Dane aided in the erection of this part of the building, by a loan. See post.
THE LAW SCHOOL OF HARWARD COLLEGE. 15
and result of recitations and examinations, the degree was in
no way dependent upon them.
Moot courts were held every week, and the usual aid and
assistance given on inquiries by the students. A list of books
for a course of study and reading was made up, which was
enlarged from time to time. It cannot strictly be said that this
course was prescribed, for nothing was exacted. The annual
reports on the School, prepared by the Professors (and which
the Presiden incorporated into his report to the Overseers),
from 1830 to 1837, after stating the number of the students,
closed uniformly with these words: “Their attendance upon
the exercises has been hitherto wholly voluntary, and has been
marked by a punctuality and by a degree of advancement
highly satisfactory. The opportunity of pursuing the study
of the profession at the school is considered as a privilege, and
the students themselves are understood to have been well satis-
fied with the arrangements.” -
From 1837 to 1846, the reports contained the same state-
ment, with the interpolation after the word “ privilege,” of
these words, “which is more and more highly estimated as its
value becomes extensively known.” The reports of the Presi-
dent being regularly printed, and distributed among those con-
cerned in the government of the Institution, and to others also,
and no objection appearing to have been made from any quar-
ter, here is plenary proof that the policy which adopted the
voluntary principle as the basis of government and instruction,
was, during all these years, not only satisfactory, from the first,
to those for whose benefit the School was designed; that the
advantages of the School were more and more appreciated the
more they became known ; and that so far as appears, those
who had the immediate administration of its affairs, and all
others who were interested, were entirely satisfied with its
SUICCéSS.
The Law Reporter for October, 1838, said of it: —
“The prosperity of this school is, we believe, unexampled in this
country. Ever since its first formation it has increased in popu-
larity and usefulness, and under the management of its present
professors, its success has been wonderful.”
In the report of the School for 1837–38, it is noted that the
16 THE LAW SCHOOL OF HARVARD COLLEGE.
students were from eighteen different States of the Union; the
next year they were from nineteen ; the next twenty-two; and
after that “from nearly all the States in the Union ; ” and in a
notice of the School, in the Law Reporter for November 1843,
it is said, that, — -
“It is in conformity with the desires of the distinguished pro-
fessors that the Law School is not regarded as a local institution
teaching the law of a particular state, but as national in its charac-
ter and dedicated to those great rules and principles of jurispru-
dence which are of equal authority in each and all of the States.”
If further evidence were desired respecting its character, and
of the high estimation in which it was held, it may be found in
a report of the proceedings of a Law School Festival, in August
1845 (8 Law Reporter, 145), in which distinguished lawyers,
judges, and statesmen, united to do it honor.
Here I pray that it may be noted, that I have traced the
School from its inception to the year 1848, and I confidently
appeal to my readers to join me in the conclusion that it had
then faithfully performed its duty and exceeded the most san-
guine anticipations of its friends. I shall do no injustice to any
other in saying, that at the opening of that year it stood among
the law schools then in existence, first, as I believe, in date, –
first in numbers, – first in success, – and, of course, first in use-
fulness. It was then an Institution in which any State might take
a just pride. There was then no learned Dogberry to consign
it “into everlasting redemption,” by an allegation that it was
“almost a disgrace.” Thus far, at least, the past is secure.
My connection with the School arose from the unsolicited and
unexpected act of the President and Fellows, in August, 1847,
tendering me the chair of the Royall Professorship, then made
vacant by the resignation of Professor Kent, — an offer which
was promptly declined, – afterwards, on urgent representations
by President Everett, accepted, and the appointment con-
firmed by the unanimous vote of the Board of Overseers.
But I had no experience, nor even knowledge of the details of
the service to be performed, as the President well understood;
and on taking my seat, at the March term, 1848, having had
no leisure for any preparation whatever, I encountered difficul-
ties which seemed formidable, and were certainly embarrassing.
When I entered upon my duties I found that the topics which
THE LAW SCHOOL OF HARWARD COLLEGE. 17
formed the subject matter of the lectures for a two years'
course, had been divided between Professors Greenleaf and
Kent, the year before; that Professor Kent's course devolved
on me; and to my dismay, Shipping and Admiralty was
upon my list for that term. My residence in the interior of a
State which had had but one port, the business of which was
nearly all transacted in Boston, had given me no occasion to
become acquainted with that branch of the law, and I tried in
vain to escape by an exchange. Professor Greenleaf's answer
that he was then in the middle of his topics for the course,
showed that he could not comply with my request. So, frankly
stating the difficulty, I told the students I would study the
text-book with them.
But there was another difficulty, of a more general character.
It was understood to be my duty to deliver a certain number
of lectures, and to hold a certain number of Moot Courts, be-
side taking a share of the general superintendence and man-
agement of the School. I had listened to one lecture and the
half of another, by Professor Greenleaf, in which with great
ease, he expounded the principles of the branch of the law then
under consideration, occasionally interspersing questions to the
students. How far he followed, directly, the text-book before
him, was not apparent. -
The practical difficulty which met me, in the outset, arose in
this way. I was to deliver a lecture upon a certain topic, and
was at liberty to interpose as many questions as I pleased;
but there was a text-book, twenty, or thirty, or more, pages of
which, furnished the foundation of the lecture. The students
were supposed to have read this portion of the text, in antici-
pation of the lecture, and to be reasonably acquainted with the
contents. Confining myself within these limits, how was I to
proceed 2 It was not expedient for me to state the propositions
in the words of the text. The students were acquainted with
them already. It would be of little advantage to vary the
phraseology, and state the same principles in different formulas.
If the text-book was a good one, how was I to deliver a lecture
without a “departure,” which lawyers well know is, in pleading,
obnoxious to a special demurrer. I might escape the dilemma
by asking questions, but that was, to that extent, turning my
lecture into a recitation by the students. I availed myself
2
18 THE LAW SCHOOL OF HARVARD COLLEGE.
largely of my privilege, however, and having made an earnest
request to the students to ask me any questions on their part,
they availed themselves of their privilege. The School was at
that time a very strong one, many of the students being on
their last term. And so we had for some time a lively inter-
change of interrogatories. It was not difficult to perceive that
the students were disposed to try the new Professor, and I
enjoyed it, for, having been fifteen years upon the Bench, I felt
much more at home in answering questions, than I did in de-
livering Law lectures, properly so-called.
In this way I gradually found my way out of my embar-
rassments, having come to the conclusion that text-books were
not the perfection of Law lectures, and that it would be no de-
parture from a true lecture to subject the book to a rigid criti-
cism, traversing its propositions if they were unsound, - qualify-
ing them if the principle were stated too broadly, - suggesting
exceptions, where they existed, – amplifying those parts where
brevity had limited the statement too closely (not, perhaps, a
very common fault), — and referring largely, in some instances,
to contradictory decisions.
An illustration occurs to me, as I write, perhaps as marked
as any which could be selected. Coming to the part of the
text-book on Bailments, which treated of the question whether
a common carrier can limit his liability, by a notice to the owner
of the goods that he will be answerable only for negligence, or
by an agreement with the owner that he should be so answer-
able only, - the suggestion was naturally made that they could
not rely upon the text, nor upon the decisions referred to in the
notes, because the extraordinary responsibility of the carrier, —
that of an insurer, with certain exceptions, – did not arise from
contract, and therefore was not governed by the law which reg-
ulated contracts in general, but was, as they had been called to
note, imposed upon him by the policy of the law, for the reasons
stated, - that the carrier could not relieve himself from this re-
sponsibility by a notice that he would not be bound by the rules
of the law, even if such notice were given directly to the owner,
— but this policy of the law did not prevent the carrier from
making an agreement with the owner, for a more limited re-
sponsibility, which would be binding on the owner — nor from
making reasonable rules for the government of his business
THE LAW SCHOOL OF HARWARD COLLEGE. 19
in relation to the times of receiving goods, for notice of con-
tents of packages, respecting payment, &c., and that notice
of such rules would impose upon the owner the duty of com-
plying with them, - adding however, that the decisions were
contradictory, and the practitioner must carefully ascertain
what were the doctrines held by the Courts in the State where
he resided, and govern himself accordingly.
Recapitulating the principles stated in the text, to some
extent, where they appeared to be sound, in order to cover the
ground by a connected discourse, and resorting to the method
which I have stated where the matter appeared to call for it, I
preferred, where I could shape them to advantage, to put cases
illustrative of the subject matter, for the answers of the
students, instead of questions directly upon the text-books.
Suppose a client should state his case thus , what would be
your opinion, or what would you advise him 2 In this way
the student made a practical application of what he had read
and heard.
Where there was no suitable text-book, which was thought to
be a fact in some instances, I had, of course, to state and main-
tain my own propositions."
But there came, in time, a new difficulty respecting questions
of any sort, — and that was in obtaining answers to them without
consuming too much of the time assigned to the lecture, — arising
mainly from a fear, on the part of the student, that the answer
1 If it had occurred to me, at that time, to turn to the account of the organization
of the Law School of the New York University, published in the Law Reporter
some ten years previously, to which I have referred, page 9, I might have been
relieved from some of my embarrassment, or at least have had some earlier assurance
respecting the course which my experience marked out for me. But at that time I
had probably not read the article, and it certainly did not occur to me to seek a solu-
tion of my difficulties in that quarter. It is there said: — “The mode of instruction
contemplated by the plan is by oral lectures illustrating and explaining a previously
prescribed text reading, and by examinations thereon. In regard to this mode of in-
struction, we most cordially agree with Professor BUTLER, that the “most useful kind
of Law lectures is that which is designed to elucidate a preparatory course of text
reading, previously assigned to the student, and to impress on his mind and memory,
its leading principles: ' and that ‘ the oral lecture is not only far more attractive and
inciting, but it furnishes the opportunity of supplying the defects of the text-books,
and of giving much useful information which would never be incorporated in a written
lecture. The speaker not being confined to the precision of written language, nor to
strictly scientific examination of his subject, and his great object being to expound
and illustrate the Text reading, he may select such topics as are most important, and,
when necessary, may amplify and repeat, in a manner which may be very useful to
his hearers, but which would not be allowed in written composition.'”
20 THE LAW SCHOOL OF HARVARD COLLEGE.
might be wrong, -and an erroneous answer, made in the face of
the whole School, was a subject of dread. There would doubt-
less have been less of this on questions directly upon the text-
book, although in that case the facility of obtaining answers
will naturally vary considerably at different terms.
A school of this kind thinks for itself, and feels for itself, to
a very great degree. Of course its opinions and feelings, its
moods and humors, vary more or less with the changes of its
material. I speak of the general tone and temper of a school.
At one time there are a few strong, confident young men, of
more than average mental powers, and they give it a lead
which makes the school generally of that character. At
another time the average runs very even, and the school is
studious and thoughtful, with no remarkable demonstrations.
At another, very estimable young men, but inclined to
timidity, have acquired the respect of their associates, and, in
the absence of strong natures, the lead is that way. All this is
very natural. We know how a few reckless, daring spirits,
unless effectually checked, will give a lead and a tone to almost
any school. The influence holds good in other respects.
If it might be supposed, that the difficulties and perplexities
which I have stated were wearing away as my first term pro-
ceeded, I was not approaching a state of ease and comfort.
In June, Professor Greenleaf’s health failed, and he left the
School, and the city, to seek rest and repose elsewhere, tender-
ing his resignation, to take effect at the close of the term. He
had probably a premonition of that disease of the heart which
suddenly terminated his life, in 1853.
The School was thus left wholly on my hands for the
remainder of the term, with an experience of something more
than three months to direct me.
Upon a new division of topics in the course of the vacation,
with Professor Parsons, who succeeded Professor Greenleaf, I
was desirous of retaining Shipping on my list, in the hope that
my studies on that subject, during the last term, might avail
me somewhat in another course of lectures; but the answer
that his practice had been in Boston, and that branch of the
law a specialty, could not but be admitted as a conclusive
reason why I should give it up ; as I did also the other text-
book which had served as the basis for my other course of
THE LAW SCHOOL OF HARVARD COLLEGE. 21
lectures; so that I entered on my second term with the
necessity of entire new preparation so far as lectures were con-
cerned.
With the loss of Professors of large learning and experience,
and a high reputation as instructors, and the substitution of
those who had no experience whatever, it was impossible that
that the attendance should not diminish.
The new administration closed its first term in January, 1849,
with one hundred students on its roll, which, however, was a
larger number than was in attendance at the term closing in
July, 1847. The number did not increase until the third year
afterwards, but held, with the exception of one term, at nearly
that number.
And here I may note an illustration of my remarks in relation
to changes in the moods and phases of the School. Being deeply
impressed with the value of Moot Courts, as a means of instruc-
tion, I proposed, at this first term of the new administration, to
double the number, so as to hold two each week, which was
assented to, and that course adopted as a Faculty regulation.
The plan worked well for a time, – the students were eager to
take their turns as counsel, and prepared their cases with great
zeal. But in the course of a few years a change came over the
spirit of the dreams of their successors, the interest flagged, and
then came a term at which it was difficult to find students who
were entitled to act as counsel, and who were willing to be
retained, and I yielded very reluctantly to a proposition to
change the rule. The School changed afterwards, but I could
never procure its restoration.
The precise mode of lecturing adopted by my associates, I
am unable to state, but suppose that the general method of
instruction in the School, taken as a whole, however it might
differ in minor details, was not essentially different from that
which had been in use by our predecessors.
The mode of instruction adopted by the Litchfield school
was well adapted to the time when it was instituted and
attained its greatest success. But the multiplication of text-
books and digests, in the half-century which succeeded, had
rendered it inappropriate. It was no longer the business of
students to make manuscript texts and digests for themselves.
The multiplication of decisions rendered it impracticable to
22 THE LAW SCHOOL OF HARVARD COLLEGE.
collect and explain all, or even the most important of them,
and an attempt to follow that course would have been not
merely unwise, but positively pernicious. While it answered
well in the age when cases were comparatively few, when
Mansfield and Ashhurst, Buller and Grose had just been set-
tling in a court of law some of the great principles which lie at
the foundation of commercial jurisprudence, and those principles
had not been traced into their minute ramifications, – it would
now, in my opinion, with the immense addition of cases and
arguments which the books furnish, fill the mind of the student
with a mass of material which he may readily find elsewhere
when he has occasion for it, — which, if he were to attempt to
memorize it in the School, - however he might classify it, — he
could never readily apply to the infinite variety of human
transactions in the minute variations which might present
themselves in his practice; and if he did not become merely a
“case lawyer,” as those are called who have only a recollection
of cases, he would be, at best, a digest of matter which he could
not apply with the necessary facility. No small part of the
education of the legal student is to learn how to study, - to
learn that the law, as a whole, is, necessarily, a mass of principles
and rules applicable to various interests, rights, obligations, and
duties, many of which relate to a single branch of those
interests or rights, – as the principles which govern the acquisi-
tion, possession, and transfer of real estate, the law which
regulates the rights and duties of Principal and Agent, and the
law of Bills of Exchange; while other principles and rules have
a much wider application ; that in relation to these last, it is
often a most difficult inquiry to ascertain which of different
principles governs a particular case; and that there are,
besides, distinctions continually presenting themselves requiring
a very nice and accurate discrimination.
But I am not writing a treatise on the study of the law, my
object being, merely, to justify, if I may, that course of instruc-
tion which leads the student to the acquisition of a knowledge
of the great principles which lie at the foundation of jurispru-
dence, — to an investigation of the relations of the different
principles to each other, — and to their practical application, –
instead of a course which leads to the collection of a large num-
ber of legal propositions, and to a digest of cases.
THE LAW SCHOOL OF HARWARD COLLEGE. 23
The course of instruction which comes nearest to the attain-
ment of the result which I have indicated is the best course.
Recitations, however well adapted to the education of chil-
dren, and even to young men in the Academic department, and
however perfect they may be, will not make lawyers. That
they may be used to some extent is not to be doubted, – but
they should be auxiliary, and not principal.
Neither will lectures make lawyers. But it is more impor-
tant that the Instructor should tell the students of a Law School
what he knows which is not contained in the text-books, than
that they should tell him what they know is to be found there.
Of the success of the school from January 1848 to January
1868, I may not speak, except by furnishing a few data for ex-
amination, and for comparison between the periods prior and
subsequent to January 1848, and by a reference to the reports
of the several Presidents of the College.
From January 1848, to January 1858, the lowest numbers
were seventy-four, and eighty-eight, the highest one hundred and
forty-three, and one hundred and fifty, the average being one
hundred and one. From 1858 to 1868, the lowest numbers
prior to the war were one hundred and mine, and one hundred
and twenty-sic, the highest one hundred and sixty-seven, and
one hundred and seventy-six during the war the lowest in
1862, and 1863, were sixty-nine, and seventy-nine, the highest
one hundred and twenty-six, and one hundred and thirty-six ,
after the war the lowest were one hundred and nineteen, and one
hundred and twenty-eight, the highest one hundred and sixty-
eight, and one hundred and seventy-seven, the largest number
ever in attendance;— average during the whole period, near
one hundred and twenty-nine; average, deducting the period of
the war, one hundred and forty-four.
A comparison of averages, omitting the earlier years of the
two periods, gives from 1842 to 1844 one hundred and eleven ;
from 1844 to 1848 one hundred and thirty two from 1853 to
1862 one hundred and twenty-seven, and after the war, from
July 1865 to January 1868, one hundred and forty-eight.
One other comparison. The aggregate of the highest num-
bers for any six terms prior to 1848 was eight hundred and
forty eight, average one hundred and forty-one; the aggregate
of the highest numbers for six terms after 1848 was mine hun-
24 THE LAW SCHOOL OF HARVARD COLLEGE.
dred and eighty-nine, average one hundred and sia-ty-five, lack-
Ing one.
If it be said, that there was an increase of population and
wealth within the last period, it must be said also, that there
was a great increase of Law Schools, — quite as many commer-
cial convulsions, which always affected the School, - that after
the slavery agitation in 1854, the attendance from the Southern
States did not increase, and on the opening of the war, with one
or two exceptions, ceased entirely. There had been an average
of nearly thirty students from that section. Besides, the war
drew heavily from the School to recruit the armies of the Union.
In January 1860 the attendance was one hundred and seventy-
sia, in July 1862 sixty-nine ; in January 1866 one hundred and
8eventy-seven.
We have seen very clearly what the character of the School
was up to 1848.
If the data already given are not sufficient, on which to de-
termine whether its character after that time rendered it ob-
noxious to the charge which has been brought against it, refer-
ence may be had to the proceedings at the celebration of the
Story Association formed by the students of the School in 1851.
Again, eminent men, judges, counsellors, statesmen, and schol-
ars assembled within its walls," to participate in its festivities.
Once more. — The annual reports of the different Presidents
of the College, to the Board of Overseers, on the state of the
different Departments of the College, if they may be supposed
to place them in the most favorable light, must also be supposed
not to contain any statements which were contrary to the re-
ceived reputation of any Department.
I may not quote from the report of President Everett, made
in January 1849, in relation to the changes which occurred in
1848. It was very natural that it should be complimentary,
and may be so received.
In December of that year, President Sparks's report said, –
“The school continues to retain the confidence which the pub-
lic has so largely bestowed upon it, and which is justified by its
present numbers and general prosperity.”
In his report in 1852, he said, - “The Law School has exhib-
ited steady proofs of growing prosperity. It is believed that
1 See Boston Daily Advertiser, July 21, 1851.
THE LAW SCHOOL OF HARVARD COLLEGE. 25
the attendance on the lectures, application to study, and the
deportment of the young gentlemen connected with the school,
have at no period been entitled to higher approbation.”
President Walker, who had been for nearly twenty years a
member of the Corporation, and for fifteen years Professor in
the Academic department, said of it, in his first Presidential re-
port, in 1853, “This school has become a national institution.
Not a third of its present members are from Massachusetts and
but little more than half from the New England States.”
His report in 1854, contains this clause, – “The Law School
continues to flourish, as will appear from the details given in
the Appendix. The number of students was larger last year
than at any former period, as was also the number of graduates.
Notwithstanding the increased expenses of living, the pressure
of the times and other adverse influences, the number of
students in attendance has fallen off but little, standing at pres-
ent at one hundred and forty-three. They are drawn, as here-
tofore, from almost every State and territory in the Union. To
sustain the character and reputation of the school, and to in-
crease or even to retain its present numbers, it is believed that
more superintendence and instruction are required than can be
given by two Professors.”
In 1855 his report was, – “Though from various causes the
number of students has fallen off a little, almost every State in
the Union is still represented in the Law School, and the spirit
prevailing there was never better than at present.”
In 1856, -" The Law School is still resorted to by students
from every section and from almost every college in the United
States. Its Faculty has been strengthened, and its means of in-
struction and superintendence materially extended, during the
past year, by the institution of a third Professorship and the
appointment of Ex-Governor Washburn to the new chair.”
His report for 1857 says, – “The Law School is in a flourish-
ing condition.”
In 1858, - “The Law School, notwithstanding the multipli-
cation of similar institutions throughout the country and the
flourishing condition of several of them, has not declined either
in numbers or usefulness.”
In 1859, -"The Law School is in a more flourishing con-
dition than at any other former period, numbering at present
26 THE LAW SCHOOL OF HARWARD COLLEGE,
one hundred and seventy-eight students drawn together from
every part of the country.”
Next come the reports of President Felton. In 1860, he
says, – “The Law School has not only maintained but sur-
passed its former prosperity. As has been already mentioned,
the students have been drawn from twenty-nine States. They
have pursued their studies with exemplary diligence, and while
the discords of the country have been increasing, they have lived
in uninterrupted harmony. The Law Library needs to be en-
larged, and it is hoped that a Professorship of Roman Law may
be added to its means of instruction.”
In his report for 1861, President Felton has to note the fact
that, “The Law School has been somewhat affected by the
state of the times.” He adds, “A considerable number of Law
students usually come from the Southern and Western States,
and this circumstance has given that department of the Uni-
versity a beneficent influence upon the whole country, and
that influence will be felt again the moment peace is restored.
Notwithstanding these drawbacks the school has been well at-
tended, and the young men have devoted themselves to their
studies with unusual earnestness and success.”
Assailed by the accusation which has given rise to this paper,
the School is entitled to the benefit of these annual commenda-
tions.
If the reports of President Hill do not contain similar mat-
ter, the reason may, perhaps, be found in the fact that his re-
ports treated more of additions and improvements which were
desirable in the Academic, than of the existing state of things
in any department of the College.
Notwithstanding the secession of Southern students, and the
multiplication of Law Schools, this School was at the height of
its prosperity, as regards the number of students in attendance,
and the number of degrees, in the latter part of the time while
he held the Presidency.
The design of the school, as announced in its early circulars,
was to afford a complete course of legal education for gentle-
men intended for the Bar in any of the United States, except
in matters of mere local law and practice.
We have seen that in 1843 it was not regarded as a local in-
stitution, but as national in its character, — that in 1845, this
THE LAW SCHOOL OF HARVARD COLLEGE. 27
view of its character was sustained at the celebration on the
enlargement of its Hall, - that in 1853, President Walker
characterized it as a National Institution, subjoining proofs of
the fact, and that similar proofs appear in subsequent Presiden-
tial reports, from year to year.
Notwithstanding the increase of Law Schools after 1848,1
and notwithstanding the agitation respecting slavery, its stu-
dents for many years before the war came from near or quite
two thirds of the States in the Union, with numbers from New
Brunswick, and Nova Scotia, and not only so, but a large ma-
jority of them were from other places than Massachusetts.”
It has been suggested as a reason why so many of its stu-
dents were from other States, that the School has been exten-
sively advertised. It has advertised the commencement and
duration of its terms, with a direction to whom application
might be made for catalogues and circulars, and through such
applications, as well as by distributions by its students, it has
extensively advertised the Academic Department by a circula-
tion of the College catalogue.” Its best advertisements have
have been the students who have gone forth from its walls to
success and distinction in the ranks of the profession, and its
large and very valuable Library.
But I am not to overlook the fact that there is in the defa-
mation something in the nature of a specification. The statistics
thus presented, it is admitted, do not cover the whole of the
accusation. The accuser is, to some extent, it does not pre-
cisely appear to what extent, more specific in his charge. His
language already quoted is, – “Still, a school which undertook
to confer degrees without any preliminary examination what-
1 In 1848 the number of Law Schools was nine, several of them in their infancy.
In 1862 they had increased to eighteen, some of them in positions where they would
necessarily affect this school, to some extent, more especially those whose degree gave
admission to the Bar of the States, in which they were situated.
2 Perhaps the critics may, upon reconsideration, be inclined to regard the School as
“almost a disgrace'' to the United States.
8 “It is a gratifying circumstance that at the commencement of the present term
twenty-six States were represented in the undergraduate department, — a larger
number than were ever represented before, and larger by nine States than were rep-
resented ten years ago, - and the members of the Law School represented twenty-
nine States. Harvard College has grown from a provincial School to a national
University, comparing favorably in point of numbers and courses of instruction
with the Universities of the Old World.” — President Felton's Report to the Over-
seers, December, 1860. The question what addition to this representation of the
States in the undergraduate department was made by the circulation of College cata-
logues, and otherwise, by the Law School, does not admit of a precise answer.
28 THE LAW SCHOOL OF HARVARD COLLEGE.
ever, was doing something every year to injure the profession
throughout the country, and to discourage real students.”
This then, so far as there is specification, is the reason why the
school was “almost a disgrace to the Commonwealth.” It is
not assigned as the whole reason, but it seems to be advanced
as the principal point. Whatever is beyond is left to conjec-
ture.
It is obvious to remark upon this, in the first place, that a
degree, the conferring of which did something to injure the
profession and discourage students, and by reason of which the
school which conferred it was “almost a disgrace ’’ to the State
in which it is situated, could not have been a coveted distinc-
tion, and the large increase of the number of graduates is
something very remarkable. This very obnoxious degree was
received in 1866 by sixty-nine students, and in 1867 by seventy-
four, the largest numbers at any period since the institution of
the School. Such a degree should, itself, have been regarded
as a disgrace.
The supposition that the accuser himself has received that
obnoxious degree, which poisons the good name of the State,
transcends any ordinary capacity of belief. He should have
rejected it when tendered to him, very nearly, not quite, in the
language of the state prison convict who, when the warden told
him that if he would behave well during his term, he would, at
its expiration, give him a certificate, replied, - “That would
be a pretty travelling recommendation.”
If the writer of the article is really a graduate, the exploded
rule of law, that no person should be admitted to stultify him-
self, ought to be revived for his benefit.
The critic must have known, (as critics are presumed to
know everything, and take good care by their confident opin-
ions and assertions not to rebut the presumption), that the
accusation, so far as it is founded on the degree without exam-
ination, is an impeachment of the Corporation and Overseers,
and not of the Faculty or of the School. The rule regulating
degrees is in no wise under the control of the Faculty. The
Law Professors in office when the rule was under consideration,
may have been accessories before the fact, but their successors,
who have administered it, cannot be charged as accessories, or
aiders and abetters, for they have only performed their duty,
THE LAW SCHOOL OF HARWARD COLLEGE. 29
and that cannot be charged as an offence. Such Presidents as
Kirkland, Quincy, Everett, Sparks, Walker, Felton, and Hill,
and among the Fellows such lawyers as H. G. Otis, Charles
Jackson, Joseph Story, Lemuel Shaw, Charles G. Loring, B.
R. Curtis, E. R. Hoar, and B. F. Crowninshield, have been
art and part in adopting, or maintaining, the rule. It is these
men, and others like them, who are accused of “doing some-
thing every year to injure the profession,” and of making the
Law School “almost a disgrace ’’ So far as the degree is con-
cerned in producing that result.
“ Mr. ,” said Professor Ashmun to a very conceited
student, — (there are such occasionally, - rare instances, I am
happy to say), — “Mr. , what is the rule of law in such a
case,” — stating it. The student confidently said the rule was
so and so. “Well, Mr. ,” said the Professor, “ of course
you must be right, but this old fool of a Coke says the rule is
directly the other way.” And so these gentlemen, of the
Corporation, said the rule should be that, which the critic says
would have made the School a disgrace, had not some good
courses of lectures interposed to save it from becoming abso-
lutely bad, and left it only almost so.
The Catalogue for 1829–30 contains the circular of the School.
Before that the catalogue had only the names of the officers and
students. The rule regulating degrees, as there set down, is,
— “Gentlemen who are graduates of a College will complete
their education in three years. Those who are not graduates
will complete it in five years.” This was in conformity with
the rule of the Bar in Massachusetts, and some other States, – a
rule recognized by the Courts, which admitted to practice on
the recommendation of the Bar, – by which graduates were re-
quired to study three years, and those who were not graduates
five years, before admission. And under this rule of the Col-
lege, students who commenced study in the School, and pursued
the full course of two years, did not obtain the degree until
they had studied the remainder of the term, either in the
School or elsewhere.
But this was applying the Massachusetts rule for admission,
to students who came from States where a different rule pre-
vailed, and in 1834–35 we find the rule of graduation to be —
“The degree of Bachelor of Laws is conferred by the Uni-
30 THE LAW SCHOOL OF HARVARD COLLEGE.
versity on students who have completed the regular term of
professional study required by the laws or rules in the State to
which they belong, eighteen months having been passed in the
Law School of this Institution.”
This, however, still left an inequality. Of two students who
had studied eighteen months in the school, one could have his
degree immediately, because the rule in his State required no
longer term of study for admission to the Bar. The other, if a
graduate, must wait eighteen months, and study somewhere
during that term, because his State required three years for
admission. If he had not an Academic degree, he must wait
and study two years longer. The impropriety of making the
degree depend on what transpired elsewhere, and especially
upon inequalities arising under State rules and regulations,
doubtless became apparent when it was further considered, and
so we have another change, but one which was not entirely for
the removal of all inequality.
In 1839–40 we find the rule thus, “All students who have
pursued their studies in the Law School for three terms, or
eighteen months, or who having been admitted to the Bar,
after a year's previous study, have subsequently pursued their
studies in this School for one year, are entitled upon the certifi-
cate and recommendation of the Law Faculty, and on pay-
ment of all dues to the College, to the degree of Bachelor of
Laws.”
This discrimination in favor of gentlemen who have been
admitted to the Bar was doubtless intended to attract that
class, and induce them to avail themselves of the benefit of the
School.
With a change which provides for the allowance of six
months’ study in another Law School having power to confer
degrees, as a part of the eighteen months required, this rule
stood for thirty years.
Now I do not mean to say that this rule was the wisest
which could be devised. That is, of course, an open question.
And the rule having been changed so as to require an examina-
tion, in order to attain the degree, that ought to be the better
rule. Such being the opinion of those who now have the
matter in charge, the change is well, although the question
which is the better rule can hardly be settled, with any precis-
THE LAW SCHOOL OF HARVARD COLLEGE. 31
ion, because so many foreign elements will interfere with
those upon which the question should be determined. See
Appendix Note A.
But I have to say, that considering the rule carefully, during
my connection with the School, - because it was a subject re-
lating to administration upon which at any time a representation
might have been made to the Corporation, I came decidedly to
the conclusion that no change was desirable.
With the exception of the requisition of a certain term of
study, the degree is honorary, and has been so understood by
those conversant with the rule. It did not admit to the Bar,
unless there was in some State, legislation to that effect, and in
such case the fair presumption was that the act was passed
with knowledge of the requirements of the School, and with
a design to induce candidates for the profession to avail them-
selves of advantages for the acquisition of legal knowledge,
greater than they would have by the general course of ad-
mission.
Generally, however, where provisions exist by which the de-
gree operates as an admission to the Bar, they are limited to the
school or schools of the State, and intended for the encourage-
ment of such schools, and in such cases as there is no examina-
tion for admission to the Bar, it is quite proper that one should
precede the degree."
But in the absence of legislation giving to the degree the
effect of admission, the degrees of a Law School differ mate-
rially from the ordinary degrees of the Academic department.
There the study for a term of years is not for the purpose of
qualifying the student for a particular vocation, to enter
which he must pass a subsequent examination, on his college
1 Such is the case in the Law School of Columbia College, which was established in
1858, and had fifty students that year. In 1860, the Legislature of New York passed
an act, by which graduates of the school are admitted to practice in all the courts of
the State on receiving the College diploma. This was asked for on the condition that
a course of two years' study should be required for the degree. There were two hun-
dred and thirty students the past year. But one hundred and sixteen of these were
from New York City, forty from other places in the State, thirty from New Jersey, and
thirteen from Connecticut. And notwithstanding the deserved reputation of the
School it may fairly be presumed that many of them were attracted by the operation of
the degree as an admission to the Bar.
It is understood also that the degree of the Law School at Cincinnati gave admission
to the Bar of Ohio. Further than this I am not advised. Perhaps such provisions
have a tendency to make local schools.
32 THE LAW school OF HARVARD college.
studies, by another authority. Whereas that is emphatically
true of the student in the Law School, if he is required to pass
an examination for his degree, and another for his admission to
the Bar, – one for the honor, another for the practical result.
He may like it. If so, there can be no reasonable objection.
The tendency of legislation for many years past has been to
give admission to the Bar, to all citizens of the State, twenty-
one years of age, and of good moral character. Such is, by
statute, the rule in some of the States, compulsory on the
courts. No novitiate, whatever, is required.
With such legislation, and such tendencies, if it is not the
duty of the Law Schools to throw open wide their doors, and
entice all who can be induced, to come in and avail themselves
of their advantages, – offering the honors of the school, on time,
without further examination respecting acquisitions, it is cer-
tainly not an offence, to do so. Great benefit must result. A
young man cannot well breathe the atmosphere of an active
school, without learning something of the law. As a general
rule, parties induced to join in order to obtain the degree,
whether with or without examination, will understand their
own interest, and labor accordingly. Idleness and negligence
will be the exception. Examination as a requisite for the
degree must have a tendency to repel those whose previous
limited education renders them doubtful whether they shall be
able to acquit themselves, satisfactorily, under such a test; and
these are the very ones it is desirable to reach. Some of them,
— I think I may say the greater portion of the earnest ones, are
quite as likely to avail themselves fully of the advantages
which they possess, – to use what they acquire, in the further
pursuit of professional knowledge, and in the successful practice
of the profession, — as those who are anxious to be examined to
obtain the diploma. There were from time to time ten,
twelve, fourteen attorneys at Law, in the School, desirous to
obtain the degree. How many of them would have come to
be examined for it cannot be known."
1 Rev. Dr. Peabody, as acting President, said in his report in 1862, speaking of
scholarsbips in the Academic Department, “But there is a large class of deserving and
needy students who fall short of the rank which entitles them to scholarships. Among
those who become our best scholars there are some who, not having enjoyed the pre-
liminary training of schools of high grade, are not prepared, for the first months of their
college course, to become successful competitors with those who are thoroughly fitted
THE LAW SCHOOL OF HARVARD COLLEGE. 33
For these and other reasons, I have been satisfied of the wis-
dom of the learned men whose policy invited as many as would,
to come and share the advantages of the School, - to acquire
the knowledge how study should be pursued, and investigations
made, and principles applied; and how distinctions show dif-
ferences leading to varied results, – rather than to memorize
an indefinite number of legal principles, which dozens of text-
books at the present day will furnish them, and which therefore
they can commit to memory more thoroughly in the early days
of their professional life. A young man may make himself a
very respectable digest of legal propositions, with a very limited
knowledge of the reasons why they exist, and of the methods
of their use.
The knowledge of forms, and of their practical application,
is best acquired in an office.
Thus much for the libel in the Law Review.
A Report from the committee appointed to visit the Law
School in the present year, and published, out of the usual
course, in the Daily Advertiser, of October 17th, while it
makes no charges, directly, against the previous administration
of the School, may be thought to contain some implications of
that character. It is as follows : —
“The committee appointed to visit the Law School respectfully
report : ” —
“That, in the discharge of their duty, they have, by committees
of their number, visited the school and attended its exercises. They
have also, in their own meetings, and in conference with the presi
dent of the university, considered and discussed the prospects and
needs of the school, and the various plans suggested for increasing
its usefulness. Several of the suggestions which they had intended
to make have been anticipated by the action of the law faculty and
to enter college. There are others who fall but little below the successful competitors,
and are fully their equals in industry and merit. There are yet others, destined to be
able and useful men in after life, who commence their education at a late period, and
cannot therefore become as accurate classical scholars as those who acquire the rudi-
ments of the ancient languages in childhood, who yet attest their mental capacity and
vigor by their strong grasp of the subjects on which they are occupied in the last year
of the college course.”
This description, with a slight variation, is, perhaps, quite as applicable to students
in the Law School, as to those in the Academic Department; and may be considered
with reference to degrees, as well as to scholarships.
3
34 THE LAW SCHOOL OF HARWARD COLLEGE.
of the corporation, especially that of procuring courses of lectures
and instruction by gentlemen eminent in the active practice of the
profession, from which the committee expect excellent results.”
“They are happy in being able to report generally that the school
is animated with an excellent spirit, and that both what is now do-
ing, and what it promises for the next years, is encouraging and
satisfactory.
“It is much to be regretted that the library, which was formed on
a comprehensive plan, has not, of late years, kept up with the prog-
ress of the law, and that its condition, as respects the preservation
of the books, is not agreable to the lover of books, or the lover of
learning. The attention of the law faculty is directed, as the com-
mittee have reason to know, to some method for the better preserva-
tion of the library, and for the more careful and systematic selection
of books by purchase ; and it is much to be desired that such a plan
may soon be devised and carried into execution.”
“The committee also wish to express the opinion that the sys-
tem of oral recitations, formerly in use, might with advantage be
restored. It has seemed to them that a system of lectures, not as-
sisted and enforced by recitations, is defective in theory, and not
satisfactory in practice. The committee are happy to observe that
systematic instruction in pleading, with written exercises, has been
introduced, and they think that similar instruction, to some extent,
in drawing other legal papers, might be of practical advantage.”
“The moot-courts are — as they have ever been — a most useful
stimulant to the student, and are conducted with Spirit and interest.
It may, perhaps, be suggested, that the nearer a moot-court ap-
proaches an actual court of law, especially in order and decorum,
the more useful it will be as a preparation, and the less will the
change be felt when the student takes his place at the bar. Applause
from an audience is not calculated to produce the true style of legal
arguments, which aims only at convincing the court; and it is also
to be desired, in considering the order of the room, that the student,
when he first stands before a court — in the responsible position of
conducting a real case — when he will need all his faculties to be
undisturbed — should not find the observance of the ordinary rules
of decorum to be a restraint by reason of their novelty.
“For the committee,
“F. E. PARKER, Chairman.”
There is something singular respecting this report. So far
as I am aware, it is the only one, out of some fifteen or more
which must have been made by the different visiting commit-
tees, which has been supposed to require, or particularly to de-
THE LAW SCHOOL OF HARWARD COLLEGE. 35
serve, publication in this mode. Nothing is shown on the face
of it, either in matter or manner, to indicate that the interest
of the School required an extraordinary publication of this
character. Nor do the subjects treated of appear to be of such
public interest as to call for a newspaper circulation.
But this is not for me to determine. It may be expedient
that the public should be informed, in this mode, that the com-
mittee, in meetings of their own, and in conference with the
president, have discussed the prospects and needs of the School,
— and that several of the suggestions which they had intended
to make have been anticipated by the action of the law faculty
and the corporation, especially that of procuring courses of lec-
tures, &c. This last particular is the one that seems most to
require an advertisement.
But is it in the interests of the School that the public is in-
formed that “it is much to be regretted that the library, which
was formed on a comprehensive plan, has not, of late years,
kept up with the progress of the law, and that its condition
as respects the preservation of the books is not agreeable to
the lover of books or the lover of learning.”
If in either of these respects there has been a neglect which
has impaired the usefulness of the library, as it has existed
heretofore, then it is but justice that the public should in this
way be advised of the fact, and thus be put upon the inquiry
whether the means of instruction are still sufficient.
It is evident, however, that it was not as a “caution to the
public,” that this report was published.
But it forms, perhaps, an appropriate supplement to the ar-
ticle in the Law Review, which it closely succeeded, and may,
like that, serve to herald the glory of the new order of things,
by a little depreciation of the old, - and so I propose to add
my mite to the extension of its circulation, but with the ad-
dition of some matters, which it may be presumed that the
portion of the committee which concocted the report “ did not
understand.”
Respecting the recommendation of a return to the system of
oral recitations, I have nothing to add to what has been said,
except that the Catalogue for the present year shows the ap-
pointment of four additional instructors for the year, all of them
as “Lecturers.”
36 THE LAW SCHOOL OF HARVARD COLLEGE.
With the exception of a limited outfit, the school was a self.
supporting institution, until Mr. Bussey's princely donation to
the College, of the income of which it is the recipient in part,
became available to some extent in 1861–62.
“The endowment of the Royall Professorship, the income of
which until 1869 was accounted for by the college at five per
cent. ($397.18), less than one seventh of the salary, for many
years, has already been stated.
We have seen that Mr. Dane's original foundation for the
professorship which bears his name was $10,000. He after-
wards lent to the corporation the sum of $7,000, to aid in build-
ing a Hall, under an arrangement by which at the end of five
years the sum of $5,000 was to be transferred to the endow-
ment of the professorship, and the remaining $2,000 was to be
repaid, which was done."
The income of the fund of this professorship, which at first
was credited to the school at $500, was thus raised to $750, at
which it stood in the college books until 1867, − one quarter of
the salary of the professor, for many years. The balance of the
amount required to erect the original Hall ($3,667.20) was sup-
plied from the general funds of the College. Thus the whole
expense of the original structure (10,667.20) was defrayed by
the College.
... There is a small fund, called the Foster fund, the income of
which ($151.02) was received by the School every third year,
it being distributed to the Theological, Law, and Medical
schools alternately.
With these exceptions the School until 1862 paid its own ex-
penses. *
The enlargement of the Hall in 1843–44 costing $12,707.22,
— the purchase of books for its library, which in August, 1848,
1 President Quincy, in his History of the College, says, – “In October 1841, Mr.
Dane advanced the sum of $5,000 towards the erection of a Law college, and proffered
a loan of $2,000 more in order to enable the corporation to proceed immediately to
erect the edifice.” And the Treasurer in his Statement for 1831–32 says, –“ By funds,
chiefly supplied by his [Mr. Dane's] bounty, a new Hall has been erected, combining
offices for the professors,” &c., - and again, “Hon. Nathan Dane has placed with the
corporation the sum of $7,000, for the erection of a Law college.”
From these statements it would be inferred that Mr. Dane had made a donation of
$5,000, at least, for that purpose. But the Treasurer's accounts show that the sum of
$5,000, thus “advanced,” or “supplied,” was, at the end of five years, to be added to
his original donation, to found his professorship, which was done, Mr. Dane receiving,
it seems, five per cent. interest in the mean time. The sum of $2,000 was repaid to
his executor. -
THE LAW SCHOOL OF HARVARD COLLEGE. 37
had cost $34,916.57, − the subsequent additions which will be
stated, - the salaries of its officers, – premiums for disserta-
tions, – with its other expenses, and some heavy extra charges,
have been defrayed from its revenues.
It received a large and very valuable accession of books, re-
lating to Foreign, particularly Roman Law, from the bequest of
Samuel Livermore, Esq., of New Orleans, who died in 1833.
And it has been the recipient of numerous smaller donations of
books, from other parties. -
Beyond this, so far as I am advised, until Mr. Bussey's
bequest gave it an income, in the accounts of 1861–62, of
$2,500.82, it has not been a tax upon the charity of the public,
or the purse of the corporation.
On the contrary it has been charged, for a number of years,
with a percentage upon its receipts for tuition, for the use of
the College Library by its students, and with a portion of the
salary of the Assistant Steward, $400 or $500 per annum, for
the services rendered in the Steward’s office in receiving and
disbursing its revenues. Against the tax for the use of the
College Library the Professors remonstrated, - on the ground
that it was greatly disproportionate to the use of the books by
the law students, and that the School needed all its funds for
the increase of its own library and other purposes, – and ob-
tained some reduction.
But a more serious draft upon its ability to provide for the
increase of its library, resulted from an attempt to reduce the
expenses of its students for board and rooms. Numbers of the
students in the School were young men of limited means.
Others were prevented from joining for a similar reason. There
were numerous inquiries whether students could find employ-
ment to enable them to pay expenses, and whether there were
any funds to aid them. The Faculty appropriated the income
of the Foster fund, received every third year, in aid of such
students, by small appropriations toward the payment of the
fees for tuition. But this was a very small matter. The Pro-
fessors applied to the Corporation for authority to remit the
charges for tuition, in special cases, and obtained leave for each
Professor to nominate one student for remission, in considera–
tion of such services as the student might perform, and author-
ity for the Faculty to receive notes, payable when the promissor
38 THE LAW SCHOOL OF HARVARD COLLEGE.
should be able, for the tuition of six others. By applying this
authority to credits for part of the tuition of several students,
according to the exigency of each case, requiring the residue to
be paid, it was made to operate as a relief to numbers, but,
severally, of very small amounts; and all this in no manner
reached the expense of board and room-rents, which, with a
large increase of students in the several departments, had in-
creased in a greater degree.
Believing that these expenses were too high, an attempt to
reduce them was made in 1856 by the purchase, on Law School
account, of the Brattle House, a hotel recently discontinued.
This was done with the consent, and by the act, of the Cor-
poration.
President Walker, in his report for 1857, after saying that
the Law School was in a flourishing condition, added, - “With
a view to reduce the expenses of education at the School, the
Brattle House has been purchased, by the Corporation, for the
accommodation of the students, a much lower rent being
charged for the rooms than has heretofore been paid for those
obtained in the village, or in the college buildings. The base-
ment and lower story have been rented to the keeper of a
boarding-house,” &c. . . . . “The accumulated funds of the
Law School have been invested in the purchase, and the whole
establishment has been placed under the supervision and control
of the Law Faculty. There has not, as yet, been sufficient op-
portunity to determine how far this experiment will prove suc-
cessful.”
Three or four years of experiment, however, settled that
matter, resulting in disaster. The accumulated fund thus in-
vested, amounting with interest for the year to $16,886.70, was
lost, and the Treasurer's books showed a debit to the school in
1860 of $17,299.21, which was subsequently reduced by a
credit of $15,000 for the property. The school was thus de-
prived of the means to make more than the necessary additions
to its library, for several years. It was discharging its debt,
when the war reduced its revenues, on the one hand; and some
income from the Bussey estate came to give timely aid, on the
other.”
1 The scheme to purchase the Brattle House did not originate with me, nor did I
make any of the calculations, by which it was supposed to be shown, that it would not
THE LAW school, OF HARVARD COLLEGE. 39
Thus the library was not enlarged, as it might otherwise
have been. But notwithstanding the reduction of receipts, by
change of instructors, financial revulsions, and this absorption
of its funds by the purchase of the Brattle House, it expended
in the purchase of books for its library from August 1848, to
August 1858, sums amounting to $8,496.77; and notwith-
standing the loss occasioned by that purchase, and the diminu-
tion of its revenues by the war, it expended for the same pur-
pose, in the next ten years, $8,838.61, a total of $17,335.38;
besides paying $13,812.50 toward the increase of the college
library in the same time, exacted mainly because the college
library could not get money enough in other ways.
However desirable it might have been to make other pur-
chases, certain it is that no serious inconvenience was sustained
by the students, or any one else, by reason of any lack of ad-
ditions. And I submit, that under the circumstances, the
School is not to be charged, even by implication, with a dere-
liction of duty in this respect.
A special committee of the Board of Overseers, appointed
in 1868, to whom the annual reports of the several Visiting
and Examining committees were referred, with instructions
to prepare a full account of the condition, needs, and prospects
of the University, reported in February, 1869, on this part of
their subject, — “The library of the school, though by no
means complete, is supposed to be much the largest law library
in the country. It numbers about thirteen thousand volumes,
comprising all the American Reports and the Statutes of the
United States, as well as those of all the several States; a reg-
ular series of all the English Reports, including the Year
Books, and also the English Statutes; the principal treatises
in American and English law, together with a large collection
of Scotch, French, German, and other foreign law, and of the
entail any loss upon the School, but would furnish an income, – nor was I present when
it was finally determined to make the purchase. But the attempt to lessen the ex-
penses had my hearty support, — the purchase, my approval, on the representations
which were made; my aid, such as it might be, was given to render it a success, and I
do not shrink from my share of responsibility for the measure and its effects. The
arrangement failed, partly from the fact that no person eminently qualified could be
found to manage the concern, and partly because the partial measure of success which
attended it, by reducing the rates charged elsewhere, tended, of itself, to pecuniary loss.
This loss of the accumulations of the School in an attempt to render its advantages
more accessible was a misfortune, but not even almost a disgrace.
40 THE LAW SCHOOL OF HARWARD COLLEGE.
best editions of the Roman or Civil Law, with the most cele-
brated commentators on that law.”
This does not look like great neglect. The members of that
Committee, who may be supposed to be lovers of books and
lovers of learning, do not appear to have discovered anything
in the appearance of the library to call for special comment.
They say, in closing their report upon the School, - “They
[the students] come from every part of the Union, about
twenty-five States, on an average, being represented each year;
so that there is no extravagance in regarding the School, thus
constituted, as one of the instrumentalities that must help to
promote a good understanding between the different sections of
the country.”
Alas! that it should have been, just at that time, and long
previous, “almost a disgrace ’’ to Massachusetts; and that a
Visiting Committee should have discovered, in the very next
year, that it was “much to be regretted that the library, which
was formed on a comprehensive plan, has not, of late years,
kept up with the progress of the law, and that its condition, as
respects the preservation of the books, is not agreeable to the
lover of books or the lover of learning; ” and that it was found
expedient to inform the public, generally, of those facts.
This brings us to the consideration of the latter part of this
charge, – neglect as respects the preservation of the library.
Notwithstanding “ the attention of the Law Faculty is di-
rected, as the committee have reason to know, to some method
for the better preservation of the library,” it may be expedient
to consider the method of the past, in connection with its
alleged results.
Lovers of books are of two kind. One loves them for their
nice appearance on the shelves, – for the uniform sizes in which
they may be arranged, “all in a row,” — for the fresh appear-
ance of their backs (a little gilt adds somewhat to the affec-
tion), — and for the evidence, if they have been used, that it
has been by dainty fingers.
It is certainly desirable, that they should not be used by
dirty fingers. But in a large library, many of the books used
only at intervals, longer or shorter, dust will accumulate, fin-
ger-glasses are not among the ordinary appurtenances, nor has
each man who examines them a wash-bowl at his elbow ; and
THE LAW SCHOOL OF HARVARD COLLEGE. 41
so the fingers do become soiled with a little dust, which, being
partially transferred to the books, offends the visual organs of
this lover of books.
Another loves them for the treasures of learning and knowl-
edge which they contain, and for their capacity of transferring
their stores of learning into the possession of those who study
them, to be used for the promotion of the welfare and happi-
ness of mankind.
Lovers of learning are generally of this latter class, and they
know that books cannot be diligently read and studied, by hun-
dreds of young men, for ten, twenty, thirty, forty, or fifty
years, as the case may be, without becoming soiled, worn,
even dilapidated. Leaves will become loose, and covers will
break: —
“’t is true, ’t is pity,
And pity "t is, *t is true.”
Presuming that there has not been any material change in
the appearance of the books since my resignation, in January,
1868, I point to their worn appearance with pride, as an evi-
dence that they have been diligently appropriated to the pur-
pose for which they were designed, and that they have given
their efficient aid in sending a knowledge of the law into nearly
all the United States, New Brunswick, Nova Scotia, and other
places, some of the isles of the sea included.
Doubtless some injury may have occurred, which could have
been avoided by more careful handling. That is but an ordi-
nary incident to the use of books by many persons.
But many of these books, used with all due care, have had
a longer and a harder service than some of the persons to whom
their appearance is not agreeable; and may therefore be held
excused if they look a little more worn.
The care and preservation of the library is not a new subject
with me.
Uniform practice, heretofore, from the commencement of the
School, has been to give the students free access to the books in
the library, for use in the library-room, and the privilege of
taking volumes to their rooms on having them charged by the
librarian. This is no more than the usual privilege accorded
to students in offices. It is, if not absolutely essential, at least
42 THE LAW SCHOOL OF HARWARD COLLEGE,
of great convenience in the preparation of cases for the Moot
courts, and facilitates the progress of their general studies.
This freedom of use subjects the books, of course, to wear,
and dilapidation of binding, to an occasional loss of a text-book,
or other elementary work, and sometimes, out of course, to
depredations of a larger amount. An instance of the latter
character occurred many years since. At the opening of one
of the terms, the janitor brought to my office some twenty
volumes on which there had been an attempt to deface the
stamps on the covers, and the labels, which showed that they
were the property of the School. Whether conscience, or
parental intervention, or fear of detection because something
of the marks remained on most of them, caused the restoration
is unknown. It was understood to be a case of property re-
turned, “no questions asked.” Although the attempt had been
so far unsuccessful, that the books could not have been used
without danger of detection, an order was immediately given
to procure a suitable stamp, and to stamp many of the leaves
throughout all the volumes of the library, so that the evidence
of ownership could not be destroyed without tearing out the
leaves, which it was supposed must prevent similar attempts in
the future. But in 1861, the librarian became suspicious that
some one was stealing the books. Efforts were made to detect
the supposed offender, without success, and the librarian, a
nervous man, became quite excited on the subject. In this
state of affairs there came a visitation.
Prior to 1861 there had been a visitation of the law library,
from time to time, by a sub-committee of the committee ap-
pointed to visit “The Library,” under a notion that “The
Library’ included all the libraries of the different depart-
ments. Some countenance had been given to such an idea, by
the fact that in annual catalogues, and other publications where
it was desirable to make a show of the possession of large
numbers of books, the “University Library'' was made to
include the College library, the libraries of all the professional
Schools, the Astronomical library, and even the Society libraries
of the students. But when it was said, on the same page, “the
Library is always closed on Saturdays,” the College library
alone was intended. And when the Overseers appointed one
committee to visit “The Library,” as a department of the Col-
THE LAW SCHOOL OF HARWARD COLLEGE. 43
lege, another committee to visit the Theological School, another
to visit the Law School, and another the Medical School, it
was quite apparent that the committee to visit “ The Library "
was not a committee to visit the libraries of the Theological,
Law, and Medical departments, because upon the committees
severally charged with visiting those departments devolved the
power and duty of visiting their Libraries; which could not
then have been supposed to need two visiting committees, in
each year. The library of the Law School is no more a part
of “The Library,” than Dane Hall is a part of Gore Hall.
The Treasurer, in his annual Statements of his accounts, has
an account with “Library,” which uniformly means the Col-
lege library, and when a percentage was deducted from the
receipts for tuition in the Law School, for “The Library,” the
Law School library never had any of the benefit of it. It was
directly the reverse.
So far as I now recollect, the committee to visit the Library
never undertook the duty of visiting the libraries of the Schools,
but in some instances, how often I cannot say, sub-committees
have been detailed for that purpose. Such a sub-committee
probably visited the library of the Law School several times, saw
the Librarian, might or might not have seen some of the Pro-
fessors, and nothing more was heard about it. Whether the
librarians of the day made written reports to the sub-com-
mittees before 1861, I have no knowledge. But in that year a
sub-committee came, and finding it to be term time, the library
in daily use, and so not presenting the order and neatness of
the general library, and no report of the librarian ready, made
a somewhat curt report to the general committee. As soon as
the vacation came, the librarian hastened to make the desired
report to the sub-committee, in which he estimated the loss of
books for the year at one hundred volumes, adding, “Since a
number of volumes reported missing at the last examination
were found in their places, it may be expected that many of
the missing volumes may be returned.” But he concluded,
that the means taken for the security of the library were in-
sufficient, winding up that part of his report with the extrava-
gant remark, “How the books can be best preserved and the
working character of the library maintained, is a question of
44 THE LAW school, OF HARVARD COLLEGE,
some difficulty; but an immediate answer is called for, or the
losses will soon render the question an idle one.” "
Upon this report, the general committee appointed a special
committee, which had an interview with the Professors, who
stated the difficulties attending any other arrangement than
that which had prevailed since the organization of the School,
but asked the committee, if they could, to devise some plan for
better security. The special committee made a report in which
they expressed the opinion that further provision ought to be
made for the security of the library. They said “Every
special library requires special regulations. Perhaps the most
frequent use of this library by students is in the preparation of
their moot-court cases. For this purpose they must have
entire freedom to range through the library, take down what-
ever book they choose, and consult it at their pleasure. This
privilege cannot be abridged, and rules must be made to con-
form to this necessity. The learned Professors think that such
freedom necessarily endangers the security of the books. Your
Committee think otherwise, – provided proper regulations are
made and enforced to meet the emergency. Such regulations,
however, have not been made and enforced ; and the surprise
of your Committee is not that so many books are missing, but
that so many remain.” They recommended that the library,
when open, should never be left without an attendant, whose
duty it should be to keep it in order, and see that the regula-
tions were enforced ; that the text-books be called in as often
as once within each year, and a thorough examination be
made ; that shelf-lists be immediately prepared which should
exhibit an exact inventory of the library; that the responsi-
bilities of the librarian be increased, and those of the janitor
diminished; and that the Professors impress upon the minds of
the students, practically as well as theoretically, the fact that
the books are property, and that to take one surreptitiously was
a dishonorable and an immoral act, — doubting whether, with
present usages, that truth could be taught in any other way
than by punishment, — all which was published, along with the
report of the Committee on the Library.
The Faculty being clearly of opinion that the adoption of the
1 Whether the suspicion of depredations which gave rise to this excited remark,
was founded on fact, is not known. A subsequent examination rendered it doubtful.
THE LAW SCHOOL OF HARWARD COLLEGE. 45
first and fourth recommendations would cost more than would
be saved, were not inclined, in the then state of the funds, to
make the changes recommended; on the second and third,
made such provisions as seemed suitable ; and having, from time
to time, for years previously, performed the duty recommended
in the fifth, without punishing transgressors, made no change
in that particular.
In the autumn of 1862, the Professors, in their report to the
Committee of the Overseers appointed to visit the School, laid
the whole matter before them, and received their emphatic ap-
probation of the course pursued.
In the mean time, however, a sub-committtee of the Com-
mittee to Visit the Library that year, had come again. The
librarian then reported to them that five volumes of those re-
ported missing last year had been returned, – that the missing
books for the year amounted to nineteen volumes, – that the
recommendations that were made by the special committee
“were found to involve a much greater expenditure than it
would take to supply the missing volumes, and the financial
condition of the School did not warrant a large outlay for the
purpose of enforcing ‘practically as well as theoretically'
sound views on the rights of ‘property'; ” and that the actual
yearly loss of text-books was no larger than that of other
libraries of the same circulation.
But the sub-committee, in their report, which was submitted
to the Overseers in February, 1863, admitting that the loss
shown during the year was not so great as the cost of providing
additional supervision would have been, persisted in their stric-
tures in relation to the management of the library on this
point.
Deeming this hardly just to the Faculty and not quite
decorous to the Committee appointed to visit the School, the
Faculty, on the occasion of the next visit of that committee,
reported upon the whole subject ; suggesting a question re-
specting the jurisdiction of the Committee on the Library, as
well as making a defence on merits. This report may be
found in the Appendix. See note B. The Visiting Committee
again sustained the course adopted, and it was understood
would so report to the Overseers. The reports of this com-
mittee were not published, as were the reports of the sub-com-
46 THE LAW SCHOOL OF HARWARD COLLEGE.
mittee on the library, and I never saw their report which was
presented in January, 1864, nor had any knowledge of its par-
ticular contents, until long afterwards. Under existing circum-
stances my modesty permits me to place it along with the
report of the Professors in the Appendix. See note C. The
sub-committee came not, after that, to my knowledge, and so
that matter ended.
In the report of the special committee of 1861 (submitted in
1862), when they supposed that one hundred volumes had been
lost during the last year, they say: “The number of books
missing, large as it is, indicates a higher degree of moral prin-
ciple among law students than young gentlemen pursuing their
professional studies are commonly supposed to possess. It is
safe to say, that even no theological library in the land could
maintain its integrity, under similar circumstances.”
In a report of the sub-committee of 1863 (submitted in Jan-
uary, 1864), when the librarian's report showed but five vol-
umes missing during the year, the sub-committee “are glad to
be able to say, that either the morals of the school or the man-
agement of its library, or both, have decidedly improved during
the last academic year.”
As there had been no very material change in regard to the
management of the library, the morals of the students are en-
titled to the full benefit of the compliment; and the interest-
ing problem is presented, - if, with one hundred books sup-
posed to be stolen in one year, the morals of Law compare so
favorably with those of T heology, what must be the relative
condition of the two when Law loses only five volumes a year?
The means for the increase of the library are now ample.
The income from the Bussey fund is greatly enlarged. The
income from the Royall, Dane, and Foster funds, has been in-
creased by the allowance of a greater interest by the college,
and the contribution to the College library appears to have been
abolished. See Appendix D.
The means are also sufficient to provide for its security, and
the methods for its better preservation, to which the Visiting
Committee of the present year seem to have referred, appear to
be in full operation. The usage of the School, which for forty
years gave the students free access to the books in the general
library, — a privilege which the Professors deemed, if not es-
THE JAW SCHOOL OF HARWARD COLLEGE. 47
sential, highly valuable, and of which even the special commit-
tee, in 1862, said, “The privilege cannot be abridged, and
rules must be made to conform to this necessity, "- has itself
been made to conform to some other necessity, and the students
are now fenced off from access to the books, except as they re-
ceive them from the hands of the librarian, or his assistants.
They can therefore rest assured that their morals are secured
thus far; and if a sufficient number of wash stands, with their
appurtenances, shall be provided, the new additions may be
preserved, to some extent, in such condition as to be agreeable
to that class of the lovers of books, who think more of their
covers than they do of their contents.
In relation to instruction in Pleading, had it been entirely
omitted, it could hardly be charged as in any degree a disgrace
to a Commonwealth, which by legislative enactment has per-
emptorily reduced the forms of personal actions at law to con-
tract, tort, and replevin, - and in such actions abolished the
whole system of pleas, replications, rejoinders, surrejoinders,
rebutters, and surrebutters, and issues arising therefrom, - re-
quiring a simple answer to the plaintiff’s allegations, no further
pleading being required after the answer, except by order of
COUrt.
Other States have gone still further, and amalgamated the
pleadings in equity with those at law ; informal statement on
one side, and informal answer on the other, being the recog-
nized procedure.
But the study of Pleading is not unimportant, and was not
neglected. It formed part of the regular course, with Stephen
and part of Chitty as text-books, and a reference to Stearns on
Real Actions. Lectures were regularly given in the course,
and, on request, instruction in that branch, at times when the
topic was not in the order of the term. I may perhaps be per-
mitted to say of it, that the instruction was given by one who
had had some practical experience in that branch of the law.
And with the tendencies of modern legislation it may be
doubted whether “old fogies” of that description will not soon
be scarce.
An attempt was made, also, to introduce drafts of declara-
tions, but I was very soon convinced that a Professor, who gives
out cases for drawing declarations, if any large number of the
48 THE LAW SCHOOL OF HARVARD COLLEGE.
students shall furnish drafts not conformed to the accredited
precedents, will be likely to find that he has more occupation in
determining how far a departure from those forms may extend,
without subjecting the pleading to a special demurrer, than will
be profitable to himself, or of great advantage to the students.
Recognized forms exist at the present day, covering almost
all common cases in Pleading, and of other legal instruments,
and it is safer to follow them where they exist, as every depart-
ure may give rise to a question whether the pleading or other
instrument is sufficient, or what are its meaning and effect.
Very little of unusual matters of pleading can be taught by
instruction through forms. It must be by teaching the princi-
ples which govern their construction.
If it is supposed that the young lawyer, rising to address the
Court or jury will fail in the performance of his duty, because
there are no cheers to encourage him, or that making one good
point in his case, he cannot so well make another, having missed
the applause which has invigorated him in a Moot-court, it is
undoubtedly advisable to put an extinguisher upon the applause
there. The administration of the School which came into ex-
istence in 1848, and found the custom in use among the stu-
dents, did not deem the matter of sufficient importance to be-
stow much thought upon it, certainly did not conclude that it
was pernicious.
But if this ought to be prohibited, there are other things de-
serving of consideration. The presence of his fellow-students
in the Moot-court is an incentive to exertion, on the part of the
counsel there, as well as their applause ; and the question
comes, if it be supposed that on appearing in court he may fail,
because he lacks the applause to which he is accustomed, and
that is therefore abolished, may it not be feared that he may
fail as disastrously, when he is not only no longer sustained by
the attendance which encouraged him in the Moot-court, but
finds a new “sea of up-turned faces' greeting his first appear-
ance in a new forum. In truth the danger lies here, and when
applause is no longer permitted, ought not provision to be made
so that he may have as much of the old surroundings as is pos-
sible. If a committee of the “old familiar faces,” as large as a
visiting committee of the Overseers, cannot be sent to surround
the new-fledged lawyer in order to inspire his bosom with con-
THE LAW SCHOOL OF HARVARD COLLEGE. 49
fidence, and nerve him for his first struggle at the Bar; may it
not be practicable at least, upon notice that a graduate is about
to make his maiden speech, to order out a sub-committee to sit
in his eye, and supply, thus far, the old stimulus; or may not
an arrangement be made, by which a Professor shall be detailed
to sit by the side of the judge, with a smile of encouragement,
which is not always to be found upon the bench.
If there is any weight in the suggestion of the committee,
the new temple should be as much like the old as may be prac-
ticable, and as the Moot-court cannot be made a Court of Jus-
tice, the latter should take the similitude of a Moot-court.
Really, if this suggestion did not come from a dignified
source, it might provoke to mirth and laughter. But the sub-
ject must be quite too grave and solemn for that.
Let the Faculty, and the Corporation, and the Overseers, look
to it.
4
APPENDIX.
–0—
NOTE A. See page 31.
THE course of study announced in the Circular of the Law School
for 1870–71, comprises several “Required studies,” and eighteen
“Elective studies; ” and the “Subjects of instruction” during the
Academic year 1870–71 include all of the required studies, and
eleven of the elective.
Of the Degree it is said, – “The degree of Bachelor of Laws will
be conferred upon students who shall pass satisfactory examinations
in all the required subjects, and in at least seven of the elective
subjects, after having been in the school not less than one year.”
But it is added, - “The seven required subjects” “are intended to
occupy the student fully during one year; the seven elective sub-
jects, which are further necessary for a degree, are intended to fill
a second year.”
The student may have his degree if he can pass examination at
the end of a year. But as the seven required subjects are intended
to occupy him fully during one year, and as “candidates for a
degree who begin their studies in this school are expected to
devote their first year to the required subjects,” how is the student
to be qualified to pass an examination, at the end of that time, in
the seven elective studies, which are further necessary for a degree,
and which are intended to fill a second year. Of course he cannot
be expected to crowd the labors which are intended to fill two years
into one.
The examination is to be “of a thorough and searching character.”
Of course it must be, if it is to give value to the degree. An ex-
amination which regularly turns by no one, but finds all the candi-
dates qualified in the fourteen studies, is little better than a sham
and a delusion, because it proves nothing, — somewhat nearer being
almost a disgrace, than the practice of granting the degree, on time,
without any examination, because in the last case there is no hollow
pretence about it.
APPENDIX. 51
If, however, the student has studied the seven elective subjects
before he enters the school, he may attain the honor at the end of
his first year. But as “the seven required subjects are designed to
be the beginning of the course,” and “to serve as an introduction
to the elective studies,” he will reverse the order intended, and
begin at the other end.
Equivalents may be accepted from those who have studied else-
where, but what equivalent can be accepted for the required studies,
which must be supposed to lie at the foundation of legal learning.
The practical operation of the rules would seem to be, that
gentlemen who commence their studies out of the school, and begin
at the wrong end, may present themselves for examination after
having studied one year in the school, but those who resort to the
school at the commencement of their studies, will not be expected
to appear as candidates until the end of two years. Whether this
is in the interest, either of the school, or of sound legal learning, I
do not presume to judge.
Again, the Circular of 1870–71 specifies eleven elective studies.
The student may elect seven of these. He may, of course, omit four
of them, and is not required to be examined on those omitted.
And as Jurisdiction and Procedure in Equity, Bailments, Agency,
Negotiable Paper, Partnership, and Corporations, are found in the
list, he may escape examination in any four of these six, which he
pleases. Supposing the examination, therefore, to be “searching
and thorough "so far as it extends, it may, at most, only show that
the student has made a successful beginning in the study of the law,
and he may know little of some of its most important topics.
Perhaps it may be found to deserve consideration, whether a
regenerated Moot-court should not be held, to détermine the ques-
tion, — Can the degree, founded on such an examination, operate as
conclusive evidence of the final redemption of the School from its
fallen state 2
NOTE B. See page 45.
REPORT OF THE PROFESSORS TO THE COMMITTEE OF OVERSEERS
APPOINTED TO WISIT THE SCHOOL IN 1863.
To the Committee appointed by the Overseers of Harvard College to
visit the Law School.
The Professors in that Department have the honor to report:—
That the School has continued during the year now closing under
the same superintendence which has existed for several years past
without any essential change in the mode of instruction.
52 APPENDIX.
Lectures have been delivered by the Royall Professor upon
Pleading, Constitutional Law, Bailments, Corporations, and Equity
Jurisprudence; by the Dane Professor upon Blackstone and Kent's
Commentaries, the Law of Shipping, Marine, Fire, and Life In-
surance, and International Law ; and by the Bussey Professor upon
the Law of Real Property, Arbitrament and Award, Criminal Law,
the Domestic Relations, Wills and Administration, and Professional
Ethics.
The course of Instruction adopted by the wisdom of their prede-
cessors, after a large experience, is believed to be well adapted to
the wants of the young men who desire to avail themselves of the
advantages of the School, and the Professors have been slow to risk
innovations. The instruction therefore is still carried on mainly by
means of Lectures and Moot-courts, with an exemplification of the
principles under consideration by cases propounded for solution.
These, with a careful study of the text-books, and the Clubs formed
by the students for mutual discussion, furnish full employment, even
for the most studious.
Competition for prizes offered for Dissertations, while it undoubt-
edly tends to the acquisition of special knowledge respecting the
subject under investigation, necessarily withdraws the student some-
what from the course of his general studies, and, except in a few
cases, it may admit of question how far, upon the whole, the offer of
prizes tends to the benefit of those who write for them.
In like manner the Professors have hesitated to make any essen-
tial change in the mode in which the students have access to the
books in the Law Library, or in the means adopted for its security,
notwithstanding the strictures which have been made and published
upon that subject in the reports of the sub-committee of the Com-
mittee appointed to visit “the Library” — not the Law Library.
The Professors are not disposed to raise a question upon the visita-
tions of this sub-committee upon “the Library.” They are pleased
to receive from any quarter valuable suggestions in relation to the
preservation of the Law Library. They may say, however, that
there is a committee (the present committee) appointed for the
express purpose of visiting the Law School, - its Library as well as
all other of its Departments, – and they must express some surprise
at the remarks which have been made upon the subject, in the
reports alluded to, and to add, that the sub-committee could not
have been fully aware of the probable results of their recommenda-
tions if they had been adopted. The increased expenses which
would have been incurred if the measures recommended for the
APPENDIX. • 53
security of the Law Library by the sub-committee in 1861 had
been adopted, would have far exceeded the value of all the books
lost during the year which followed, and, in the belief of the Pro-
fessors, such measures would have tended rather to increase the
losses than to diminish them. Ever since the foundation of the
School, so far as the Professors are aware, the students have been
permitted to have free access to the books; and this appears to be
necessary in order to give them the advantages which they expect
to derive from the use of them. It is one of the inducements to
enter the School. It must be quite apparent to any one who con-
siders the subject carefully, that with such use of the books, the
Library cannot be placed under restrictions similar to those adopted
in libraries which are resorted to merely for the purpose of taking
out books, or for occasional limited perusal in the Library itself;
and it must therefore from the nature of the case be exposed to
greater dangers. The whole subject was fully discussed with the
committee appointed to “visit the Law School” last year, and the
course pursued, it was understood, had their unanimous approba-
tion.
The report of the Librarian will show the condition of the
of the Library for the year ending in July last, and tend to the cor-
rection of some errors in previous reports. He gave, it seems,
somewhat more of attention to the security of the Library than his
predecessors, and he says, “Students were in some cases detected
in removing books without permission, and the lecture-room was
found to be the avenue through which books find their way out of
the building. Immemorial custom has made this course law, and
it is quite difficult to check it. The course was to ascertain def-
initely the volume taken, and to allow an opportunity to return it,
which in all cases was done.”
But there is no reason to doubt that in the instances which the
Librarian thus speaks of, the books would have been returned in
good faith, even if they had been taken to the lecture-room, and
thence to the student's room, without any record of them. It is
not probable that there was one case among them, in which there
was a design to pilfer, and it is mainly from cases of this last charac-
ter that loss is sustained.
Notwithstanding all the care of the past year, it is undoubtedly
true that if persons had been disposed to steal the books, they could
have accomplished their object. And we may superadd, that with-
out incurring an expense altogether out of proportion to the danger,
or restricting the use of the Library in a manner greatly to diminish
its usefulness, it is impossible that it should be otherwise.
54 APPENDIX.
The number of missing volumes, during the last Academic year,
is five. The number during the previous year was nineteen, several
of which were returned.
The sub-committee do not seem to have been aware that the
books in the Law Library are not only stamped with the words
“Harvard Law Library” on the back, but that such stamp is also
placed upon several of the leaves of each volume, extending through
the volume; and that this plan for the security of the Library was
adopted many years since.
The Professors have the pleasure of stating that the very serious
reduction of the number of students, occasioned by the war, no
longer continues, although the attendance at the present time is
hardly equal to the average attendance for several years prior to
1861; the whole number the present term being one hundred and
twenty-eight.
JoEL PARKER, Royall Professor.
THEoPHILUs PARsons, Dane Professor.
EMORY WASHBURN, Bussey Professor.
DANE HALL, December 36, 1863.
NOTE C. See page 46.
REPORT OF THE COMMITTEE APPOINTED TO WISIT THE LAW
SCHOOL, TO THE OVERSEERS.
To the Honorable and Reverend Board of Overseers of Harvard College.
Your Committee appointed to visit the Law School respectfully
report, that upon notice from the President of the College, they
visited the Law School on the 30th of December last. Nearly
every member of the Committee was present, and met the Pro-
fessors of the School and conferred with them upon their duties,
and the interests of the charge committed to them. While in
Cambridge the committee attended a lecture by the Royall Pro-
fessor, Judge Parker, to a large number of students, and were
entirely satisfied that both the matter and manner of it, were admi-
rably calculated to impress and improve the students who listened
to it. The School seems now to be prosperous, and your Committee
are satisfied with the prescribed course of study, and that the duties
of the Professors are most ably and conscientiously discharged.
Our attention was called by the Faculty of the Law School to
complaints made by a sub-committee of your Committee to visit the
APPENDIX. 55
Library, that books were lost from the Library of the Law School :
and we examined the rules and methods adopted to regulate the
use of the library, by the students. We are satisfied that every
proper precaution was taken to prevent loss of books, and that no
larger number was lost, than must always be expected, if books are
used at all. Your Committee would deprecate exceedingly the im-
position of any more or further restrictions upon the use of the
Library, by the students. This subject was called to the attention
of last year's Committee, and they were unanimously of opinion, that
the strictures of the sub-committee were uncalled for. and so re-
ported substantially to the Board of Overseers. Your Committee
of this year were surprised that the sub-committee of the Library
Committee should have insisted upon their strictures, against the
unanimous opinion of the Faculty of the Law School, and of the
Committee of your body appointed specially to visit that School.
At any rate, your Committee are decidedly of opinion, that it is the
duty of the Professors of the Law School to entirely disregard the
strictures and advice of the sub-committee referred to, and adhere
to the course they have adopted to regulate the use of the Law
library by the students, and took occasion to express that opinion to
the Professors. -
The reports of the Faculty of the Law School, and of the Libra-
rian of the Law Library, are herewith transmitted.
All which is respectfully submitted.
J. G. ABBOTT, Chairman,
tº behalf of the Committee.
NOTE D. See page 46.
THE share of the income from Mr. Bussey's estate, credited to
the school in 1868–69, announted to $6,543.01 ; in 1869–70 to
$8,517.65. The Corporation allowed the school in 1868–69, for
income from Mr. Royall's legacy, $575.91, from Mr. Dane's dona-
tion $1,087.50, and from Mr. Foster's legacy $218.98, instead of
the sums heretofore stated as the income from those sources. The
income from the Royall and Dane funds, accounted for in 1869–70,
was sonmewhat less ($1,537.22), but the School appears, from the
Treasurer's Statement, to have been delivered from the charge for
the College library. It can afford, therefore, to expend $1,249.77
for advertising in 1868–69, and $651.69 in the last year, – to add to
56 APPENDIX.
the salaries of its Professors, – increase its library, - and provide
for a large corps of Lecturers.
With these enlarged means, and having escaped from that mis-
chievous degree, by which it was doing something every year to
injure the profession, its glories in the future must of course eclipse
all its antecedents. -
But it is rather unseemly for the worshipper of the rising sun, at
the very time when he pays his morning devotions, to kick at him
because he did not shine with equal lustre when he set the preced-
ing evening.
REPORT
OF A COMMITTEE OF THE HARVARD CLUB OF NEW YORK
CITY ON THE ELIGIBILITY OF GRADUATES RESIDING
WITHOUT THE COMMON WEALTH OF MASSACHU SETTS TO
MEMBERSHIP IN THE BOARD OF OVERSEERS OF HARVARD
COLLEGE.
The Committee appointed at the regular meeting of
the Harvard Club of New York City of November
(oth, 1878, to report on the laws regulating the elec-
tion of the Overseers of Harvard College, with reference
to such provisions as are supposed to restrict the choice
of the Alumni to persons residing within the Common-
wealth of Massachusetts beg leave to report :
The act establishing the Overseers of Harvard Col-
lege was adopted by the General Court held at Boston,
on the 8th of September, in the year 1642. As the su-
pervision contemplated by that act still continues unim-
paired, in a primary or in an appellate form, we shall cite
at length the provisions which define and describe the
objects for which the Overseers were established, the
power and authority with which they were invested,
and the duties which the acceptance and the exercise of
the trust imposed :
“It is therefore ordered by this Court and the authority thereof, that the
Governor and Deputy Governor for the time being, and all the magistrates of
this jurisdiction, together with the teaching elders of the six next adjoining
towns, viz., Cambridge, Watertown, Charlestown, Boston, Roxbury and Dor-
chester, and the President of said College for the time being, shall, from time
to time, have full power and authority to make and establish all such orders,
statutes and constitutions as they shall see necessary for the instituting, guiding
and furthering of the said College, and the several members thereof, from time
to time, in piety, morality and learning ; as also to dispose, order, and manage
to the use and behoof of the said College and the members thereof, all gifts,
legacies, bequeaths, revenues, lands and donations, as either have been, are, or
shall be conferred, bestowed, or any ways shall fall or come to the said College.”

2
Thus it appears that there were two distinct func-
tions to be exercised by the Overseers; they were to
make all necessary orders, statutes and constitutions to
guide and further the College and its members in piety,
morality and learning ; and they were also charged
with the care of its financial possessions and opportu-
nities. The great prosperity of the College shows
with what diligence and fidelity the Overseers have dis-
charged the double trust in its broadest sense. They
have not contented themselves with making statutes,
but have promoted the interests of the College in a
thousand ways, growing incidentally out of their rela-
tion to it; they have not merely taken care of the pos-
sessions of the College, but have felt it no less their
duty to increase them. While the composition of the
Board has been repeatedly changed, the Board still
Occupies itself according to its original warrant with
doing all in its power to promote the intellectual and
material advancement of the College. There is no
reason to doubt, that it is by the active and efficient
efforts of the graduates, who have been connected with
the College by the ties of personal responsibility and
immediate interest in the capacity of Overseers, that so
much has been done to increase its educational facilities,
and secure the “gifts” and “bequeaths,” with which the
College has been so liberally endowed. At the same
time it cannot fail to be noted that the circle of bene-
factors has been for the most part confined to the
localities subject to the personal influence of the Over-
seers; and this fact very naturally suggests the inquiry
whether by enlarging the area of overseership, the
area of patronage may not be advantageously enlarged
without detriment to the cause of Piety or Learning.
The establishment of the Corporation in 1650 re-
3
lieved the Overseers of many duties which they had
previously exercised in the first instance, and in regard
to which they are now vested with an appellate juris-
diction : but for the purposes of this inquiry it is not
necessary to refer to the legislative and constitutional
provisions affecting the Board of Overseers, between
1642 and 1851, any further than they may be generally
considered in commenting on the latter act.
A very marked feature of this legislation is the great
care with which it for a long time continued to main-
tain the official connections of the Commonwealth
with the College, and preserve the hold of the State
and its citizens upon the Institution. This is very
noticeable even in the matter of the presiding officer,
it having been deliberately ordained and re-enacted
that at any legal meeting of the Board “ the Govern-
or, if present, shall preside, if not, the Lieutenant-
Governor, if present, shall preside ; in their absence,
the oldest member of the Council, present, shall pre-
side ; if they also be absent, the President of the
Senate shall preside, if present; but in his absence
also, the Speaker of the House of Representatives
shall preside, and if neither of them be present, the
greater part of the Overseers present at such meeting
shall choose a President, pro tempore, and until one
of the officers aforesaid shall be present.”
Only and hardly second to this was the tenacity
with which the clerical hold on the College was until
recently retained. By all the laws from 18 IO to
1851, the ratio of fifteen clergymen to fifteen laymen
in the Board was preserved by the most minute and
specific legislation. Until the passage of this last
act various qualifications had indeed existed at differ-
ent times, and had been repeated, emphasized, and in-
4
sisted upon. At one time the Overseers were re-
quired to be magistrates, or teaching elders, Congre-
gational ministers, then ministers of any Christian de-
nomination. There was the lay qualification, and the
clerical qualification, and the residential qualification,
and vacancies were created by expulsion for immoral
conduct, by resignation, by ceasing to have the minis-
terial relation, and by removal from the Commonwealth.
If there were fifteen clergymen in the Board, another
clergyman was not eligible; if there were fifteen lay-
men in the Board, another layman was not eligible,
and nobody was eligible who was not an inhabitant of
the Commonwealth. This matter of qualification was
getting complicated, and it required too much trouble
to maintain perfectly the lay and clerical equilibrium.
So the Legislature passed the Act of 1851.
By the first section of this act the Board, as it had
been previously constituted, was abolished. It ceased
to exist, and with it were abolished its “qualifications,
limitations and conditions of existence.” There was a
taðula rasa for the second section to operate upon.
The second section makes a slight change in the official
organization of the Board, and proceeds to say that
thirty persons thereinafter described shall be the elec-
tive overseers. The third section defines and describes
nothing but the classification of the members of
the Board. The thirty persons are left thirty natural
persons, suº juris, with no limitation, restriction or
qualification, except such as is to be derived from the
words “thirty persons.” If there had been nothing
more in the act, there would have been an end of all
qualification, save such as the good sense of the Legis-
lature might impose on their own unrestricted choice
of overseers. But the fifth section indirectly modifies
5
the third section; re-introducing the causes of vacancy
contemplated by previous acts. It provides for “any
vacancy occurring in the said Board of Overseers,
whether by death, resignation, removal from the Com-
monwealth, or otherwise, "thereby incorporating in this
act the various causes of vacancy contemplated by
previous statutes in pari materia, and authorizing, as
is supposed, the inference that this act was not in-
tended to repeal the qualifications capable of being
included within this clause. The answer to this is
that though an inference may be drawn from the terms
of the fifth section that the clerical qualification was
not intended to be repealed, nearly if not quite as
strong as the same inference in regard to the residen-
tial qualification, yet that on the whole, in view of the
unqualified use of the term “thirty persons" in the
third section, it would require the express introduction
of the words “ceasing to hold the ministerial office"
into the fifth section, to incorporate that cause of
vacancy in the act.
The omission to include it in express terms nega-
tives the inference that might be derived from the
sweeping expression “otherwise," that would seem to
draw after it all the causes of vacancy contemplated
by the previous statutes. We do not find fault with
the interpretation, we ask only that the same principle
should be applied to the act of 1865.
It was not until after the passage of the act of 1851
the people began fully to understand, and the Legis-
lature to recognize, that Harvard College had become
Something more than a merely local school, and that
even its considerable pecuniary investments in the insti-
tution hardly justified the State in continuing to em-
barass itself with the direct charge of its affairs. The
6
governmental machinery was cumbersome and clumsy,
and it was obvious that the dissolution of the connec-
tion between the State and the College was a logical
consequence of our social and political changes. A
national sentiment as distinguished from a State senti-
ment had been fostered and stimulated by the civil
war, and the demands of political interests on the time
and attention of the Legislature contributed to the
growing desire to relieve the State officers and the
State itself of duties that were regarded as unneces-
sary, burdensome, and inappropriate.
It may be remembered, moreover, that about this
time the project of a National University, which had
been strongly recommended by President WASHING-
TON, and approved by several of his successors, was
revived and largely discussed. It was urged that such
an university ought to be established at Washington,
in view of the educational facilities already concen-
trated there and capable of being utilized in the service
of such an institution. This plan was opposed by the
officers and friends of Harvard College and of Yale
College, on the ground that either of them would
furnish a more available basis for such an institution
than any new foundation. It is difficult to say how far
these considerations may have influenced the General
Court of Massachusetts or the friends of Harvard
College in shaping the new legislation, but we may
well enough imagine that they were not without their
weight. At all events, we find the subject presented
itself in such a light, that a joint special committee
of the Legislature was instructed to “consider the
expediency and practicability of dissolving the connec-
tion of Harvard College with the Commonwealth."
The joint committee considered the matter, and con-
7
cluded that such a dissolution was both expedient and
practicable A bill to accomplish this object was re-
ported to the Senate in May, 1864, and became a law
in the following year.
We refer to these circumstances not as mere make.
weights and grounds of argument, but as trustworthy
guides to the intention of the Legislature, and sub-
stantial aids to the interpretation of the important
statute of 1865. They all point to the conclusion that
it was the intention of the Legislature to withdraw the
College entirely from State connection and local con-
trol; to vest the responsibility of its government in the
representatives of the whole body of the graduates;
and to make it altogether such a national institution as
was contemplated by the Father of his Country.
To accomplish this object it was not necessary to
make any change whatever in the structure of the
Board, its distribution into classes, the official terms, or
the places and vacancies to be filled in the successive
classes. No such change is attempted in the act of
1865. But in the very first section of the act, the
Legislature proceed to abdicate their power over those
places and vacancies, to sever the State relation to
them, and to transfer the power to supply them from
a body composed of persons resident within the State,
to a body composed of persons residing in all parts of
the Union. The object apparent on the face of this pro-
vision is to nationalize the institution, and to entitle the
graduates outside of the Commonwealth as well as those
inhabiting within its limits to a representation in the
Board. On a point so important, the Legislature
would naturally leave nothing to conjecture or infer-
ence. If there were any graduates to be excluded from
the privilege of filling these places or vacancies if
8
elected, we should expect them to be in terms expressly
mentioned in the act. They are so mentioned. Car.
rying out the intention to de-localize the College, the
Legislature further provide with whom these places
and vacancies shall not be supplied, and enact that no
member of the Corporation, and no officer of govern-
ment or instruction, in said College, shall be eligible
to fill those places or vacancies. The Legislature are
laying out the work for an entirely novel Board of
electors, and they undertake to limit and restrain its
authority by saying what persons the new board shall
ſtoff elect. Did they intend any other limit or restraint
On the power of the new elective body ? Does not the
specific enumeration of these two grounds of ineligi-
bility exclude the idea that the Legislature intended
directly or by indirection to recognize any other 2 You
may not elect certain men—is not that equivalent to
saying any others you may elect?
Having thus disposed of the question of eligibility,
the Legislature proceed to give specific directions as
to the electors, and the mode of election, and as to who
shall be deemed and declared elected. The second
Section provides for the appointment of one principal,
and two or more assistant inspectors of polls, who shall
at certain hours on Commencement Day attend at a
place to be appointed by the Board, receive the votes
for Overseers, and sort and count such votes, and make
public declaration thereof, after the closing of the polls;
“ and said inspectors shall be provided with a list of
persons qualified to vote at such election, and no person
shall vote until the inspectors find and check his name
upon such list.” Such a list would contain the names
of all persons who had received from the College a
degree of bachelor of arts, or master of arts, or any
9
honorary degree, omitting members of the Corporation,
officers of government and instruction, and bachelors
of arts of the College of less than five years standing.
All persons so omitted are disentitled as voters,
and expressly or by clear implication as Overseers.
This section, which is so full and explicit as to the
qualification of voters, adds nothing to what is con-
tained in the first section on the question of eligibility.
The ballots are not required to contain the residence
of the persons voted for, and the inspector is directed
to return the names only, leaving the persons intended
to be identified by a reference to their class or in any
convenient mode. If the Legislature had designed to
invite the non-resident graduates to attend at Cambridge
to aid in creating a Board of Overseers in which they
were not to be themselves represented; if they had in-
tended that the list of qualified voters, should be any
other than a list also of qualified candidates or nomi-
nees—they would have expressed such an intention in
words not to be misunderstood. Not only have they
failed to express any such intention, but there is noth-
ing in the act from which we can surmise that they
entertained it.
By the third section the Board is merely directed to
perform certain duties which have no bearing on the
general construction of the act. The fourth section
refers to terms of Office, classes, and certain structural
arrangements of the Board. For all these we are
referred necessarily to the act of 1851, but everything
relating to the eligibility and election of Overseers is ex-
haustively disposed of in the first and second sections.
The fifth section provides that places and vacancies
left unfilled on Commencement Day shall be supplied
by the vote of the remaining Overseers. It says nothing
IO
on the causes of vacancy, though some new causes
may grow Out of the provisions of the first section,
but leaves the whole subject to the common law and
the operation of previous acts, and contains nothing
from which we can draw an inference that it contem-
plates removal from the Commonwealth as creating a
vacancy under the new system. Pursuing the main
purpose of the act, the sixth section removes from the
Board all the members who become such by virtue of
their official relations to the Commonwealth, leaving
nothing of the act of 1851 standing but so much of it
as relates to the membership of the President and
Treasurer, the number and classification of the Over-
seers, the Secretary, and the by-laws.
Apply to this act the ordinary and familiar principles
—that we are to gather the intention of the Legislature
“from the words, the context, the subject-matter, the
effects and consequence, or the reason and spirit of the
law ; ” that we are so to interpret it that its object
may rather prevail than perish ; that the expression of
certain grounds of exclusion prohibits the inference
that any other are intended ; that when restrictions
or mandates contemplated and repeated in prior acts
are omitted in subsequent acts, they are presumed to
be omitted by design ; that the later act being the last
expression of the legislative will controls the prior act
Žn pari materia, in everything which is inconsistent
with “the nature and design, the scope and object” of
the later act, no less than with its express words ; that
it is a dangerous principle to import into a statute
words or supposed intentions that are not to be found
in it; that the “true meaning of a statute is generally
and properly to be sought from the body of the act
itself” or, in other words, that every statute is its own
I I
best expositor; and that repeals by implication, though
not regarded with favor by the Courts, are oftentimes
irresistibly commended to their judgment : all these
principles are relevant to the construction of these two
statutes, and the application of any one of them estab-
lishes the result for which we contend.
The Committee are aware that this subject has been
specially considered by the Overseers, and that they
have arrived at a different conclusion from that of your
Committee. When ex-President Hill contemplated
removal from Massachusetts to Maine in 1873, he was
a member of the Board. He believed that by the act
of 1865 all the graduates were eligible to the office
except those expressly named as ineligible, and that
inhabitancy in Massachusetts not being under the act
of 1865 a pre-requisite to eligibility, removal from the
State did not vacate a seat. The question was brought
before the Board, and was submitted to a committee
of its members of the legal profession. They reported
that the act of 1865 merely provides for the mode of
filling vacancies, and that the removal of a member
from the Commonwealth vacated his seat in the Board.
This opinion they found on a “very strong inference”
that they draw from the vacancy clause in the fifth
section of the act of 1851. We annex this opinion to
Our report, -valeat guazuzuma va/ere požešć. We are proud
of our brethren who signed it, for the credit which
their professional and political eminence has reflected
on their University, but we think their work in this
instance is fairly open to two or three observations.
The first relates to the intimation that a provision
supposed to be vital to this inquiry had entirely
escaped the notice of Dr. Hill. This gentleman had
been President of the College from 1862 to 1868,
I 2
*
and during that time an ex-officio member of the Board
of Overseers; he had also been an elective member
of the Board from 1871. For some nine or ten years
it had been his duty to be familiar with the laws and
Charters which provide for the government of the
University. He was President at the time the Act of
I865 was introduced in the Legislature, he was con-
Sulted in regard to it, and was conversant with the
circumstances under which it was passed, and the ob-
jects it was designed to accomplish.
When he was Overseer, he had a little volume con-
tinually before him, containing all the instruments and
acts relating to the Board of Overseers, and in this
volume the acts in force were printed in large type,
and the acts and parts of acts supposed to be obsolete
and repealed, were printed in small type and enclosed
in brackets. Such at least is the present arrangement
of the volume, and such we presume it was in 1869.
He must have had all the legislation in regard to the
College literally at his finger ends. In his Manual he
found that most of the Act of 1851, and notably the
5th Section, was included very properly within the
marks of repeal. Is it strange that he had never im-
agined that the affirmative statement and overwhelm-
ing implications in the Statute of 1865 could be nulli-
fied by an inference from an inference lurking in a re-
pealed section of a Statute of 1851
The second observation to which this Opinion is ex-
posed is equally obvious with the preceding. We
cannot but think that it would have given a more
judicial aspect and value to the judgment of the Com-
mittee, and rendered it more satisfactory to the dis-
franchised or dis-privileged graduates, if it had pro-
ceeded from lawyers who were not members of the
I 3
Board, and if graduate lawyers not inhabitants with-
in the Commonwealth, had been favored with an
opportunity of being heard. It was not a question in
which the Overseers alone were interested, and there-
fore not a question which the Overseers alone should
have undertaken to decide. By the Act of 1865, the
Overseers are the creation of the Alumni, and on any
question arising on the eligibility of a member of the
Board, the Alumni have at least a concurrent jurisdic-
tion with the Overseers. The law decides it, but the
Overseers are not the judges of the law, any more
than the Alumni. The poll-list in our judgment, is the
register of the electors alike, and of the eligible—all
the persons whose names are upon that list are entitled
to an equal voice in deciding in the first instance a
question that neither the Alumni nor the Overseers
can determine in the last resort.
We submit that neither the inspectors nor the
Overseers have the legal right to exclude any person,
whose name is on that list, and who having received
the highest number of votes for a place in the Board,
is entitled to be deemed and declared a member
thereof. If he is to be ousted, it should be by the
Court.
But a third and more important observation called
for by their report, relates to the inadequate and dwarf-
ing estimate that the Committee place on the act of
1865. They describe it as merely providing a mode
of filling places and vacancies in the Board. We have
seen that this act, if it does anything, transfers the
Government of the College from the representatives
of the Commonwealth, to the representatives of the
graduates ; that it dissolves the connection that had
existed for more than two centuries between the Col-
I4.
lege and Massachusetts; that it excludes from ear-officio
membership the eminent executive magistrates who
had presided over the meetings of the Overseers, and
had been conspicuous at the College Commencements,
long before the Colony of the Bay had become an in-
dependent commonwealth ; that it is a writ summoning
the Alumni once a year to Cambridge for the perform-
ance of an important duty ; that it is a warrant con-
taining within itself the specification and limitation of
the authority which it avouches ; that it treats the
whole subject of electors, eligibility and elections, and
disposes of it clearly and exhaustively; that it abro-
gates in short, an existing system—and establishes an-
other system—thus creating an important era in the
history of the College —and can we take it on any
authority against Our Own conviction that an act an-
swering this description after all merely provides for
filling certain places and vacancies in a Board of Over-
seers 2
The Overseers elected under the old system repre-
sented at least all the people of the Commonwealth.
It was intended that the Overseers elected under the
revised system should represent all the Alumni. At
present the Overseers represent neither the one nor
the other. They represent only a fraction of the
Commonwealth, and only a fraction of the Alumni.
Suffolk and Middlesex practically monopolize the
Board that at one time embraced representatives from
every county in the State. The government of Har-
vard College is more narrowly localized under the
misconstruction of the Act of 1865 than it was under
the Act of 1642. Of thirty Overseers, some twenty
inhabit within sight of the State House in Boston,
and the obvious tendency of the Board in the future
is to the character of a close Corporation.
I 5
The Committee are of the opinion and report
that graduates not inhabiting within the common-
wealth of Massachusetts are eligible to fill the
places of Overseers of Harvard College ; and recom-
mend such conference and concert among the Alumni
as may secure a majority of votes for two or more
non-resident graduates as members of the Board at
the next annual election.
JOHN O. SARGENT, Class of 1830.
ALBERT G. BROWNE, 4 & I853.
CHAS. C. BEAMAN, & ( I86 I.
WM. MONTGOMERY, & £ 1867.
EDMUND WETMORE, {{ 186O.
WILLIAM E. WORTHEN, “ 1838.
FRANKLIN BARTLETT, “ I869.
FRANCIS M. WELD. & & I86O.
JAMES T. KILBRETH, & { 1863.
At the regular meeting of the Harvard Club of New York City, on Saturday
evening, March 15th, 1879, the foregoing report having been presented and read,
on motion of Mr. WILLIAM E. WoRTHEN, of the class of 1838, it was
Voted unanimously, that the report be accepted and adopted and printed.
On motion of Mr. ALBERT G. BROWNE, of the class of 1853, it then was
Voted that a committee of three be appointed by the chair to report the name
of one alumnus of the University, not an inhabitant of Massachusetts, as a
candidate for overseer.
The chair appointed Mr. BROWNE, Mr. WoRTHEN, and Mr. HENRY D.
SEDGw ICK, of the class of 1843, who reported the name of HENRY W.
BELLOWS, of the class of 1832. On motion of Mr. JoHN O. SARGENT, of
the class of 1830, it thereupon was
Voted, unanimously, that the report be accepted and adopted ; that the name
of the Rev. Dr. BELLOws be formally recommended by the Harvard Club of
New York City to the alumni of the University as a candidate for overseer at
the next commencement; and that the committee who have reported concern-
ing the eligibility of Overseers be authorized to enlarge their number at their
discretion, and instructed to take suitable measures, in the name and behalf of
the club, to promote his election.
A true copy from the records of the club. Attest,
FRANCIS M. WELD,
Secretary.
April IOth, 1879.
§
OPINION.
The undersigned, a Committee to whom was referred a letter of the Rev.
Thomas Hill, D.D., LL.D., dated June 25th, 1873, announcing his intention
to remove from the Commonwealth, and asking the judgment of the Board of
Overseers upon the question whether he may retain his office as a member of
the Board for the term for which he was elected, notwithstanding such re-
moval :— N.
* REPORT.
That by Statute of 18 to, Chapter II.4, which was continued in force by
Statute of 1813, Chapter IQ4, eligibility to membership in the Board of Over-
seers of Harvard College, was confined to “inhabitants within the State.”
That this restriction on membership continued unchanged until the Statute
of I85I, Chapter 224. In this statute no express restriction to inhabitants of
the State is made in the sections which provide for the original choice of Over-
seers; but neither is there any statement which indicates that it was intended
that persons not inhabitants might be members of the Board. On the contrary,
by the fiſth section, (which may have escaped the notice of Dr. Hill, as it is
not referred to in his communication) an express provision is made for filling
vacancies “occurring in the said Board of Overseers, whether by death, resig-
nation, removal from the Commonwealth, or otherwise,” which seems to leave
no room for doubt that under that Statute removal from the Commonwealth
would create a vacancy, and raising a very strong inference that the restriction
of choice to inhabitants within the State was not designed to be repealed.
The statute of 1865, Chapter 173, merely provides for the mode in which “the
places of the successive classes in the Board of Overseers of Harvard College ’’
created by the preceding statute, “and the vacancies in such classes shall be
thereafter annually supplied ; ” and does not make any change in the qualifica-
tions for membership, except by excluding members of the Corporation and
officers of instruction and government.
We are therefore of opinion that the removal from the Commonwealth of a
member of this Board makes a vacancy in his office as a member of the Board.
E. R. HOAR,
W. G. RUSSELL,
R. H. DANA, Jr.
October 8th, 1873.
A true copy
Attest JAMES W. HARRIS, Sec., H. U.
0.… ** (2. 2…
/* /2 2.5.
M. E. M. O I R.
NATHANIEL THAYER. A.M.
BY GEORGE E. ET, LIS.

M E M O I R
OF
NATHANIEL THAYER, A.M.
BY
GEORGE E. ELLIS,
[REPRINTED FROM THE PROCEEDINGS OF THE MAss ACHUSETTs
HISTORICAL SOCIETY.]
CAMBRIDGE :
J O HN WILSON AND SON.
Cântigersity, 33rcăş.
1885.
fäaggachusetts #istorical $ociety.
AT the Monthly Meeting, March 8, 1883, -
Resolved, That the Massachusetts Historical Society have heard
with deep regret of the death of their distinguished and respected
associate, NATHANIEL THAYER, Esq., and that a Memoir of him
be prepared for some future volume of our Proceedings.
Resolved, That the Memoir of Mr. Thayer be committed to
Dr. GEORGE E. ELLIS. *
M E M O I R.
THE ancestors of the Thayer family in Massachusetts came
here with the earliest colonists from England. We find
Thomas Tayer, his wife Margerey, and three sons, settled in
Old Braintree about 1630. He was accompanied, or soon fol-
lowed, by his brother Richard. They came from Thornbury,
Gloucestershire, England : the name is found on the old
records of the place, but is now extinct there. The grand-
children of the first Thomas inserted the letter h in the name,
which the descendants have ever since adopted. Like so
many of the original New England families, the branches of it
became numerous and fruitful, extending by marriage into
wide genealogical connections." It is safe to say of all such
families of our early stock, with their branches and affiliations,
that in their generations they present us the names of service-
able and honored persons—often conspicuously so—who have
filled all the varied callings, occupations, and places needed,
and open to those fit for them, in a thrifty and prosperous
community, steadily advancing from its days of small things,
by frugal living, laborious toil, and ambitious enterprises, to
the higher planes of wealth, culture, and refinement. Hus-
bandmen and Indian fighters; ministers, schoolmasters, and
* Family Memorial, part ii. Genealogy of Ephraim and Sarah Thayer, by
Elisha Thayer of Dedham : Hingham, 1835. Memorials of the Thayer Name from
the Massachusetts Colony of Weymouth and Braintree, Richard and Thomas
Thayer and their Descendants, by Bezaleel Thayer: Oswego, 1874. N. E. Hist.
Geneal. Register, vol. xxxvii. p. 84; and the number for October, 1883, p. 413.
4
physicians; blacksmiths, millers, carpenters, craftsmen, and
mechanics, plying every tool; members of the General Court
and selectmen ; military and judicial officers; and politicians,
equal to dealing with national interests, – all these appear,
in picturesqueness, variety, homely utility, and grave dignity,
in our genealogical volumes.
The Thayer family, instead of being exceptional as for any
limitation, has exhausted and enriched the list. Two of its
members are incidentally worthy of special mention. To one
from this original Puritan stock belongs the distinction of
having been the priest of the first regularly organized Church
Society of Roman Catholics in Boston. This was John Thayer,
a son of Cornelius Thayer who was a brother of the great-
grandfather of Mr. Nathaniel Thayer. John Thayer, though
his parents were of Braintree, was born in Boston, May 15,
1758. Though not a graduate of the college, he was trained
for the Congregational ministry, and served for a time as chap-
lain to Governor John Hancock. While travelling in Europe
in 1781–83, he accepted in Rome the authority of the Church,
and was baptized in its communion. After pursuing his edu-
cation in the Seminary of St. Sulpice, in Paris, he was or-
dained as deacon and priest, returned to this country laden
with books, and was sent by Dr. Carroll of Baltimore on a
mission to Boston in January, 1790. Political disturbances at
home had driven hither at the time a few educated French-
men, who, with some Irish and other foreigners here, made up
a small congregation. Such disciples had heretofore been
ministered to only by two priests transiently visiting Boston.
Notwithstanding some manifestations of natural disappro-
bation, Father Thayer found friends and helpers among Prot-
estants. He gratefully mentions the kindness of the Customs
officers in admitting his books and church furniture free of
duty. The disused Huguenot Chapel in School Street was
fitted up for his use, and there he faithfully and peacefully
performed his priestly offices. He sustained his part in some
5
controversial warfare through the press. He afterward did
missionary service in Kentucky, and died in Limerick, Ireland,
1813.1
Another of the Thayer family, born in the last century,
deserving special mention, was Sylvanus Thayer. He was
born in 1785, in Braintree, where he died, Sept. 7, 1872. He
graduated from Dartmouth College in 1808, “the most brill-
iant boy in his class,” and immediately entered the Engineer
Service of the United States, being Chief Engineer in the last
war with Great Britain. He was the most efficient organizer
of the United States Military Academy at West Point, and
from 1817 to 1833 its highly honored and distinguished Super-
intendent. After his resignation, which was with difficulty
allowed, he had charge of the fortifications in Boston Harbor.
At his death, from the savings of a frugal life he left a gener-
ous sum for building and endowing a free academy in his
native town. A noble monument was reared and dedicated
to the memory of Brigadier-General Sylvanus Thayer at West
Point, June 11, 1883.”
Dr. Oliver Wendell Holmes, in his tribute before this
Society to Ralph Waldo Emerson, said: “A New Englander
has a right to feel happy, if not proud, if he can quarter his
coat-of-arms with the bands of an ancestry of clergymen, as
representing the true Brahminism of New England.” This
remark has often found illustrations of its truth in the now
voluminous pages of our published Collections and Proceedings.
1 See Pattee’s “History of Old Braintree and Quincy,” p. 272, where are given
two letters of Father Thayer. “Memorial History of Boston,” vol. iii. chap. xiv.
In that pleasant, gossipy volume, “Recollections of Samuel Breck,” beginning a
few years preceding the war of our Revolution, the writer mentions an interview
which he had with Thayer in his college in Paris in 1787. Breck himself, tempo-
rarily at least, avowed himself a convert to the Church, and in that character
promised assistance to Thayer when he should reach Boston on his mission. On
his arrival Breck was faithful to his promise, though in the mean while he says
he had relapsed into Protestantism. Pp. 84, 116, 117.
* An admirable biographical sketch of the character and career of this honored
man was delivered on the occasion by his devoted friend, General George W.
Cullum.
6
These abound in memoirs of men of high eminence and service
in their several generations, whose lineage and training con-
nect them with our country parsonages. We may safely affirm
that a considerable majority of those who have been conspicu-
ous, honored, and successful in all the varied ranges of life in
New England, during its past centuries and till quite recent
times, had near kinship with the ministerial profession. It is
interesting to note this element in our local history, because
Some marked and rapid changes among us, in circumstances,
conditions, and relative professions, indicate that what was so
characteristic in our earlier generations is not likely to be per-
petual. The New England parsonage is already an antiquity.
The relative position, the rank, the standard of character,
acquisition, and social and professional influence of its occu-
pant, the range of its hospitalities, the quality of its most wel-
come guests, if not all reduced in measure and dignity, are not
so distinctive and effective as once they were. The tone, the
discipline, the conversation of parents and guests in those
favored homes were a good part of the education of the chil-
dren, and were peculiarly favorable and stimulating. Graces
and virtues, ambitions and energies, were there taught and
tested such as insure success in all their higher exertion.
Where any quickening capacity, genius, or intellectual endow-
ment had shown its germ in the parent stock, paternal or
maternal, in the country parsonage, the law of heredity insured
its presence in the descendants.
Nathaniel Thayer, a brother of the priest already men-
tioned, was born in Boston, July 17, 1710. He married here
Ruth, a sister of the Rev. Dr. Andrew Eliot, minister of the
New North Church in Boston from 1742 till his death in 1778.
He remained in the town during its occupancy by the British
army in our Revolutionary War. The eldest child of these
parents was the Rev. Ebenezer Thayer, born in Boston, July 16,
1734; graduated at Harvard College in 1753; and settled as
the minister of Hampton, New Hampshire, from 1766 to his
7
*~
death in 1792. His wife, Martha Cotton, was a daughter of the
Rev. John Cotton, of Newton, and a direct descendant of the
minister of the First Church in Boston. These were the parents
of the Rev. Nathaniel Thayer, D.D., who graduated at Harvard
College in 1789, and was settled in the ministry at Lancaster,
Massachusetts, in 1793, till his death in 1840. He married
Sarah, a daughter of the Hon. Christopher Toppan, of Hampton.
They were the parents of eight children; the seventh of which,
Nathaniel, the subject of this memoir, was born in Lancaster,
Sept. 11, 1808. He would have regarded any memorial sketch
of himself, however brief, as wholly defective if it failed to
pay some adequate tribute of high respect and honor to his
father, for whom his filial reverence and fondest attachment
all through life manifested themselves so tenderly and so
attractively; holding him by still living obligations long after
his father's decease, and prompting and directing a conspicu-
ous object of his munificence, as well as countless deeds of
benevolence.
Dr. Nathaniel Thayer and his home in Lancaster answered
to the type of country minister and rural parsonage which
were had in view in a preceding paragraph. They are pleasant
realities of our New England past, to be reproduced no more.
Here was a delightful town of hills and valleys, with a mean-
dering river of two branches, and many brooks and ponds,
thirty-five miles from Boston. It was the fairest among the
similar villages and towns which surrounded it. It throve by
all the industries of farm, manufactory, and work-bench. Its
homes were scenes of domestic duty and comfort. Its popu-
lation, during the latter part of Dr. Thayer's long ministry of
nearly half a century, was about two thousand. These all
were his parishioners, “his flock.” There was in the town
but a single religious society, but a single centre for religious
instruction and worship, — twice on the Lord’s day, with an
occasional lecture. In later years there was found necessary
in Lancaster, as in most of our populous towns, a public farm,
8
with proper buildings, as a refuge for a few unfortunate, im-
poverished, lonely, or decrepit persons. These, too, were
Dr. Thayer's parishioners. At due intervals, on closing his
afternoon duties in the meeting-house, he would announce
that services would be immediately held at this refuge, whither
he and his wife would drive on the errand of sympathy. The
condition of each and of all his parishioners was intimately
known to him. He had their respect and confidence, and they
profited by his word and deed.
Dr. Thayer must be remembered in connection with a class.
of his brethren in the ministry whose position, circumstances,
views, and duties were like his own, – sole ministers in single
towns, with no sectarian rivalry or discord near them. They
retained what was best — indeed, they aimed to retain all
that was good—in the traditions, the responsibilities and the
dignities of their profession. They respected their lineage,
and recognized an historic trust in the Christian religion and
its ministry. Those who were nearest in opinion and sym-
pathy with Dr. Thayer had softened, modified, liberalized.
some of the tenets of their traditional creed, without losing
hold or heart for Christian verities or sanctities. Their
preaching was didactic and hortatory, concerned with the
duties and virtues and graces of daily and domestic life, with
lessons that recognized its solemnities. They kept a watching
and a cheerful eye on the children growing up in the house-
holds. They were the guardians, supervisors, constant visitors,
and examiners of the public schools, and made friends and
found friends in good books. There was nothing priestly,
sacerdotal, scarcely anything ecclesiastical, in assumption or
function, in their offices. “Ministers of the word '' was their
preferred designation; and instead of a gradation of hierarchi-
cal titles, they put themselves on an equality of discipleship
with each other and their people as “brethren.” Harvard
College, the Alma Mater of all of them, was the centre of their
intellectual and professional interest, as the legacy of English-
bred scholars, their fathers.
9
The special friends and intimates of Dr. Thayer, in college
or later, were men of an honored and cherished remembrance :
President Kirkland and William Emerson, his classmates ;
Thatcher, Freeman, and Lowell of Boston; Holmes of Cam-
bridge, Professor Ware, Osgood of Medford, Bancroft of Wor-
cester, Ripley of Concord, and Allen of Northborough. He
held the place of honor in his ministerial association. Before his
settlement at Lancaster he had been an instructor at Harvard,
had been invited to the society in Church Green, Boston, and
had been a private teacher in the family of Colonel Timothy
Pickering, Secretary of War and of State. While on a jour-
ney for his health, Dr. Thayer died at Rochester, New York,
June 23, 1840.
The other children of the family who lived to maturity—
with whom the subject of this Memoir grew up, all being his
elders, some of whom will be mentioned again — were : Mar-
tha, who married John Marston, Esq., United States Consul
at Palermo, Sicily; Mary Ann ; John Eliot; and Christopher
Toppan, for twenty-five years minister of the First Church in
Beverly. These are all deceased.
The tenure of office for a minister in Dr. Thayer's time was
for life. If age or infirmity disabled him for duty, he was
provided with a colleague. Dr. Thayer himself had sustained
that relation for more than two years with his predecessor,
who died at the age of eighty, after a service of forty-eight
years. The line of faithful village pastors in Lancaster began
in the early days of the colony, and amid the perils and deso-
lations of Indian warfare. The well-known narrative of the
wife of the first minister, Mrs. Rowlandson, of her captivity
by the Indians in their disastrous attack on the town in 1676,
when the fortified parsonage and most of the humble cabins
in the settlement were burned, and the place for some years
abandoned, was one of the New England classics of the
period." Dr. Thayer's parsonage was near the site of this
1 Mrs. Rowlandson's Narrative, which had appeared in eleven editions — in
another one, printed in 1828, was illustrated with valuable notes by Joseph
2
10
Wrecked home of his predecessor. His early years of service
were in frugal days of simple living, before the multiplication of
appliances and luxuries. His salary for his whole ministry
of nearly half a century did not amount to half that number
of thousands of dollars. A farm and a wood-lot, with some
slight patrimony, assured him all the conditions of comfort and
competency. Like all his ministerial brethren, he sent one son
to college, and would doubtless have sent them all, had they
desired it. Like most of his brethren, likewise, he found in
the mother of his children one of those admirable women, fit
not only to aid, but to prompt every wifely and maternal
obligation in domestic and parental duty. Those ministers'
wives, fully as much as their husbands, were the property, for
all excellent service of interest and oversight, of their parish-
ioners. In dignity and graces, in culture and accomplish-
ments, and in all exemplary qualities for the home and for
social relations, Mrs. Thayer was the crown of her husband
and the revered and beloved guide of her children.
It was in such a home and with such guardians that the
subject of this Memoir was trained to manhood. That he
was a healthful and a happy boy, of rural blood and fibre,
acquainted with farm-work and fond of roaming in the
woods, and a genial companion of those who were growing
up around him, will appear when a later reference is made to
his strong attachment to his native place and its people. In
his youth the town had many citizens and families of comfort-
able resources, intelligence, and culture, and in professional
service. As a matter of course there was an academy, and
teachers of the highest qualities, among whom it is enough to
mention such afterwards distinguished men as Jared Sparks
and George B. Emerson. Mr. Thayer enjoyed peculiar ad-
Willard, Esq., of Lancaster — is the earliest in the series of such relations of cap-
tives taken by the Indians, who afterwards escaped or were ransomed. The
savages, to the estimated number of fifteen hundred, led by King Philip, assaulted
and destroyed the rural hamlet, Feb. 10, 1676. Her husband had gone to Boston
at the time of the assault to procure aid for the settlement. She was in captivity
about twelve weeks.
11
vantages in his relations to his teachers, because of their
special intimacy at the parsonage. Each passing year brought
to that centre of the best influences a succession of guests
and visitors, from whose conversation and manners there was
much to be learned by young listeners and observers. The
intimates of Mr. Thayer all through his life were always im-
pressed by the signs that though the tenor and occupations of
his business activity drew him away from the pursuits of lit-
erature and science, he was ever an intelligent and apprecia-
tive companion of the foremost and most accomplished masters
in those pursuits. His munificent patronage of literary and
scientific men made him essentially a fellow of them.
His brother John Eliot Thayer, five years his elder, had
preceded him in going to Boston to enter upon a business
life. The capital of both the brothers was integrity and
capacity. To these, largely helped indeed by signally favor-
able opportunities, judiciously improved, they were indebted
for a wonderful success, such as is gained only by the few,
while the many fail in full or in degree. When Nathaniel
Thayer went to Boston, his main purpose first was to secure a
business training. This he found, first in a clerkship, and
then in a partnership in mercantile firms. From the first he
was choice and careful in forming his social relations, and in
prudential and conscientious watchfulness of character. He
attached himself to the ministry of the Rev. Henry Ware, Jr.,
minister of the Second Church. His name appears on its
records as sharing in its works of religion and benevolence,
His brother John having established himself successfully as a
banker and broker, with the prospect of a steadily extending
business, received him into partnership in 1834, under the firm
of John E. Thayer & Brother. The connection continued
till the death of the elder in 1857. The acquisitions of the
firm and the property which accrued to the survivor were
large for the date and the then existing state of the business
world. They were small, however, compared with those which
12
afterwards, in the rapid development of the material interests
of the country, were gathered by the younger brother. His
success was so signal, the means of it were so connected with
the development of the prosperity of our whole country, and
the generous use which he made of it was so beneficial to this
community, as to call for some recognition here of the high
reponsibilities of men of wealth.
Mr. Thayer left at his decease the largest fortune that had
ever been accumulated in this city or State. There may have
been a single exception to this in the case of an individual who
had removed from this city to another State before his death.
If Mr. Thayer had been told at his start in life that such
would be the result of his business activity, he would have
marvelled at, if not mistrusted, the prophecy. There have
been cases in which bold and keenly calculating men have set
before them that aim of supreme success in accumulation,
and, keeping it hopefully and resolutely in view, have wrought
earnestly to accomplish it. Probably, however, the idea had
never presented itself consciously to the mind of Mr. Thayer.
His temperament and views of life were not in harmony with
it. His kind and lavish generosity and munificence in giving
would alone distinguish him from those who, while always
seeking for more, keep a close hold upon what they have won.
Mr. Thayer's fortune was the growth of natural processes; it
was largely the accretion of his latest years, an accumulation
on itself, from reproductive seed and harvests. There is,
therefore, an historical interest, apart from its individual bear-
ings, in this instance of the growing up of a vast fortune in a
thrifty and exceedingly prosperous community. Indeed, the
whole subject of the development and accumulation of wealth,
in lesser or in greater volume, in this particular community car-
ries with it much that is of peculiar interest and importance
in any historical review of the economic progress of this sec-
tion of our country in its relations to the whole of which it is
so prospered a part.
13
We may trace in a series, through the two and a half cen-
turies since the region around us was a wilderness, the sources
and means by which alike a general accumulation and enrich-
ment of property for all, and the towering fortunes of indi-
viduals have accrued here. The first method in the series
by which our whole local community and the most prospered
individuals in it have been enriched, was by commercial and
mercantile enterprise. In fact, for more than a century this
was the only agency for our development and improvement.
It began with the first settlement of the colony, in inter-
changes by the high seas of the products of the wilderness
and the fisheries for those of the West Indies, and it steadily
expanded into a world-wide traffic over all oceans. It was
the most generous and healthful, as well as the most profit-
able and rewarding of all the means of thrift. It promoted
a friendly intercourse between widely severed peoples, and
an exchange of necessities and luxuries. It employed ship-
builders and riggers and other craftsmen, and trained a race
of able and accomplished seamen. It opened rills from the
ocean which bore comforts and valuable appliances to homes
deep in wildernesses.
The second agency in historic course for the development
and enrichment of our community was by great manufactur-
ing enterprises, promoted by joint capital. These also made a
large general distribution of the means of comfort and luxury
among the whole community, while the largest gains of wealth
from them accrued to a comparatively few favored individuals.
Incidental to the development of these industries were the
inventions and discoveries, by men of practical skill and me-
chanical genius, of an infinite and marvellous variety of devi-
ces, tools, implements, methods, processes, and combinations,
most of which, by our patent laws, could be turned to se-
curing vast profits. The Patent Office at Washington shows,
On its crowded tables and in its cases, the gatherings, in an
amazingly miscellaneous collection, of all these ingenuities and
14
devices. Large fortunes have been secured to individuals by
their patented ownership of some implement, process, or combi-
nation, some stupendous machine, a tool, or an application of
inventive mechanical skill in some trivial instrument for facili-
tating the homeliest forms of labor. Between reaping and
threshing machines, and sewing machines, for the vast fields
of the prairies, and the toils of the seamstress in millions of
households, come in somewhere in the series the apple-parer
and the little implement by which blinded eyes may thread a
needle. The telephone bears a similar relation to these ingenui-
ties to that which the century plant bears to garden flowers.
And for each of these myriad devices either the inventor him-
self, or another who shows equal adroitness in appropriating its
value, turns a fortune. Again, in the rapid development and
enrichment of a community like our own, the extraordinary
appreciation of value in parcels of real estate, with wise invest-
ment of proceeds, has been of large profit to favored ones.
But all the means and sources for the accumulation of
large wealth by individuals in this and some other cities of our
country, which have been mentioned, have been comparatively
moderate in their results, in view of those which have accom-
panied the vast operations of the banking and brokerage busi-
ness consequent upon the introduction of the railroad system
for travel and traffic over the ever-extending expanses of our
territory. Pecuniary wealth has accrued here from the pro-
cesses by which all kinds of material wealth have been devel-
oped. After the first third of this century had passed, the
successive longitudinal lines which have in turn marked for
us what is called the “West had begun to disclose their
vast resources and capabilities. In turning these to use, with
all the incidental advantages of improvement and intercourse
which would follow, everything depended upon facilitating
development and communication. The very richness of the
soil of those regions impeded and presented obstacles to the
turning of its products to marketable profit. The laden carts
15
sunk to the hubs of their wheels in the loamy mould. For a
large part of the year the abounding rivers and lakes were
not navigable. The railroads offered their promise of relief
and profit just at the right time. But there was an inter-
posed condition still to be met; and as it was one which in
the way of bargain offered equal advantages to the two parties
concerned, it was readily provided for. The East and the
West were to be alike benefited by the opening of intercourse
and traffic between the two sections of the country, and both,
therefore, were bound to furnish the needful means. As the
brothers Thayer were so largely, intelligently, and profitably
concerned in the legitimate and wise enterprises having in
view these ends, a reference to them is quite in place here.
If either of them had had leisure from their busily occupied
lives to have turned the entries in their ledgers into historical
narrative, he might have written for us some very instruc-
tive chapters upon the development of our country. The
West at the time was not rich in pecuniary capital, for which
it had to look for loans from the East. The earliest of the
loans advanced by the East for opening railroads at the West
were legitimate and judicious, and proved profitable to the
investors. Road-beds were graded, constructed, and ironed
for the most part by the combined resources, small or more
considerable, of the owners of territory on their route and at
their termini. These resources, however, were exhausted be-
fore the necessary rolling-stock, repair-shops, and stations were
provided for. As soon as the roads could come into opera-
tion, returns would steadily come in in increasing volume.
The parties most interested proceeded to borrow what was
still needed by bonds pledging all the property and the need-
ful portion of the income of the roads for security of princi-
pal and interest of the loan. These bonds, sold in large
blocks to capitalists at a discount, enabled them to distribute
them at a premium ; and all who were concerned in these
honest dealings received a proportionate advantage. But after
16
the mischievous fashion of our country — and of all other
countries, according to their opportunities — of overdoing and
of misdoing in such matters, elements neither judicious nor
legitimate soon obtruded themselves in these transactions con-
nected with the constructing and mortgaging of railroads.
Rival enterprises, with their jealousies, sharp schemings and
unscrupulous or hazardous manoeuvres, very soon came in to
pervert, embarrass, or bring under distrust this honest and
safe method of business. Fraud and folly were sure to assert
their places in the hands of avaricious or reckless men. The
proceeds of the sale of bonds or mortgages were used in-
stead of capital stock for the construction and equipment of
roads, and thus were made the sole security, so far as they
were any security at all, for loans on what had only an im-
aginary existence. The risks which trustful investors thus
hazarded had in most cases only results of disaster. Only
judgment, caution, and even patient waiting for the deferred
returns from really wise and honest schemes, could secure
those who exercised sound discretion in these ventures.
It is to the “operations,” so called, connected with the pro-
cesses and contracts which have thus developed the resources
of our country, that we are to trace the accumulation of the
vast and seemingly incalculable fortunes gathered by indi-
viduals, mostly within the last thirty or forty years. The
satellites attendant upon the original, more responsible princi-
pals in these transactions have turned them to account in in-
cidental ways, the most noteworthy of which is known under
the technical term of “cornering.” If the writer — not an
expert — understands its signification, it means the securing,
or at least the attempting to secure, the sole mastery of some
form of stock or some product. The writer once had pointed
out to him, among the fashionables on the avenue at Newport,
an individual distinguished as having “cornered all the lard
in the country.”
The class of men, mixed in all the degrees and shades of
17
integrity, intelligence, shrewdness, capacity, nobleness, and
less reputable qualities of character, who are concerned in the
various lines of business just referred to, are designated by
the comprehensive epithets of “bankers and brokers.” They
are as essential and as useful in our prosperous communities
as is a system of water-works, with its contributing springs
and water-courses, its reservoirs and its distributing and ser-
vice pipes. They gather and they divide. They make what
is of value here available in any part of the globe, either
through the medium of a piece of paper or by a message sent
under the ocean currents. Furnish them with seed that has
life in it, and they will anticipate for you its deferred harvest.
Like the clouds which retain the gathered vapors of the earth,
while sometimes chargeable for droughts or freshets, they hold
in control the floating wealth of a people ; and an ideal theory
would make every one a sharer in it.
Of the risks, mischances, and catastrophes attendant upon
the “operations” just referred to, there is no occasion or place
for mention here. One might compare the disasters and
wrecks that have followed some forms of speculation on land
to those which occur on the ocean, only we should need to
substitute human for elemental agencies. Of the schemes
which have been devised in fraud or folly, or those which, by
individual or combined greed, have used the community and
the rights of all as puppets, and of those which, on occasions,
in their exposure and general ruin have shaken confidence in
all business enterprise, we have had a woful instance, sufficient
as a warning for all time, in the trick played upon so many
victims, but notably upon the victorious leader of our patriot
armies and the chief magistrate of our country.
It is a relief to turn from a passing reference to these abuses
of a needful and honorable method of business, to recognize
the success in it of the brothers Thayer. As the scope of
transactions and the volume of enterprises extended in the
charge of the surviving partner, the fluctuations and uncer-
tainties attendant upon them involved risks, not only for
- 3
I8
Mr. Thayer himself, but for those who followed his lead or
judgment, which certainly was not infallible. It is not for
the Writer of these pages, unskilled or incompetent in such
matters of business, to make statements or comments on Mr.
Thayer's personal transactions, or on those which he shared
with others, in the large enterprises, often complicated by
uncertainties and by rival schemes, in the development of our
vast railroad system. There were many who profited largely
by their participation in them with him. Some of these, of
course, had to share the disappointment or loss of occasional
temporary or permanent defaults, and when unable or disin-
clined to wait for deferred results, – which Mr. Thayer confi-
dently, and, as it generally proved, justly believed would be
Satisfactory, — forgot former obligations to him.
Of one fact incident to investments where the risks run
parallel with large promised or expected returns, the writer
has personal knowledge. Very many of the societies holding
funds for our numberless charitable organizations, while always
safely depending upon him for most generous gifts, naturally
sought to avail themselves of his financial skill as their treas-
urer. He accepted many such trusts. In every case the
funds increased largely in his hands, as he invested them in
securities which his judgment approved, and to which he com-
mitted his own property. When, as occasionally happened,
there was a default in the periodical return from one or an-
other of these investments, he would pleasantly drop the
remark, “I have so much of this that I may as well have
more,” and assuming the obligation he charged himself with
the full sum in his account. And when he made over any
such trust, his successor received only the most satisfactory
and well-certified securities.
It is more within the province and to the purpose of the
present writer to show how the wealthiest of our citizens used
the wealth of which, as he well said, he was simply put in
trust, not in the absolute ownership. The accumulation dur-
ing the last few years of enormous fortunes by individuals
19
favored in the general enrichment of our country, has opened
many discussions, some of which are of the placid sort of quiet
moral essays, and others of which are portents of communism
and social convulsion. The common text of these discussions
is, that the whole community has a claim upon a partition of
the vast hoards which have been accumulated by individuals.
Nor will any generous and right-minded person dispute that
general statement, if he is permitted to make certain limita-
tions and conditions. But it is spoken freely and boldly now
as true and reasonable, when wholly unqualified. The public
demand on the estate of a rich man after his decease is well-
nigh as exacting as is that of the assessor of taxes during his
life. When, in the publication of the probate on his will,
which often accompanies his obituary, we read, “There are
no public bequests,” the sentence is intended to signify the
opposite of a benediction. That great constituency which is
served by the newspaper expects to be informed, in all such
cases, of generous distributions among good objects. Hap-
pily, there is more than one ground on which this expectation
proceeds. It is prompted, if not justified, by the long and
splendid succession, in this community at least, of munificent
bequests left by men, not wealthy by the present standard,
for endowing the almost numberless objects and institutions
among us for all the noble interests of humanity. If only the
teaching by such examples was the ground of public demand
or expectation of like generosity, it would stand approved.
If one should examine the treasurers’ books of our various
corporations and trusts, to gather from them the gross sum of
what is now held by the dead hands of public benefactors for
public uses, he would learn an impressive lesson. Indeed, some
grievances have already found expression over the amount of
such property that is exempted from taxation to increase the
public burden. It is also a matter of wonder that while States
and municipalities are incurring vast debts to be paid by pos.
terity, we are relieving it of the duties of charity and mercy
by large endowments of benevolent institutions.
20
There is, however, quite another ground than the examples
of generosity in previous bequests on which rests the popular
expectation — we may well call it the popular demand—that
the estates of opulent persons should, before or after their
decease, be in part distributed to objects of general improve-
ment. It is observable by all who mark the tone and tenor
of popular discussions, the rhetorical harangues of reformers,
and the abounding essays upon exciting social problems, that
the spirit of one type of communism among us has been inten-
sified by the accumulation, within the last score of years, of
gigantic fortunes by a few individuals. Heretofore the public
was content to rest its expectations of generous bequests for
its benefit upon the force of the emulation of others prompting
a following of the examples of those generous benefactors
who had bestowed their wealth among so many noble objects.
But the demand to which we are now referring is of a more
imperious tone. It seems to justify itself by pointing to the
facility and the means by which stupendous fortunes have
recently been acquired as involving a kind of rapacity and in-
justice, to be redressed only by a generous partition of the
heaped-up hoards. In the obituary notice of a deceased mer-
chant prince we used to read the stereotyped form of words,
“He acquired his wealth by industry, sagacity, and strict
attention to business; ” but it is realized in our times that
this does not tell the whole of the case as the eyes of keen ob-
servers view it. Our incipient communists argue in this wise:
The attainment of enormous wealth by a few individuals in
communities where there are large masses of indigent and
straitened people, proves that they have turned all the re-
sources and opportunities around them to their special service
and benefit. They have seized the lion's share. The bones
and muscles of vast numbers of humble toilers, men and
women, are wrought into the gains of private millionnaires.
Luck may be an undefined, but is still a positive element in
their success. They must not only have exercised sharpness
and keen calculation in their secret enterprises, but they have
21
also assessed the common toil, and all the activity and appli-
ances of the whole world of life around them, in the products of
the soil, the factory and the corporate agencies. The largest
fortunes have been piled up by those who seem only to have
been passing “paper’ through their hands, with none of the
difficulties and frugalities of labor. To those whose toils are
hard and whose gains are slow, and whose materials are the
substantial things of product and fabric, there seems some-
thing like magic or conjury in these paper manipulations of the
broker or the banker, wrought in a luxurious office, with the
agency of stock boards, telegrams, individual and combined
speculations, and the technical terms of a trade of “bulling
and bearing ” wholly unintelligible except to the initiated.
To the outside observer these manipulators do not appear to
add to the real wealth of the world as much as does one who
makes a pair of shoes, or even the pegs for putting them
together.
Those who see and reason only thus may perhaps be easily
led to realize how few succeed, and how many go down, fevered
and crushed, in the wreck of these speculations. But this
fact only makes them the more pertinacious in insisting that
the few who do succeed, and that superbly, have merely got
so much more exorbitant a share out of the common treasury
of humanity. It is little to the purpose to suggest to these
incipient communists what large part these schemers and
speculators have in developing the latent wealth, the unused
resources of a country, and how many of the methods by
which an individual wins a million of dollars may accrue to
the benefit of a million persons of the present or a coming
generation. The free and bold discussions which are going
on around us seem to carry with them intimations that the
way in which stupendous private fortunes are turned to ac-
count here, whether for private or public ends, will have more
to do in deciding many threatening social problems of our
times than will any other single element the working of
which we can now trace. We are warned that the thicken-
22
ing masses of toilers, and even of idlers, among us will not
long quietly look on while a few roll up their hoards from the
common fund of humanity. The spirit, the life, and the
beneficence of such a millionnaire as Peter Cooper, if they
could be made serviceable, not only as an example, but with
the stamp of obligation, would furnish a stronger breastwork
against communism than all conservative rhetoric and all
police appliances.
It is agreeable to turn away from these menacing claims
upon the large estates of the opulent, and to recognize as we
may the sense of responsibility in some of the possessors of
great wealth, like the subject of this Memoir, who find their
happiness in discharging their duty by its generous distribu-
tion. Far better is it that this spirit should prompt a willing
benefactor than that he should be teased or intimidated into
parting with anything that he can call his own. It is observ-
able that the hints and rude reminders which the newspapers
and public declaimers address to the millionnaires of our time
are not always graciously received. Those who are thus chal-
lenged plant themselves on their rights. There is something
irritating to the less noble-minded of our rich men in being
made to feel that the whole community is waiting in expec-
tancy as for a division of spoils. The legal heirs of a rich
man also are apt to regard his property as their patrimony.
There is a marked characteristic of our times connected with
the vast increase of wealth, the aspect of which is very inter-
esting. On many grounds we may call our era one of general
benevolence, of generous and lavish giving. Those who have
the means of knowing and observing what is going on pub-
licly and privately around us might infer that we have a
considerable number of persons, philanthropists and schemers,
who are plying their ingenuity in devising objects and occa-
sions for assessing a class of the community for daily contri-
butions for a most miscellaneous mass of uses, most of them
self-approving, though some may be fanciful. Institutions,
colleges, libraries, hospitals, statues, testimonials, and memo-
23
rial tributes, funds for the relief of sufferers by famine, flood,
fire, earthquake, and pestilence, have their solicitors on every
hand and in every place. The shrewd among these solicitors
are curiously wise, through experience, in judging whether
an appeal for this or that object had best be made at places
of business, in homes, or in churches, of men or of women,
through public meetings or by quiet perseverance. The labor-
saving of these canvassers have learned to provide themselves
with lists from the papers of “those who are in the habit of
giving,” instead of taking their chance in a general and hap-
hazard tour of solicitations. Under these circumstances it is
not strange or unreasonable that some persons of wealth and
of a liberal spirit should be annoyed by these incessant de-
mands, and should decline to meet some of them at the risk of
being reproached for stinginess. We are reminded also that
it is neither in good taste nor right to pronounce strong en-
comiums even upon the most generous who give out of their
abundance, inasmuch as they thus deprive themselves of not
a single luxury, while generous giving purchases them a new
pleasure in repute. Yet, while the recognition of generosity
in rich men may not be eulogistic, it should be responsive and
appreciative on good reasons. Three of these reasons are
strong ones. First, there are men of wealth who repel all
these demands upon them in life, and in death leave “no pub-
lic bequests.” Second, if, as is said, the passion for gaining
and keeping grows by accumulation, it is creditable to those
who freely part with large sums that they resist this passion.
And third, it is by the munificence of men of wealth that
many noble enterprises and institutions of the highest public
value, which may not legally be initiated or maintained by a
tax or a draft on the treasury, have been planted, fostered,
and endowed among us. The direct gifts to Harvard College
from the public treasury, from its foundation till such dona-
tions ceased, amounted to a quarter of a million of dollars,
besides exemption from taxation. Its noble accumulations
and endowments, halls, libraries, and apparatus, and vested
24
funds, represent hardly less than ten millions of private gifts.
While we are restive under the burden of taxation in this
city, we may remind ourselves that the sum of it is well
balanced in amount by the income of funds munificently given
to support institutions in whose privileges we all share.
There is an alternative of methods by which our rich men
have recognized their obligations to this community and to
many benevolences beyond it. One is by bequests to take
effect when they part with all they have. The other is by
anticipation during their lives. Mr. Thayer felt profoundly,
and cheerfully recognized, the responsibility and obligations of
wealth. While he determined to leave to his heirs the means
of imitating his own generosity, instead of so distributing his
property as to lead them to feel that he had relieved them of
such duty, he preferred to give in his lifetime and enjoy the
sight of his good works. Though his early years were of fru-
gal surroundings, and his first mercantile occupations were
little more than remunerative, his mature life was one of vast
and sunny prosperity. He was generous always according to
his means, and his generosity kept even proportions with his
accumulations. Some of its channels, by no means exhaust-
ively, may now be traced.
Mr. Thayer was elected a Fellow of the Corporation of
Harvard College in 1868. This was a most exceptional honor
to be conferred on one not a graduate ; for from the earliest
times that the College had alumni, it had found among them
those who could wisely and intelligently administer its inter-
ests. The most conspicuous person who had, previously to
Mr. Thayer, shared that exceptional honor, was the eminent
mathematician Dr. Nathaniel Bowditch. There were reasons
that warranted the election of Mr. Thayer. He had proved
in many ways his interest in the College, its objects, officers,
and students, all of whom had profited by his generosity in
a variety of gifts. And as the funds of the College were
rapidly increasing, it was the more needful that there should
be among the Fellows, as there always had been, one or more
25
skilled in finance and the management of trusts. Till he
resigned his place in 1875, the institution had many occasions
for valuing his services and offerings. The whole amount of
the pecuniary gifts of Mr. Thayer to the College, its objects
and resources, its officers and students, can never be known,
as he himself kept no full record of them, and as many of
his incidental benefactions were mingled in the general out-
pouring of his most miscellaneous and comprehensive charities.
Though the writer of these pages might, from the materials in
his hands, make some approximate éstimate of special and
united sums, he prefers not to do so. The generous spirit,
always hearty and genial in tone, method, and accompaniment,
which prompted these benefactions, is the main point to be
held in regard. A brief mention of some prominent in the
series and variety of these gifts may be suggestive to the reader
of the cost involved in them. The writer was let into the
knowledge that, at one period at least, Mr. Thayer kept three
sets of check-books, answering to three banks of deposit. One
of these had reference to his purely business affairs, one to his
personal and domestic expenses, and the third to his charities.
In cases where very large sums were involved, this distribu-
tion might not always be regarded, and the sums which came
directly from his pocket left no vouchers. The writer recalls
some incidental remarks made by Mr. Thayer to him, when,
after the decease of his brother partner, he realized that he
was the possessor of a fortune, trifling, however, in amount to
what afterwards came to him. They were in substance these :
“A power of money has come to my hands; and I mean that
it shall give me happiness, if it be in the power of money to
yield it. That it may do so, I realize that I must share it and
do some good with it. But I must have advice and help. I
am beset by all sorts of applicants and importunities, in person
and by letter, so that I am impeded in my privacy and busi-
ness with my own affairs. Some of these applicants and their
objects are of the best, but I am not always able or at leisure
to discriminate them. I receive many canting letters, – The
4
26
Lord has made you his steward,' etc.” The aid which he
solicited was through his permission given to some of his inti-
mate friends, in various ranges and associations of life, to pre-
sent to him with confidence of fit response any worthy object
for which they could themselves answer. True to his reveren-
tial regard for his father and his father's profession, the pet
objects of the son's sympathies were impoverished and dis-
abled ministers. It was well understood by his intimates that
if either of them knew a young man of promise otherwise
unable to enter or complete his course in college, the means
would be abundantly furnished. All through the remainder
of his life this was a favorite direction of his benevolence, and
the gifts were not stinted. Many young men were supported
by him through their whole college course. He expected his
sons, when in college, to follow his example in all considerate
ways.
The most practically efficient of some of Mr. Thayer's de-
vices for serving a class of students was that known as
“Thayer Commons,” something of which sort was made neces-
sary when, before the establishment of the capacious dining-
room in the Memorial Hall, the College, having abandoned
its former provision, had left the students to the mercies of
outside boarding-houses. The following graphic sketch of
Mr. Thayer's device is furnished me by the Rev. Dr. A. P.
Peabody, a friend greatly revered and loved by Mr. Thayer,
and one of those who shared confidentially in the partition of
his generosity : —
CAMBRIDGE, April 6, 1883.
MY DEAR DR. ELLIs, - The origin of the boarding club at Cam-
bridge was on this wise. I was spending a week at Lancaster, and in
driving with Mr. Thayer one day, I told him of the hardships which I
had discovered in some cases to be endured by students who undertook
to board themselves. He at once told me that if I could make any
arrangement for cheap board at cost, he would furnish the fund. There
was a building, originally a railway-station, but then occupied in part by
me for evening religious meetings, and in part by the “queen-goody” of
the College. The Corporation gave the building up to me. I made the
27
queen-goody cook of the establishment, procured the requisite kitchen
equipment and furniture, tables, seats, dishes, etc., costing in the whole
more than a thousand dollars. We thus were able by crowding to
accommodate some fifty or sixty students, while as many were excluded
as could be admitted. The plan then was started of building in the
rear of the rooms thus occupied, a dining-hall. For that a subscription
paper was started, and a few hundred (less than a thousand) dollars sub-
scribed. Mr. Thayer assumed the cost of building, which, with the requi-
site furnishing and a large increase of kitchen plenishing, amounted to
seven or eight thousand dollars. His expenditure in the whole must
have been not less than seven thousand, and it was all that I asked for,
and would have been twice or thrice as much, had I asked for it. As
for the subscription, it was not started because he wanted that it should
be, but because Ingersoll Bowditch was interested in the plan, wanted
to do something for it, got up the paper himself, and was the only sub-
scriber to it whom I can recall, probably the only one who gave more
than a pittance.
Ever truly yours,
A. P. PEABODY.
This “Thayer Commons” was, at its institution, and for the
term of its continuance, one of the most useful and highly
appreciated of all the general provisions made for the welfare
and comfort of a large number of the students of the College.
It combined felicitously the principles of self-support and a
generous subsidy for necessary deficiencies. Even its limita-
tions were among its advantages. That twice as many ap-
plied for admission as could be received into it assured to it a
privileged character. The patronage and oversight which it
enjoyed made its generous management a certainty. From
the first years of the College, when the students brought
their dippers to the buttery hatch to receive weak beer and
hard bread, down through the Commons in University Hall,
when there was no gymnasium to help the processes of di-
gestion, young appetites and their supplies were not always
in amicable relations. Mr. Thayer's provision was a tri-
umph till the dining-room in Memorial Hall superseded it.
Dr. Peabody could have well extended his narrative by ref-
erences to the incidental favors which circumstances led Mr.
28
Thayer to proffer to many of those who fed at his well-
served tables.
Through the kindness of President Eliot of Harvard Col-
lege, the writer has been furnished with a copy, from the
records of the Corporation, of the documents relating to that
munificent donation to the College which bears the name of
“Thayer Hall.” The accession of Mr. Eliot to the Presidency,
soon after Mr. Thayer's election as a Fellow, was immediately
followed by a rapid renewal and expansion of all the interests
of the University, — in engaging for it the quickened regard
of its large constituency, in extending the scope of its activity
in all its departments, in adding to the compass of its curricu-
lum and the number of its officers and instructors, and espe-
cially by a sudden increase in the number of students joining
its academic and its professional departments. Of course a
corresponding and a large increase of its funds, and equally
a multiplication of its halls, became very pressing wants.
The supply of these wants was as liberally furnished as it was
confidently expected. Mr. Thayer took the lead in the series
of these benefactions. The following items from the records
of the Corporation show the initiation and the completion of
his design : —
“July 31, 1869. Voted, That the President and Messrs. Thayer and
Lowell be a committee to consider the expediency of erecting a new
dormitory, and procure plans and estimates if they see fit.
“Sept. 25, 1869. The committee on the expediency of erecting a
new dormitory presented a report recommending the immediate erec-
tion of such a building. Whereupon it was Voted, To proceed forthwith
to the erection of a new dormitory, according to the plans of Messrs.
Ryder & Harris, and under their superintendence.
“ Voted, That the sum of the tenders of contract upon the said build-
ing, and of the commissions chargeable upon the same, be limited to
$100,000.
“Voted, That the committee appointed July 31, 1869, be empowered
to fix ‘the site of the new building, and carry the above votes into
execution.”.
* 29
A letter to the writer from President Eliot may be intro-
duced here, as relating particulars of interest: —
CAMBRIDGE, April 22, 1883.
MY DEAR SIR, - In reply to your inquiry of April 3d, I have much
pleasure in giving you all the information which I possess concerning
Mr. Nathaniel Thayer's greatest benefaction to the College, – Thayer
Hall.
In June, 1869, a few weeks after I became President, Mr. Thayer
told me, at his office in Sears Building, that he thought the College ought
to have another dormitory, the rents of which should be applicable to
any college use, at the discretion of the Corporation, and that he
meant to see that it was shortly built. Being a member of the Cor-
poration at the time, he knew that unrestricted income was the great
need of the College, and he was also aware that more students’ rooms
in the College Yard were desirable, in order that the prices of rooms
in the town might be kept within reasonable limits. At the end of
July a committee of the Corporation was appointed (Mr. Thayer being
one of the committee) to consider the expediency of erecting a new
dormitory, and to procure plans if they saw fit. Mr. Thayer selected
as architect, Mr. Edward D. Harris, junior member of the firm of
Ryder & Harris, of Boston, and a son of Thaddeus Wilhiam Harris, a
former Librarian of the University. In making this choice Mr. Thayer
told me that he was influenced by early friendship for the Harris family.
The plans of the building were prepared during the summer; near the
end of September the Corporation voted to proceed forthwith to the
erection of a new dormitory, and early in October the foundations were
begun. Cold weather stopped the work at the first floor. Work was
resumed as early as possible in the spring, and was prosecuted vigor-
ously, with the intention of getting the building ready for occupation
by Oct. 1, 1870, and so securing the rents of the rooms for the academic
year 1870–71. This object was accomplished, but to the injury of the
wood-work of the interior, much of which was put in before the plas-
tering was thoroughly dry.
The main object which Mr. Thayer had in view was to secure a solid
and durable building (almost all the interior partitions are of brick)
with a considerable rental and accommodations for a large number of
students. He deliberately preferred a plain building to an ornate but
smaller one, on the ground that the College would get an advantage
proportionate to the capacity of the Hall. The proceedings of the Cor-
poration on the subject (a copy of which I enclose) give the impression
30
that at the start the Corporation expected to pay part of the cost of the
Hall; but before the plans and specifications were completed it became
perfectly understood that Mr. Thayer meant to pay the whole cost. He
made all the contracts and paid all the bills himself, including the bills
for the necessary grading about the building.
I never knew the exact cost of the whole work to Mr. Thayer, but
it was not less than $100,000." The College had never before received
so great a gift from a single benefactor, or a wiser gift from any source.
The example set by Mr. Thayer has been followed, within twelve years,
by Mr. Matthews, Mr. Weld, Mr. Hemmenway, Colonel Sever and
Mrs. Sever, and the anonymous givers of the new Law School and the
new Physical Laboratory. Mr. Thayer's objects have been perfectly
attained. Nearly one hundred students live in Thayer Hall, and the
Corporation get from it a net income of about $8,000 a year.
I am very glad that Mr. Thayer's life is to be carefully and thoroughly
written. It is good for the community, and particularly for young
men, that such a life should be held in honorable remembrance.
Believe me, my dear sir, with great respect,
Very truly yours,
CHARLEs W. ELIOT.
Rev. GEORGE E. ELLIS, D.D.
Continuing the extracts from the records of the Corpora-
tion, we have the following, Jan. 14, 1870: —
BosTON, Jan. 10, 1870.
To the President and Fellows of Harvard College:
GENTLEMEN, - As stated in the report of the Committee upon a
new Dormitory, dated Sept. 25, 1869, I agreed to pay the first fifty
thousand dollars which might be called for. I now agree to pay the
entire cost of the building, as the money may be wanted.
My object in doing this is not simply to meet a great want of the
College at this time, but also as a testimony of respect to the mem-
ory of my much-loved and honored father, Nathaniel Thayer, D.D.,
who was a graduate of, and for some time an instructor in, the Col-
lege; and also to that of my brother John Eliot Thayer, who showed
in various ways his interest in the College, and especially in estab-
lishing the scholarships bearing his name.
With much respect, yours truly,
N. THAYER.
1 It considerably exceeded that sum.
THAY ER HALL, HARVARD UNIVERSITY.
ſaev_\ovae pºvaev ： 00, º OSV Ow.

Whereupon it was —
Voted, That the munificent offer of Mr. Thayer be gratefully ac-
cepted, and that the President make suitable acknowledgment thereof.
Voted, That the new dormitory be named Thayer Hall.
Voted, That the Building Committee be directed to place in the ves-
tibule, or other suitable position, a tablet with an inscription expressive
of the memorial design contemplated by Mr. Thayer."
In the preceding letter Mr. Thayer makes a reference to
the interest and generosity shown towards the College by his
brother. By his will, executed in 1855, to three trustees
named, and their successors, Mr. John Eliot Thayer says: —
“I give the sum of fifty thousand dollars, to pay the income of and
from said sum to the ten most meritorious scholars in Harvard Univer-
sity every year, etc. I had intended to have given to the University
a very large sum, and indeed in a former will which I had made had
done so; but I have seen, for the last few years, a constant disposition
among politicians and certain sectarians to get possession of the same,
which I have no doubt will greatly injure the same,” etc.
The reference here is to that inauspicious period in the his-
tory of the College, when the Legislature, having induced a
change in the mode of electing the members of the Board of
Overseers of Harvard College, had taken the task and office
into its own hands. Parties and sects demanding a repre-
sentation on the Board exposed the College to all the con-
tentions and rivalries of political management. Mr. Thayer's
intended bequests were not the only gifts which were lost to
the College at that period. The extraordinary prosperity of
the University in recent years has found one among the
several occasions of it in the abandonment of that political
1 The tablet bears this simple inscription : —
THIS HALL IS EIRECTED BY
NATHANIEL THAYER
IN MEMORY OF HIS FATHER,
NATHANIEL THAYER, D.D.
AND OF HIS BROTHER,
JOHN ELIOT THAYER.
1870.
32
method of mischief, and the committal of the institution to
the oversight of its own alumni.
Professor Asa Gray has furnished the writer with some of
the particulars connected with another of Mr. N. Thayer's ben-
efactions to the University, - namely, his provision of a fire-
proof Herbarium, with furnishings and library, in connection
with the Botanic Gardens. This was one among the many
objects and directions of Mr. Thayer's generosity, in which,
while starting with a will and expectation of co-operating with
others in instituting or advancing some special design, he
found himself led on, by circumstances of his own prompting,
to do the whole, and even then to be ready to meet the inci-
dental consequences in the development of methods and ne-
cessities. The solid and well-protected brick structure for
the Herbarium cost about $12,000. It needed an elaborate
system of cases and drawers; then an addition to its library;
then the Garden itself drew on him for its restoration, in
the amount of $5,000. Only his own private papers would
show the whole cost of his offering to the collection and
preservation of Flora. One of the courtesies which generous
givers among us are learning to observe towards each other
is shown in hesitating to supplement each other’s gifts by
additions of their own to the deposit. When a new scheme
or object has found its first advocate or pecuniary supporter,
the new courtesy seems to suggest that he have the whole
burden and credit of it. This certainly was illustrated in
the next of Mr. Thayer's generous deeds.
Under the name of the “Thayer Expedition,”
5
rightly so
called, because it was prompted, and so far as private liberal-
ity was engaged, was wholly sustained, at the charge of the
subject of this Memoir, appreciative notice must here be taken
of a most successful enterprise of world-wide interest to scien-
tists and naturalists. The expedition combined in equal por-
tions the lofty and chivalrous enthusiasm of Professor Louis
Agassiz, and the unstinted generosity of Mr. Thayer. And it
may be added that Mr. Thayer himself acted under the double
41
Mr. Thayer's munificent generosity for the objects which so
engaged the toil and zeal of Agassiz met with much appre-
ciative notice in Europe. The “Gesellschaft für Erdkunde,”
a Geographical Society in Berlin, - one of the oldest, most
honorable, of the European learned societies, and, like them
all, exclusive, — an association gathering such members as
Humboldt, Carl Ritter, Lipsius, Dr. Livingstone, and the
like, – elected Professor Agassiz and Mr. Thayer to Honorary
Membership. The diploma of the latter was accompanied by
a letter to him as “a high-minded friend of science.”
As was intimated on a previous page, the establishment
of a repute for liberality such as characterized the subject of
this Memoir, was an announcement to the whole community
of one to whom every good cause might confidently appeal
for furtherance. Doubtful objects and importunate solicita-
tions would not be wanting. Mr. Thayer was worldly-wise,
discriminating, and independent, and knew how to refuse or
mildly decline. But these were exceptional cases. It would
not be consistent with a regard for the modesty and dignity
which were so prominent in him to make an exposition or
summary of his good and generous deeds. The list of our
curiously classified institutions for every form of charity, be-
nevolence, literary, scientific, and artistic culture, and all prac-
tical good objects and ends, is well known to be a very long one,
and the solicitors for them are by no means only annual in
their calls. It would be difficult to find a single one of them
that was initiated without a gift of thousands from Mr.
Thayer, or aided by repeated contributions lavish and heartily
bestowed on the instant call. The Massachusetts General
Hospital and the Children's Hospital in Boston were large
sharers in his generosity. The newspapers might have kept
his name in type as answering to all appeals at home and
from abroad. Indeed, the announcement of a liberal gift from
him appeared in the papers which noted his decease. The
private pensioners on his bounty, continued on his memoranda
for years, were as sure of an annual return as if they had
6
42
claims on an annuity. The genial and kindly tone and smile
added a grace to his favors.
Another direction in which Mr. Thayer exercised a large
liberality deserves a special mention. On a change in the
ministry of the Second Church, then standing on its old site
in North Boston, he connected himself, as his brother John had
done, with the First Church, on its then site in Chauncey Place.
The edifice there was fast becoming wholly unsuited to its
purpose by the removal of its old households, the thinning of
the congregation, and the conversion of the neighborhood into
a crowded mart for business. It was necessary for the sur-
vival and prosperous renewal of the Society that it should pre-
pare for a great change of place, and for the erection of a fifth
edifice in succession to its first wilderness temple, rude and
homely in material and structure. So long as the rich and
tasteful and solid edifice of the First Church at the corner of
Berkeley and Marlborough Streets shall stand, it will be a
monument of the zealous perseverance and of the munificence
of Mr. Thayer. He was proud of being in the direct lineage,
on the maternal side, of the memorable John Cotton, the ejected
rector of St. Botolph's Church in Boston, Old England, and
the first associate pastor of the First Church in our Boston.
He was resolved that wherever the proposed edifice should be
planted it should worthily represent, amid the development of
prosperity, wealth, and taste in this city, the original altar-
shrine of the English colonists, and that the simple title borne
for more than two and a quarter centuries should be perpetu-
ated. At the time when measures for the removal were in-
itiated, about 1865 and 1866, the reclaiming and occupancy
of the alluvial region of the Back Bay, now covered with
palatial edifices, and coursed by noble avenues, was a novel
enterprise, not as yet of assured success. There were many
who were not sanguine as to the occupancy and healthfulness
of a region to be rescued from tidal waters for the production
of a new Dutch land. The state of business and of the pecu-
niary interests of the community, so recently after the dis-
43
tractions of our Civil War, then just closed, were discouraging
facts to some as affecting the prospects of a costly enterprise,
with a deranged currency, a high premium on gold, and an
advance upon labor and building materials. But for the hope-
fulness and resolve of Mr. Thayer the enterprise would have
halted, perhaps to the discouragement of the purpose. And
when undertaken, but for his lavish aid it would have been
burdened with encumbrance; for it was a part of his resolve
that when the time came for dedicating the edifice to God, it
should not be mortgaged to man. He was earnest, perhaps
importunate and enthusiastic, with some of his mistrusting
associates. He felt assured that the plans which he projected
were wise, and to those whom he failed to convince or win to
it, he could but offer arguments and demonstrations. It was
well understood, however, by the doubtful, that nothing on
his part would be wanting to meet or avert any emergencies.
He was fully justified and gratified by the result. The sub-
stitution on another site of a new place of worship revived
and invigorated a wasting religious society, which, under the
charge of a faithful and earnest ministry, is a centre of wide-
extended Christian activity, and has the pledge of spanning
the centuries. An ample space for church and chapel was
provided on the new land; and appropriate structures, in all
substantial solidity of material, with all fit appointments and
adornments in good art and pure taste, receive only commend-
ing judgment. Mr. Thayer's contributions exceeded the sum
of $75,000, nearly a quarter of the whole cost, though much
wealth is represented in the Society. He erected in the
church a fine memorial window to his partner brother, and an
appropriate memorial of himself is about to be placed within
the walls.
One of the obligations — or privileges, as it may be re-
garded – of the steadily decreasing proportion of our city
population identified as pew-holders, responsible members,
and regular attendants and supporters in our places of wor-
ship, is that of representing for our whole community, either
44.
as willing parties or as convenient substitutes, a large part of
all the religious and benevolent causes, which are incessant
and multiplied in their appeals. The Christian religion in-
vented Sunday, preaching, and the contribution-box. Those
who put themselves in intimate relations with the two former
of these Christian institutions become very familiar with the
last of them. It is all right, and true loyalty holds the faith-
ful to the conditions. The more we appreciate the good that
is done for ourselves the more likely we are to be interested
in securing the same for others. The contribution-box is in
itself but an emblem. It represents, in its widest range, sub-
scription papers, appeals of individuals and committees, and
all sorts of efforts to pay debts, to prevent debts, and to fund
resources. To every object connected with the welfare and
religious and humane works of his church, Mr. Thayer, though
wholly lacking in all limitations and motives of sectarian zeal,
was promptly responsive. He was at times a committee of
one, and an efficient one. Strongly attached to the simplicity
and method of the liberalized Congregational form of worship
under which he had been trained, – that of his father and his
home, – though he in no way opposed or objected to the
adoption of a form of service by a book in the First Church,
he was hardly in sympathy with it. He tried to familiarize
himself with the alternations of “standing up and sitting
down" and with “finding the place ’’ in the book; but the
effort, he said, was not helpful to his devotions.
In his full health and vigor, Mr. Thayer enjoyed the refined
pleasures, the hospitalities, and social clubs of his city life.
His business interests led him to frequent and extensive jour-
neys over the country, and he made the usual European
voyages.
Mr. Thayer will always be most pleasantly remembered in
his associations with Lancaster by those who were privileged
to be his guests there. He was never weaned from the home
of his youth, and it became more attractive and satisfying to
him in his later years. The widow of Dr. Thayer spent the
45
remainder of her life — which closed June 22, 1857, in the
same year as that of her son, John Eliot — in the old parson-
age. In the kindly spirit of her relations to the parish, as
the wife of its honored minister, she received, as permanent
guests for her hospitality, the two young men who in succes-
sion acceded to the pastorate, till each of them had homes of
their own. She found a most valued and welcome friend in
that much revered and highly gifted man, scholar, divine,
and poet, — the late Rev. E. H. Sears. When his failure in
health compelled his resignation of office, his successor, the
Rev. George M. Bartol, the present minister, was very near to
her in her last years. Both the brothers, during the period
of their most engrossing business life, were constant visitors
to the old home, ministering to the comfort of their parents,
and to that especially of the surviving mother. Though Mr.
Nathaniel Thayer was for many years a citizen of Boston, he
always regarded himself as belonging, through affection and
inclination, to Lancaster, and in his later years transferred
his citizenship to it, and assumed the duties which the re-
lation involved. He would gladly have retained the old par-
sonage for his own residence had its size and condition served
for his own household. When it was found necessary to raze
it, he formed his plans, with the aid of his chosen architect,
to replace it by a spacious and beautiful villa-mansion on the
old site. He was scrupulously careful to preserve all the
features of the spot and its surroundings. The old well, with
its sweep, was left, sheltered by the old elms, as the central
ornament of the lawn. The old trees, the oaks and the chest-
nuts, which his parents had found on the spot or had planted,
remained. The adornments of the extended grounds are in
keeping with a refined taste. The Nashua runs through the
green meadows. At a convenient distance stand the exten-
sive farm buildings, with their contents of heavy crops, the
best mechanical implements, and the approved stock of cattle,
the increase of which were at the service of his neighbor
husbandmen far and near, to improve the breed through the
46
county. Mr. Thayer's mode of life here, as well as in the
city, was characterized by an elegant and graceful simplicity.
There was every provision and appliance for comfort and true
enjoyment, with no trace of Ostentation or parade, no elabo-
rateness of equipage or liveries, – no overdoing in anything.
It always seemed to his guests that their host, in many things,
was regarding them rather than himself, and could on his own
part dispense with much that was around him were it not
that they might enjoy themselves to the fullest. Always cor-
dial and genial in look and manner when he was in full health,
he was radiant in cheerfulness and heartily responsive to
mirthfulness and merriment. A guest might well recall his
boyhood's freedom and helpfulness when, on his host’s invita-
tion to a lazy drive, he accompanied him to the stable, and
though grooms and horses and vehicles abounded, the host
would himself select his favorite animal from the stall and
proceed to harness him into a favorite and well-worn buggy.
The loitering drive through the wooded roads was described
as “poking round.” Every highway and by-path and cross-
cut, near and far, over frequent bridgings of the winding
water-courses; every sightly prospect, and all the local names,
— as numerous as those by which the vanished Indians knew
every feature of the territory, - had been got by heart by
Mr. Thayer in his youth, and never lapsed from his remem-
brance.
Another tie which bound Mr. Thayer very strongly to Lan-
caster was because it continued to be the life-long residence—
save for her visits to him in the winter in Boston — of his un-
married sister, Miss Mary Ann Thayer. She was eight years
his elder. The relation between them was one of singular
tenderness and regard, and, on his part, of deferential rever-
ence. He seemed to transfer to her the respect and attach-
ment which he had felt for their parents. And she was, in
fact, not only to him, but to the people of the town, and
especially of the parish, the representative of those parents.
Slender in form, delicate in constitution, mild and gentle in

47
her ways, but of great force of character, she impressed all
who knew her by the graces of her simple dignity and refine-
ment. Her own strong preferences led her to identify her
whole life, which closed but a few years before that of her
brother Nathaniel, with the scenes of her father's ministry.
To her brother's children she filled the ideal of a beloved and
fondly watchful maiden aunt. She was the good angel of the
village. All cases of illness, misfortune, and want hardly
needed to be reported to her, for she seemed to be the earliest
to know of them, as of everything that interested or cheered
the inmates of the surrounding homes. They were all sharers
in her full-hearted sympathy and service. Her life closed
April 17, 1876.
The guests of Mr. Thayer in his country home could not
fail to note the relations of intimacy and acquaintance in
which he stood with the people of the town, and with all its
local interests, civil, social, domestic, and religious. It seemed
sometimes as if he recognized and was acting under a sort of
large and general responsibility entailed upon him by his
father. Of all the residents of his own age, and in good part
of their children, he knew the names, employments, and con-
dition, and was on a footing of most cordial familiarity with
them. Driving, with a visitor as a companion, by the main or
cross roads, the meadows, fields, or wood-ways in the neigh-
borhood, the farmer at the sight of him would pause in his
work, come to the fence, and seem to resume some former
conversation on the crops, the weather, or any matter of inter-
est to the town. On Sunday he would loiter in the meeting-
house porch or near the horse-sheds, as if one of the old-time
group, at what was once the village exchange before the era
of newspapers and the modern frequency of assemblings. It
was pleasant to note the perfect cordiality between him and
his contemporaries, who had been pursuing the current of
their lives amid the quiet surroundings of those rural scenes
while he had been acquiring a fortune a fragment of which
would purchase all their possessions.
48
There was something strikingly characteristic of Mr. Thayer
in the judgment and method which he followed in his various
and innumerable co-operative services to his native town in all
its interests and in its improvement and adornment. There
was a delicate consideration to be observed in the case, the
graceful regard of which by both parties could alone make
their relations friendly and respectful. There are rural com-
munities in which a native-born citizen returning to it from a
very prosperous business career abroad, or an adopted resident
under similar circumstances, would be a mark for envy or
over-expectations. He might be welcomed as one who would
relieve, if not wholly remove, all the burdens of taxation, or
anticipate by lavish largesses the prosperity which can health-
fully come only by time and general thriftiness. Some of Mr.
Thayer's visiting companions on their drives may recall the
case of a citizen, now deceased, in another town, not of marked
prosperity, who was regarded as by no means a desirable mem-
ber of his community. He was the richest man in it, holding
mortgages on most of its farms, horses, and cattle, never re-
laxing his grasp on anything, and with his hands open only
for more. He was looked upon, spoken of, and treated by his
neighbors after the fashion in which human nature, whether
corrupt or honest, will declare itself under such circumstances.
The squire or millionnaire of a rural community has as much
occasion for the exercise of a sound discretion as of a spirit
of generosity.
The Free Academies and Libraries, the Homes and Refuges,
and the ornamented grounds, which now dot our village towns
over all New England, and largely over other parts of our
country, are the kindly and well-appreciated deposits made by
munificent men, who in their prosperity have renewed their
early ties to frugal homes. It would have consisted equally
with the good-will as with the resources of Mr. Thayer to
have discharged in a lump all the municipal expenses of his
native town, – for its highways and bridges, its schools and
churches, and its poor. But his good, sound sense, and still
RESIDENCE OF NATHAN I EL THAYER, LANCASTER, MASS.

49
more his respect for his townsmen, would have made such an
act of assumption and folly impossible to him. His sagacity
and manliness led him to a very marked method in his favors.
He was careful to avoid all ostentation and show of patronage.
He might sometimes have been prompted by another's hint of
some desirable direction of his generosity. In most cases, if
not always, the suggestion came from himself. As, however,
he always wished to have the people appear as doing all that
they were disposed to do in all good objects, he intimated that
they would take the lead thus: “See and try what you can
do yourselves, and then come to me.” He assigned to them
no measurement or proportion, nor did he limit the balance
which would come from him. When the mania was at its
height among us at the North for sprinkling over our towns,
under the name of “Soldiers’ Monuments,” heaps of stones
and statues, to be exposed on village greens to the rigors of
our climate and as marks for playing children, he might have
been of the same mind as Cicero, that the memorials of a civil
war should be made of wood, that they might decay all the
sooner. But he loved patriotism, and he would commemorate
patriots in a way to promote that and other virtues. So his
choice for his native town was for a free public library, with
well-laden shelves, a reading-room, and all needful appliances.
In this should be reared a pure white marble tablet, bearing
in letters of gold the names of the honored dead, so that every
youth coming for a book should have the memorial with its
lesson always before him. “See what you can do about it ’’
was his word to his townsmen. The town treasury contrib-
uted five thousand dollars to the object. Private subscrip-
tions added six thousand more. The balance, being about
two thirds of the whole cost, was defrayed by Mr. Thayer,
who also funded a generous sum for its support. So too in
the restoration, slating, and adornment of the substantial
brick meeting-house built during his father's ministry, he
added to his contribution to the work an endowment of ten
thousand dollars for the parish. And in providing a new
7
50
chapel his word was repeated, “See what you can do about
it ; ” adding, “While you are about it you had better have
it done in the best manner.” The balance lay with himself.
He pursued the same course in the restoration, enlargement,
and beautifying of the old burial-grounds, in one of which
rest the remains of his parents. In his private beneficences,
in a large variety of subjects and directions, he kept his own
secrets. His stock farm for many uses of distribution repre-
sented what his bank of deposit did in the city. It was by
these methods of a wise and generous co-operating liberality
that the most cordial and mutually respectful relations existed
between Mr. Thayer and his townsmen. A very impressive
manifestation of their tender regard for him was shown when,
on the day of his funeral from his city church, – a day of
storm, of snow and rain and sleet, and of discomforts in travel,
— the porch and aisles were filled by unsummoned groups of
those mourning friends.
The last three years of Mr. Thayer's life, though free of
any severity of pain and suffering, were attended by an en-
feeblement of bodily vigor which occasionally impaired the
full exercise of his mental powers. He was gentle and
patient under the needful suspense of his business activity
and in the seclusion of his home. His release came on the
seventh day of March, 1883, at the age of seventy-four."
1. At a critical interval in Mr. Thayer's protracted illness a large committee
chosen for the purpose addressed to him the following letter: —
LANCASTER, March 20, 1882.
NATHANIEL THAYER, Esq.
DEAR SIR, - Your fellow-citizens of this town have heard of your serious ill-
ness with a regret that has now deepened into painful solicitude.
Assembled in their Annual Meeting this day, they ask us to address you in
their behalf.
They hereby tender to you their thankful acknowledgments of all that you
have been and done, in wise counsels and in many generous gifts and endowments
for the material and moral advancement of the town.
They are very sensible how much they owe to you, and in how many ways ;
and what reasons they have, and the generations to come after them will have,
for holding your name and memory, in succession to those of your honored
father and mother, in grateful pride and affection.
51
Mr. Thayer married, June 10, 1846, Cornelia, daughter of
General Stephen Van Rensselaer, of Albany, New York.
She, with two married daughters, and two married and two
unmarried sons, survive him. He was interred in his lot in
Mount Auburn Cemetery.
In 1881 the members of the old Congregational Parish in
Lancaster erected a brick chapel of the same style of archi-
tecture as the meeting-house, to which it is attached. It bears
the name of the Thayer Memorial Chapel, in grateful remem-
brance of Dr. Thayer and his wife, with portraits of them,
and a brass memorial tablet. Since the decease of Mr. Na-
thaniel Thayer the parishioners have set up in it a memorial
tablet to him of Caen stone.
º lºſºliº
º ºil.
º
|
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##############
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#####||
Hijjī
Hºº
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33
inspiration of his interest in science and his admiration and
love for the great naturalist. If either of these impulses had
the predominance in Mr. Thayer's motives, it was doubtless his
response to the magnetic and kindling enthusiasm of Mr.
Agassiz. The objects of the expedition, as set forth by the
Professor, might naturally, to a man not a scientist, be sec-
ondary to his confidence that one who was a master in all the
lore of Nature would be sure to turn to highest account any
opportunity offered to him. Mr. Thayer, being eminently a
practical man, might well have found many other objects of a
strictly scientific character to engage his interest; and his well-
established repute for lavish patronage of the most miscella-
neous utilities never left him unsolicited for pecuniary favors.
Indeed, when the results of the expedition came to be re-
ported, he found matter for his hearty humor in the marvel-
lous superabundance of thousands of specimens of grotesque
and inedible fishes, which, having been drawn from their na-
tive element, required quite another liquid for their preserva-
tion. Mr. Thayer's intimates will recall the amusement he
found for himself and them, when he would express a sort of
penitence for having been concerned in drawing out so many
briny creatures from the sea, the penalty being the obligation
to furnish a seeming ocean of alcohol for their future nour-
ishment. A suggestion of the measure of this exaction may
be gathered from the following extract of a report of Profes-
sor Agassiz in 1869. He had asked of his assistants a count
of all the glass jars of fishes already put up with specimens
in alcohol. The return was, “fifteen thousand two hundred
and forty-two jars, of all sizes, from the smallest, three inches
high by one inch in diameter, to the largest, three feet high
by nine inches in diameter, containing each from one to
fifty and more specimens, and occasionally even several hun-
dreds. And yet this is by no means half of the collection.
The rest remain for the present piled up in tanks, kegs, cans,
earthen jars, and other vessels.” It was this last half that Mr.
Thayer thought so unconscionably craving of the costly liquor.
5
34
A slight relief was found in procuring from Congress an act
to remit the excise duty on alcohol for scientific purposes.
But this is in anticipation of our theme. Mr. Thayer was
easily drawn to a generous interest in all scientific pursuits.
In his later years he often expressed in substance the follow-
ing views: As wealth and the opportunities for a life of lei-
sure and wide culture increased in this community, numbers of
young men would come into the inheritance of fortunes ex-
empting them from dependence upon mercantile and profes-
sional pursuits. It was desirable to engage their interest in
studies and investigations which, though they might very
rarely be found to be pecuniarily profitable, would be refining
and elevating. Mr. Thayer recognized in Mr. Agassiz a man
of grand genius, of noble capacities, of full-hearted devotion
to his science, and of a wholly unselfish aim in its pursuit ;
who would receive no place or office, gift or present, as of
personal use or reward, but would plead and even with dig-
nity beg for the patronage of science. Mr. Thayer thought
it was an honor to our country that Mr. Agassiz should trans-
fer his citizenship to it for life, and should reject the solicita-
tions of Louis Philippe to accept high position and service in
France. There is a noble sentence from the pen of Agassiz,
which expresses the scope and inspiration of his aim. He said
the time had passed when men manifested their religious zeal
in such works as the Cathedral at Cologne and the Basilica
of St. Peter's, and added: “It is my hope to see, with the pro-
gress of intellectual culture, a structure arise among us which
may be a temple of the revelations made in the material uni-
verse, to embrace the infinite work of the Infinite Wisdom.”
(Report for 1869.)
Mr. Agassiz had procured in 1859, with large subsequent
help from State grants, as well as from individuals, the found-
ing of the Museum of Comparative Zoëlogy, in connection with
Harvard College. The Professor's ideal of this institution, and
his prophecy and conviction of what it would grow to be,
were, from the first, of the loftiest, and all-comprehensive. He
P-
35
saw it, and not in a very distant future, rivalling and out-
reaching the grandest museums of Europe, which had mon-
archs for their patrons, national treasuries for their support,
and the most eminent savans for their servants. Certainly, if
the development of the institution, the extending sweep of its
buildings, and the busy workers engaged in it, — men and
women, – may serve as tokens, his vision was of realities.
Still, though the grand liberality of his son, enriched by the
proceeds of a gold mine which yields only copper, has given to
the institution more than all that it had before received from
all sources, even to a sum exceeding half a million dollars,
it has its aim still only in an advanced stage of progress.
Professor Agassiz was the Director of this Institution, and
Mr. Thayer was the Treasurer of the Corporation, at the time
now to be noted in the history of the Thayer Expedition. All
who have been associated with Mr. Thayer in the various soci-
eties of which he was the treasurer well know what advan-
tage accrued to their funds. One of the fruits of the Thayer
Expedition is a volume bearing the following title: “A Jour-
ney in Brazil, by Professor and Mrs. Louis Agassiz. Boston:
Ticknor & Fields. 1868.” The contents of the book are
mainly from the journal of Mrs. Agassiz. One of the services
of the wife on the journey is expressed in the following lines
from Longfellow, quoted on the titlepage : —
“And whenever the way seemed long,
Or his heart began to fail,
She would sing a more wonderful song,
Or tell a more marvellous tale.”
The dedication of the volume is —
“To Mr. Nathaniel Thayer, the Friend who made it possible to give
this Journey the character of a Scientific Expedition, THE PRESENT
Woluwe is Gratefully inscribed.”
In simple and graceful sentences the Professor relates the
circumstances which led to the expedition. In 1865 he had felt
it necessary to seek relief from the strain and weariness of
36
work, and recuperation of health by change and motion. His
thoughts and longings turned to the study of the Fauna of
Brazil, particularly as its enlightened and generous Emperor
had previously expressed his sympathy with Agassiz, and had
sent valuable collections to the Museum at Cambridge. But
the distance of space, the expense of time, the lack of pecu-
niary resources, and the necessity of providing for competent
Scientific assistants and companions to aid his single-handed
efforts, were formidable obstacles in the way. The words of
this earnest seeker must be quoted here : —
“While I was brooding over these thoughts I chanced to meet Mr.
Nathaniel Thayer, whom I have ever found a generous friend to sci-
ence. The idea of appealing to him for a scheme of this magnitude had
not, however, occurred to me; but he introduced the subject, and after
expressing his interest in my proposed journey, added, ‘You wish, of
course, to give it a scientific character; take six assistants with you, and
I will be responsible for all their expenses, personal and scientific.’ It
was so simply said, and seemed to me so great a boon, that at first I
hardly believed I had heard him rightly. In the end I had cause to see
in how large and liberal a sense he proffered his support to the expedi-
tion, which, as is usual in such cases, proved longer and more costly
than was at first anticipated. Not only did he provide most liberally
for assistants, but until the last specimen was stored in the Museum,
he continued to advance whatever sums were needed, always desiring
me to inform him should any additional expenses occur on closing up
the affairs of the expedition. It seems to me that the good arising from
the knowledge of such facts justifies me in speaking here of these gen-
erous deeds, accomplished so unostentatiously that they might other-
wise pass unnoticed.” (Preface.)
What is most observable in the matter of this charming
narrative from the grateful writer is the open-handed, whole-
hearted spirit of the patron of this expedition. The expense
of it was wholly inestimable and incalculable. A set effort
to foretell its cost was utterly impracticable, as too many un-
known conditions would enter into it. Not even time Was
defined. Not a word seems to have been said by either party
on the subject. The rule of prudence on all but the most
3.

37
exceptional occasions, “First count the cost,” was wholly set
aside. It was one of those rare free-speech contracts between
good-will and confidence, the only conditions of which were
honest and intelligent enthusiasm on one side, and lavish gen-
erosity on the other. As circumstances, immediately to be
mentioned, which could by no means have been foreseen or
calculated upon, supplied quite considerable resources for re-
ducing the charges which would have come upon Mr. Thayer,
his liberality found a limit not at all of his seeking. For
many reasons this expedition was remarkable and exemplary.
It was then the first, and up to this time the only, scientific
enterprise, outside of our own country or even within it, Sus-
tained at the charges and by the unstinted liberality of an in-
dividual, who allowed the receiver to measure the amount by
his own large aim and purpose. Mr. Thayer found his full
return in every circumstance and event, every appreciative
and helping agency which came in to advance the enterprise,
and in its rich and auspicious results. His pleasure began in
realizing, as he parted with Professor Agassiz, the radiant and
beaming delight of the great naturalist, as he started to seek
the improvement of his grand opportunity and the fruition of
his high expectations. His trained scientific assistants were an
artist, a conchologist, two geologists, an Ornithologist, and a
preparator. There were also six or more volunteers, with sci-
entific tastes and other accomplishments, all of them catching
the ardent enthusiasm of their leader. Among these was
Stephen Van Rensselaer, the eldest son of Mr. Thayer, whose
career of promise and hopefulness closed in early manhood in
1871. These assistants were sent off in groups charged with
special errands and investigations on land and water in Brazil,
and contributed largely to the comprehensive results of the ex-
pedition. These were by no means limited to the investiga-
tion of the fishes and the fauna of the country, but embraced
in the widest compass all its products and phenomena. The
favoring circumstances above referred to, which came in to
supplement the free liberality of the patron of the enterprise,
38
were of the most helpful and auspicious character, alike grati-
fying to Professor Agassiz, as exhibiting a responsive Sym-
pathy in his purposes, and as largely helping to facilitate,
extend, and secure the full success of the expedition. The
President of the Pacific Mail Steamship Company offered to
the whole party of sixteen members the hospitality of their
magnificent ship the “Colorado,” just then sailing from New
York for the Pacific coast. She was furnished with a large
aquarium on deck, and with all needful appliances and conve-
niences. They sailed from New York, April 1, 1865. During
the three weeks’ passage to Rio de Janeiro, the earnest Pro-
fessor, furnished with his blackboard, delivered to his company
in the cabin of the reeling and tossing vessel, lessons and in-
structions preparatory to the active work in which they were
all soon to be engaged. The Secretary of the Navy issued
general orders to all officers of the United States, to assist in
the researches of the expedition and to receive and bring home
its collections. More than all, the Professor at once received
the heartiest co-operation and furtherance of Dom Pedro,
“a sovereign as enlightened as he is humane ‘’’ and all the
authorities and people of his empire proceeded to contribute
all facilities and aids of hospitality and various service, mak-
ing the party guests in every public conveyance. The daily
journals of the Professor and of his gifted wife — a duplication
of himself — are inextricably interwoven in the pages of the
charming volume, “A Journey in Brazil.”
The enormous collections of the expedition began to be re-
ceived in Cambridge in 1866; and though the extensive spaces
of the Museum for receiving and displaying them have been
lengthening and broadening ever since, they are not yet all
open and classified. The Professor made his first report
before his return in 1867. -
In the Report of the Trustees of the Museum in January,
1866, it is — -
“ Ordered, That the grateful acknowledgments of this Board be of—
fered by the President to Nathaniel Thayer, Esq., for his munifi-
39
cent, kind, and well-considered arrangements, enabling Professor Louis
Agassiz, in the way he most desires, and in the most efficient manner,
to serve the interests of the Museum, and the cause of science, during
his present absence in South America.”
The Governor of Massachusetts, – then John A. Andrew, -
being ea officio President of the Board of Trustees, was the
medium for presenting its grateful acknowledgments to the
Emperor of Brazil. .
The writer has before him a packet of letters addressed to
Mr. Thayer by Professor and Mrs. Agassiz while absent on the
expedition, or in relation to subjects which engaged them in
their pleasant intercourse with each other. The matter of
them is too strictly private and personal to admit of their being
introduced here ; but they are all expressive of that warm
regard and grateful appreciation of the kindness and gener-
osity of Mr. Thayer which refined sentiment would associate
with a sense of obligation. Always emphasizing the fact that
Mr. Agassiz, one of the most unselfish of men, never sought
or would receive gifts or tributes of a personal character, it
was well known to all who knew him, that he never yielded to
any show of diffidence or hesitation, whether before a commit-
tee of the Legislature or in interviews with rich men, in seek-
ing patronage for what he represented. It was not himself,
but his “science,” that he would secure from starvation, and
have stand forth in proper garb and surroundings. Writing
earnestly to Mr. Thayer for help in obtaining some foreign
scientific collection, he concludes: “As a mark of your con-
tinued friendship to me, you will excuse my constant appeals
to you for aid, counsel, and comfort.”
The following letter was written to Mr. Thayer by Professor
Agassiz while on his expedition : —
TALCAHUANO, CHILI, April 26, 1872.
MY DEAR SIR, -While I daily think of you and yours, and feel
thankful for the additional comforts you have provided for us on our
journey, I reproach myself that I have not yet given you a direct sign
of life; but the daily pressure of work which the riches of Nature often
40
make rather heavy (and, may I not add, the diminution of strength of
which I have too often strong reminders) makes writing difficult for me,
especially on board the ship. Indeed, I have lately felt that I would
probably be more benefited by the voyage if I could make a change; and
so I have decided on taking a journey by land along the foot of the
Andes, with my good wife, and to join again the ship at Valparaiso.
You have made this possible to me; and I love to thank you for it be-
fore even I start. I have been so unexpectedly successful in tracing
the evidence of the former presence of glaciers in this part of the world,
that by going a little farther inland I may add some valuable informa-
tion to that which I already possess.
On the whole, our journey has been highly successful. Nature is so
prolific that it is impossible for an observer to stop anywhere where
special investigations have not yet been made, without making valuable
additions to human knowledge. These circumstances make up for sev-
eral mishaps which have befallen our ship, and would have caused the
loss of much valuable time, were it not almost immaterial where we
stop for collecting.
It gives me great pleasure to be able to say that I am, on the whole,
much improved. And yet I feel constantly that this journey is almost
too much for me, – at least, if I attempt to do all I should like to accom-
plish, – while little work suits me much better. This has led me to the
conviction that hereafter my place is at Cambridge, in the Museum,
and that I shall henceforth devote all my time to make that institution
all I feel able to make it, and publish at the same time the observations
I have accumulated in my note-books, which might be entirely lost
unless I put them in order in time. I do not, therefore, think of ex-
tending this journey beyond its contemplated range, as I would gladly
have done while I was in Brazil; but propose to be at home in Cam-
bridge in time to attend the October meeting of the Board of Trus-
tees of the Museum, present my Annual Report, and submit my views
concerning the ultimate organization of the Museum. I am now confi-
dent that Massachusetts has one of the great museums of the world. It
remains only for me so to arrange it that everybody who visits it shall
carry away the same impression.
Mrs. Agassiz sends much love to you and Mrs. Thayer, to whom I
beg also to be affectionately remembered. I venture to ask for it in
these words, for I am constantly with you in thought and recollections.
Ever truly yours,
L. AGASSIZ.
NATHANIEL THAYER, Esq.
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JOHN H A R v A R D
AND HIS ANCESTRY.
WATERS.
***** -------~~~
42 y - A
2 24/ 2^ ,” z;
J O H N H A R V A R D
AND HIS ANCESTRY.
BY
‘.
HENRY F. WATERS, A.B.
B O S T O N :
NEW-ENGLAND HISTORIC GENEALOGICAL SOCIETY,
18 SOMERSET STREET.
1 8 8 5.
Reprinted from the New-England Historical and Genealogical Register for July, 1885.
Press of David Clapp & Son.
PR E F A C E .
HE Committee on English Research of the New England Historic
Genealogical Society, under whose direction Mr. Waters is now
pursuing his investigations in England, have on more than one occa-
sion asserted that the method of search adopted by him—so different
from that of his predecessors—would without fail enable him to
bring to light what had escaped the notice of all other antiquaries.
Striking proofs of the correctness of this statement have been already
afforded by the remarkable discoveries Mr. Waters has hitherto
made, and the following paper, in which the parentage and ancestry
of John Harvard are for the first time conclusively shown, will add
still another.
In 1842, the late James Savage, President of the Massachusetts
Historical Society and author of the “Genealogical Dictionary of
New England,” went to England for the express purpose of ascer-
taining what could be learned of the early history of John Harvard;
but although Mr. Everett, then our minister to the court of St.
James, rendered every assistance in his power, no trace of Harvard
could be found, except his signature on taking his degrees at the
University of Cambridge. Mr. Savage tells us that he would glad-
ly have given five hundred dollars to get five lines about him in
any capacity, public or private. Since that date others have made
efforts equally unavailing.
The late Col. Joseph L. Chester, in a letter written the year
before his death to the Editor of the REGISTER (REGISTER, xxxvi.
319), says that he had carried about with him daily for many years
a bit of pedigree of Harvard in the hope of being able to perfect it;
that he thought he had found the will of the father of John Harvard,
but could not yet prove it ; that he disliked to put forward a mere
theory, but hoped to come upon further evidence some day.
4
At a meeting of the New England Historic Genealogical Society
held in Boston June 3, 1885, a paper by Miss Frances B. James
of Cambridge, Mass., was read, on “John Harvard's English Home,
a Caveat in Behalf of Devonshire.” It contained the results of
some researches made by her in the summer of 1883, in Plymtree,
co. Devon, England, where there formerly lived a family of Har-
ward or Harvard, but no claim was made by her that any relation-
ship could be shown to exist between this family and that of John
Harvard.
Mr. William Rendle, in an article in the “Genealogist” for April,
1884, on “Harvard University, U.S., and the Harvards of South-
wark,” gives a list of certain Harvards of the Parish of St. Saviours
noted by him, but he failed to find the baptism of John Harvard,
and was unable to connect him with this family of Harvards. In
the South London Press for April 11, 1885, and in the Athenaeum
for April 18, 1885, Mr. Rendle has something further to say about
the Harvards. He gives the date of baptism of a John Harvye,
whom he says he believes to be the founder of Harvard College, but
is unable to prove the fact, and offers no evidence to support it.
These articles, however, contain nothing new. Everything of im-
portance in them had been previously made known to us by Mr.
Waters. The record of this very baptism had been already found
by him, and a copy of it sent to the Committee. Mr. Rendle's
knowledge of it seems to have been obtained from a person to whom
Mr. Waters had mentioned it as a discovery of his own, and its
appropriation by Mr. Rendle without acknowledgment and its publi-
cation in this manner was certainly a most extraordinary proceeding.
It had long been known that there was a family of Harvards in
St. Saviours Parish, Southwark; that John, son of Richard, was
baptized there 11 Dec., 1606; another John, son of Robert, bap-
tized 29 Nov., 1607; another John, son of John, baptized 2 Feb.,
1611; and still another John, son of John, baptized 10 April, 1614:
but whether the benefactor of the College was one of these, or whether
he was of Southwark at all, has not been known, until now at last
the proof is presented to us by Mr. Waters. Col. Chester, as we
have seen, years ago surmised that he was the son of Robert Harvard,
but, like a true genealogist, waited for evidence before making a posi-
tive statement. Probably nearly every one in America who was inter-
ested in Harvard and had given the subject much thought, suspected,
5
at least, if not believed, that he was the son of Robert Harvard of
Southwark. So that Mr. Rendle offers nothing new and merely
adds his belief to theirs, for which he fails to offer evidence. That
Southwark was a field for persecution and therefore its people must
have been ready to emigrate to New England, carries no weight, for
there was persecution in other parts of England; and it would be
difficult for Mr. Rendle or any other investigator to show that more
people came to New England for religion's sake from the county of
Surrey than from the counties of Somerset, Dorset or Wilts, in all
of which Harvards were to be found. Could he say that John
Harvard was not from either of these counties, or from St. Katherine's
near the Tower in co. Middlesex where a family of Harvards lived,
or that he was not the son of Robert Harvey, alias Harverde of
Rugby in Warwickshire?
Mr. Waters, however, is the first to show conclusively that John
Harvard, from whom the College takes its name, was one of the
sons of Robert Harvard of the Parish of St. Saviours, Southwark,
London, and Katherine (Rogers) Harvard his wife, and that he was
baptized in that Parish Nov. 29, 1607. Ample proof of this is af-
forded by the documentary evidence now for the first time published,
to which the attention of the reader is directed. The parentage of
John Harvard is no longer a mystery. Mr. Waters gives us here,
among others, the wills of his father and mother, his brother Thomas
Harvard, his uncle Thomas Harvard, his aunt by marriage Margaret
Harvard, his step-fathers John Elletson and Richard Yearwood, and
his father-in-law John Sadler.
But although so much has been accomplished that a few months
ago would have been thought impossible, much remains to be done.
There are other fields of research as yet unexplored, which will richly
repay all the expenditure of time and labor which a thorough investi-
gation of them will require.
The expense of the search thus far has been met by voluntary
contributions of the Alumni, particularly the Harvard Club of New
York. JOHN T. HASSAM.
1+
JOHN HARVARD AND HIS ANCESTRY.
WILLS.
MEMORANDUM That the tenth daye of July 16i John Harvard of the
pishe of Sº Sauior in Southwarke wººin the County of Surrey Butcher be-
inge then sicke and very weake in body but of good memory, beinge moved
to dispose of his temporall estate uttered theise or the like wordes in effect
(in the presence of us whose names be subscribed) viz', I give unto Francis
Rodgers tenn poundes And all the rest of my goodes and estate I giue
unto my brothº Thomas Harvard, and I make my said brother Tho: Har-
vard my sole Executor, And to witnes the same we haue hereunto sett our
handes Tho: Harvard his mºke Ric" Yearwood Robert Harvard his mºke.
The above will was proved 21 July 1611 by Thomas Harvard brother
and executor &c. 158, Berry
(Archdeaconry of Surrey).
Marche the 27. Anno ió22.
IN THE NAME OF GOD, AMEN. I Thomas Harvard of the precinct of
Sº Katherins neere the tower of London beinge sicke in bodie but of per-
fect memory thankes be to God doe ordaine this my last will and testament
in manner and forme followinge. first I doe bequeath my Soule into the
handes of almightie god that gave it me, and to his sonne Jesus Christ that
Redeemed me by whose death and merritts I doe trust onelie to be saved
and my Sole recey'ved into eternallioye. for my bodie to be committed to
the Earthe from whence it came and to be buryed at the discretion of my
Executrix hereundernamed And for the rest of the porcion of goodes
which the lorde hath lent me duringe my life my will is my welbeloved
wife shall fullie and whollie enioy it whatsoeuer and to give unto my child-
ren that the lorde hath sent me whatsoever it pleaseth her into whose
handes after my decease I comitt all that my estate and porcion ether in
England or elsewhere beyonde the Seas and this I ordaine as my last will
and testament and disanull all former whatsoeuer making my deerly be-
loved wife Margarett Harvarde my sole executrix. In witnes whereof I
have hereunto put my hande. The marke of Thomas Harvard.
Subscribed and deliuered by Thomas Harvard in the presentes of us
hereunder named Edmond Swettenham the marke of Ann Blaton.
8
PROBATUM FUIT TESTAMENTUM suprascriptum apud London coram vene-
rabili viro magro Richardo Clarke legum doctore Surrogato venerabilis viri
domini Willimi Bird militis legum etiam doctoris Curie Prerogatiue Cantuar-
ens' magfi Custodis siue Commissarii ltime constituti. Vicesimo tertio die
mens" Augusti Anno Dñi Millesimo sexcentesimo vicesimo secundo. Jura-
mento Margarete Harvard relicte et executricis dicti defuncti in eodem testa-
mento nominat. Cui Commissa fuit Administracio bonorum iurium et credi-
torum dicti defunct de bene et fideliter administrañd &c. Ad sancta Dei
Evangelia Jurat. 78, Saville.
July the xxviº: 1625
THE LAST WILL AND TESTAMENT of Margaret Harwar” of Sº Kathe-
rines widdowe sicke and weake in bodie but in perfecte memorie thanks be
gee geven to god in this manner and forme followeinge ; first I bequeathe
my soule into the hands of Allmighty god that gave it me, and to Jesus
Christ my saviour that redeemed me hopinge and trustinge only to be saved
by his merritts death and passion and my bodie I committ to the earth
from whence it came and to be buried att the discretion of my executors
hereunder named And my worldly goodes I bequeathe in this manner and
forme followeinge ; first my will and desire is that the howse I now dwell
in, commonly called by the name of the Christopher scittuate and beinge in
Sº Katherins neere the Tower of London be sould to the best advantage,
And to him or her that will give most money for it, And beinge sould the
money to be devided in this manner followeinge, The money to be devided
between my three daughters Margarett Harward Alse Harward, and Jone
Harward, And if any of my said daughters doe chance to dye before their
legacies come to their hands or growe due, my will is that their parte or
parts shall come to the survivors of those three; Item my will is and I be-
queathe unto John Walbank my sonne the some of Twenty Pounds of Cur-
rant English money if he be livinge And if it please god that he be dead
then my will is that this Sonne Thomas Walbancke my Grandchilde shall
have it paid him when he comes to lawfull Age. It my will is and be-
queath unto my daughter Susan Walbanck the some of five Pounds to be
paid unto her when my said howse is sould It. my will and desire is that
those worldly goodes that god hath blessed me withall shall be equally de-
vided betwixt my said three daughters Jone, Margarett Harward and Alse
Harward parte and parte alike ; every one there share; And if any of
them happen to dye before their part come to their hands my will is it shall
come to the survivor or survivo”. It my will is and I doe give unto Tho-
mas Wallbanck my grandchild the some of Tenn Pounds to be paid unto
him out of my two daughters poróóns Jane and Alse. It. I give and be-
queathe unto Thomas Harward the sonne of Thomas Harward my late
husband the some of Tenn Shillins. It. my will is and I bequeathe unto
my frend Edmond Swettenham of East Smithfeild the some of fourty
shillinges to make him one gould ringe withall to weare for my sake; And
I doe ordaine my daughter Margarett Harward my sole executrix of this
my last will and testamente ; And I doe appointe and desire my two low-
inge frends Robert Evebancke and Edmond Swettenham my two over-
seers of this my will and I doe give unto Robert Evebanck for his paines
twenty shillings; The marke of Margarett Harward.
* This name in the original will appears invariably as Harvard.—H. F. W.
9
Witnes Edmond Swettenham Rob't Ewbancke The marke of Marie
psons.
PROBATUM fuit Testamentum suprascriptum apud London corå Magis-
tro Thoma Langley Cličo Surrogato venerabilis viri domini Henrici Mar-
ten Millitis legum doctoris Curie Prerogative Contuariensis Magistri Cus-
todis sive Commissarii legitime constituti Nono die mensis Septembris An-
no Dñi Millesimo sexcentesimo vicesimo quinto, Juramento Thome Goul-
dan Notarii Publici Procuris Margarete Harward filie et executricis in
huñoi Testà nominat Cui Commissa fuit Administrado bonorum iusium et
creditorum d6i defunct de bene et fidelit Administrafid eaderm Ad Sancta
Dei Evangelia Jurat. 91, Clarke.
IN THE NAME of GoD AMEN. The eight and Twentyth daie of July
Anno Dñi one Thousand sixe hundred Twentie five, & in the first yere
of the Raigne of our Soveraigne lord Charles by the grace of God Kinge
of England Scotland fraunce and Ireland defender of the faith &c. I Robert
Harvard of y" pish of Sº Saviours in Southwarke in the Countie of Surrey
Butcher, being not well in body but sound in minde in memory (laud and
praise bee to allmightie god therefore) doe make and ordayne this my pre-
sent last will and Testament in manner and forme following that is to saie,
first and principally I bequeath and commend my soule into the hands of
allmighty God trusting through his mercie and for the meritts of his deere
Sonne my lord and Saviour Jesus Christ to haue forgivnes of all my Sinnes,
and after this life ended to bee made ptaker of life eu'lastinge in the kingdome
of heaven And I will that my body bee decently and Christianly buried in
the pish Church of Sº Saviours aforesaid, after the discretion of my execu-
trix hereundernamed, And as touching that Temporall estate of goods and
Chattles wherew” it hath pleased god of his goodnes to blesse, my minde
and will is as followeth vizt, Inprimis I give and bequeath unto the
poore of the pish of Sº Saviour aforesaid forty shillings and to bee payd
and distributed according to the discredón of my said Executrix & Over-
seers hereunder menčned Item I give and bequeath unto John Harvard
my Sonne Two hundred pounds To bee payd unto him when he shalbee
accomplish his age of one and Twentie yeres Item I give & bequeath
unto Thomas Harvard my Sonne the like soñe of two hundred pounds to
be payd likewise unto him when he shall accomplish his age of one and
Twenty yeres Item I give and bequeath unto Peter Harvard my Sonne
the like Sońe of Two hundred pounds to bee payd likewise unto him when
he shall accomplish his age of one and Twenty yeres And if any of them
my said three sonnes depart this life before his said pte and poróón shall
growe due to bee payd by this my will. Then I give y “pte or poréon of
him deceaseinge to the residue of them Surviving equallie to bee devided
betwixt them, or wholly to the Survivor yf two of them decease And if it
shall happen all my said three Children to decease before they shall accom-
plish theire severall ages of twenty and one yeres as aforesaid Then and in
such case I give and bequeath unto my Cosin Thomas Harvard and his
Children fifty pound to bee payd within three moneths next after the de-
cease of the last Child Item I give and bequeath unto IRobert Harvard my
godson soue of my said cosin Thomas Harvard Ten pounds to be payd unto
him when he shall accomplish his age of one and Twenty yeres All the rest
and residue of my goods and Chattles whatsoever my debts (if any be) be-
inge first payd and my funerall expences discharged I give and bequeath
unto Katherin Harvard my welbeloved wife whom I constitute ordayne
10
and make full and sole Executrix of this my last will and Testament And
it is my will that shee shall haue the use of my said Childrens poróðns for
theire educacon and bringing up untill the same shall growe due to them
as aforesaid And I make and ordayne my good neighbour and friend Mr
Richard Yearwood Citizen & Grocer of London and the said Thomas Har-
vard my Cosin Overseers of this my last will and Testament desireing them
as much as in them shall consist and lie to see the same pformed according
to my true intent and meaneing herein declared And I give unto them for
theire paymes to bee taken in seeing this my will performed Twenty shil-
lings a peece to make them rings for a remembrance Provided alwaies &
I will and ordayne hereby that my saide wife shall wº sufficient Suerties
w"in three moneths next after my decease or at least before shee shalbe
espoused or married agayne to any other, enter and become bound in the
sofie of one Thousand pounds unto my said Two Overseers, if they shalbe
both liveing or to the Survivo" of them if either of them shallbee deceased,
w" condićon to pay the pts and porúons of my said Children wºn I haue
before bequeathed unto them, accordinge to my true intent and meaning
herein declared, and at such tyme or times as before is limyted and set
downe for the payment thereof, In witnes whereof I the said Robert Har-
yard haue to this my p’sent last will and Testament put my hand and Seale
the daie and yere first aboue written, The marke of the said Robert Har-
verd Sealed acknowledged and delivered by the said Robert Harverd
for and as his last will and Testament the daie and yere first aboue written
in the presence of Ric: Sandon Scr The mºke of Richard Rayner.
PROBATUM FUIT Testamentum suprascriptum apud London coram magis-
tro Thoma Langley Cličo Surrogato venerabilis viri Domini Henrici Mar-
ten militis legum doctoris Curie Prerogative Cantuariensis magistri Custo-
dis sive Comissarii ltiñe constituti Sexto die mensis Octobris Anno Dñi
millesimo sexcentesimo vicesimo quinto Juramento Katherinae Harvard
Relicte dicti defuncti et executricis in huiusmodi Testamento nominat Cui
Comissa fuit administrat &c. de bene et fideliter administrando eadem, ad
sancta dei Evangelia Jurat. l 11, Clarke.
JoBN ELLETson citizen and cooper of London 15 June, 1626, proved
the last day of June, 1626. To M. William Quelch, clerk, sometimes min-
ister of St Olaves in Southwarke, forty shillings, & to Mº Archer, minister
of Sº Saviours in Southwarke, twenty shillings, within six months after my
decease if they be then living. To my sister's son Stephen Hall, Bachilor of
Divinity at Cambridge twenty pounds, to be paid him within six months
next after my decease. To my sister Elizabeth Rigate full power and
authority to dispose of the house wherein she now dwelleth for the term of
two years next after her decease conditionally that a pepper corn be paid
yearly therefore to my executrix. The residue of the term of years unex-
pired of the said house I will and bequeath unto my nephew Robert Ellet-
son, son of my late deceased brother Robert Elletson, his executors and
assigns. To my aforesaid nephew Robert all those my two messuages or
dwelling houses, &c. situate & being in the liberties of East Smithfield in
the parish of S' Buttolph's Algate, to him and to the heirs of his body law-
fully to be begotten, and, for want of such issue, to his brother William
Elletson & to the heirs of his body, &c., and, for lack of such issue, to
George Elletson his brother and to his heirs forever, which houses I bought
and purchased of M. Norton, gentleman. And my will and mind is that
my loving wife Katherine Elletsonne shall have her thirds out of the same
11
during the term of her natural life. Item I give and bequeath unto my
said loving wife Catherine Elletson and her assigns during her natural life
the yearly sum of twelve pounds of lawful money Of England to be paid
unto her quarterly and to be issuing and going out of all and singular my
lands tenements and hereditaments whatsoever lying and being in the sev-
eral parishes of Alverstoke and Rowner in the County of Southampton.
To my sister in law, Mary Elletson, and her two daughters, Elizabeth
Elletson and Margaret Elletson, and their assigns, during the natural life
of my said loving wife Catherine Elletson, the like yearly sum of twelve
pounds, &c. To my nephew George Elletson, son of my said brother
Robert, all that my messuage, barns, lands & commons, &c. called or known
by the name of He meleys, situate in the parish of Alverstoke (with re-
mainder first to William, then to Robert, brothers of the said George),
which aforesaid premises I bought and purchased of Thomas Rabenett,
mariner. To nephew Robert my messuage, &c. situate in Brockhurst in
the parish of Alverstocke and Rowner, &c. (with remainder to his brothers
William and George, &c.) which premises I bought of Robert Nokes of
Brockhurst, yeoman. To nephew William my messuage, &c. in Newton
in the parish of Alverstocke, &c. (with remainder to Robert and George),
which premises I bought of my brother Robert Elletson. To Thomas
Elletson, son of Anthony Elletson, born at Lymehouse in the parish of
Stepney, the sum of ten pounds, to be paid him at the age of one and twenty
years if he shall be then living. To Robert Wilson in Southwark all such
sum or sums of money which he oweth me upon one certain obligation
conditionally that he give unto Mº Thomas Foster Bailiff of the Borough of
Southwark, as a legacy and bequest from me the sum of three pounds, &c.
within three months next after my decease, and three pounds more to the
poor of the parish of Sº Olaves, where he is a parishioner, &c. &c. To my
kinswoman Jane Merricke one quarter or fourth part of the good Bark call-
ed the Jane of Gosport, with the fourth part of the tackle, munition and
apparell, which said Bark is in partnership between her husband Walter
Merricke and myself. And I give and bequeath to my sister Mary Ellet-
Son and her two daughters the other quarter or fourth part of the same
Bark. To my sister Elizabeth Bygate, widow, twenty pounds yearly &
every year during her natural life, to be paid her by five pounds the quar-
ter, or within one and twenty days after the quarter day, out of the tenements
which I lately purchased by lease of the wife of James Turner, holden by
the masters, brethren and sisters of S' Catherine's and which is situate
and being in the parish of All Saints Barkin near unto Tower Hill. To
my eldest brother George Elletson, dwelling in the County of Lancaster,
five shillings, conditionally that he shall give to my executrix a general ac-
quittance of all demands whatsoever from the beginning of the world until
the day of the receipt of the same legacy. To my brother William Ellet-
son, dwelling in the said County of Lancaster, ten shillings (on the same
condition). To my sister Agnes Stables, the sum of twenty shillings, to be
paid her upon lawful demand. To my sister Ellen Towers, dwelling in the
County of Laucaster, the sum of twenty shillings (upon lawful demand). I
absolutely release and discharge Richard Edwards, dwelling at White Wal-
than in the County of Berks, of all sum or sums of money which he oweth
me, and particularly of one specialty of thirty pounds which I freely forgive
him.
Item I give unto my son in law Joseph Knapp and unto Agnes his wife,
my kinswoman, all that my house, together with my buildings, yards and
12
appurtenances thereunto belonging, and to his son John Knap after his de-
cease, during the term of a lease which I took of Mº John James, gentleman,
paying the rents, &c.; also the goods, household stuff &c in and about the
said house, which is in their possession and which I left freely to them at my
coming away from Mill Lane. To my said son Joseph Knapp all that this:
third part and bargains of boards whatsoever remaining in the County v.
Sussex which is in partnership between Mº Anthony Keeme, Mº Richard
Waker and myself, citizens and coopers of London. To the said Joseph
my best livery gown and my second cloak. Item I give and bequeath two
silver cups, gilded, with my name to be ingraven upon them, to the value of
twenty pounds, which shall be bought by my executrix and given to the
company of coopers of the city of London within six months next after
my decease. To twenty poor people which is in the Almshouse at Rat-
cliffe twenty shillings to be equally divided amongst them. To M* Suttey,
my mistress, dwelling at Ratcliffe, over and above the part of the said gift
of twenty shillings, the sum of ten shillings.
Item whereas Hugh Horsell of Southwarke, Innkeeper deceased, by his
last will and testament did give and bequeath unto his children the sum of
six hundred pounds as by his said will appeareth, of the which I have al-
ready paid the sum of one hundred pounds to Mary one of the children of
the said Hugh Horsell for her legacy, as also the sum of twenty pounds
which I gave with Nicholas Horsell, one of the said children, to bind him an
apprentice, so that there is remaining now of the said six hundred pounds
the sum of four hundred and eighty pounds to be paid unto them as in their
said father's will more at large and plainly appeareth. Therefore my desire
and meaning is and it is expressly my will that my executrix hereafter nam-
ed shall truly pay and satisfy unto the children of the said Hugh Horsell
or to the survivors of them the said sum of four hundred and eighty pounds
in every point according to their father's will and to see them well educated
and brought up in all things necessary in the fear of God and in learning.
And I do further will that my executrix shall within one month next after
my decease enter into obligation of one thousand pounds to my overseers
hereafter named in every kind to see these legacies performed and the said
children well brought up and educated. To the poor of the parish of Al-
verstocke and Gosport the sum of twenty shillings. To the poor of the
parish of All Saints Barking in Tower Street, twenty shillings. To George
Browne my kinsman twenty shillings to be paid upon lawful demand. I
absolutely acquit and discharge Richard Graye, waterman, a bill of debt of
three pounds which he oweth me. I absolutely acquit and discharge Nicho-
las Parsons, ostler at the Queen's Head in Southwark, of a debt of twenty
and eight shillings which he oweth me. To my kinsman William Hughs
and Agnes his wife one hundred pounds &c.
Item I give and bequeath unto my said loving wife Catherine Elletson
the lease of all and singular the premises which I hold of the Master, breth-
ren and sisters of Sº Katherines, together with all the rents and profits that
shall arise by reason of the same ; to have and to hold the same lease and
the rents and profits thereof unto my said loving wife, Katherine Elletson,
for and during the term of her natural life, she paying the rents and per-
forming the covenants contained in the same lease on my part to be per-
formed, the remainder of the years that shall be to come from and after the
death and decease of my said wife; and the rents and profits that shall arise
by reason of the same I give and bequeath unto my said kinsman Robert
Elletson, son of my said brother Robert Elletson, and the issue of his body
13
lawfully begotten, And if it shall fortune my said kinsman to die and de-
part this life before the expiration of the term of years in the said lease
granted having no issue of his body lawfully begotten then living that then
I give and bequeath the said lease and the benefit and profits thereof aris:
ing unto his brother William Elletson, his executors and assigns. The rest and
residue of all and singular my goods and chattels whatsoever moveable and
immoveable not before by me given and bequeathed, my debts and legacies
being paid and my funeral expenses discharged I wholly and absolutely give
and bequeath unto my said loving wife Catherine Elletson whom I make
and ordain the sole and only executrix of this my present last will and tes-
tament, desiring her to see the same in all things performed according to
my mind and meaning herein plainly declared, and I do hereby nominate
and appoint my loving friends Mº Anthony Kemme, M. George Preston
and M. Richard Waker, citizens and coopers of London, overseers thereof,
desiring them according to my trust in them reposed to be aiding and as-
sisting to my said executrix in the due “exeguition ” of this my present
last will and testament; and I give unto each of them for their pains tak-
ing therein the sum of three pounds apiece &c. Provided always that if
my said wife shall not be contented to accept of the said legacies before
given unto her and to pay and perform the legacies herein by me bequeath-
ed according to the true intent and meaning of this my present last will
and testament then my will is that she shall have only so much of my es-
tate and no more as shall justly belong unto her by the custom of the city
of London and then I make and ordain my said kinsmen William Hewes
& Robert Elletsonne, son of my said brother Robert Elletson, executors &c.
Wit: William Manbey Scr. Edward Thomas William Hedges.
91, Hele.
RICHARD YEARwoop of Southwarke in the County of Surrey and citi-
2en and grocer of London, 8 September 1632, proved 6 October 1632,
and confirmed by Decree of the Court in the last session of Trinity Term
1633, After my funerals done and discharged I will that an Inventory shall
be taken of all my estate in goods, chattells, wares, merchandizes plate and
other things whatsoever and be indifferently valued and appraised, and that
therewithall the debts which I do owe shall be first duly satisfied and paid.
But because the debts which my wasteful son hath brought me unto are
so great that I fear much that my personal estate will not be sufficient to
satisfy the same or at the least will not be collected and got in convenient
time to give that satisfaction which is fit and just much less to pay and sat-
isfy such other legacies as by this my will I have appointed and given I
do therefore will, ordain and appoint that my executors hereafter named
or the survivor of them with as much convenient speed as they can after
my decease for the speedier payment of my debts and discharging of my
legacies shall sell- and dispose all those my tenements and hereditaments
situate lying & being in the parish of St Mary Magdalen of Bermondsey
within the County of Surrey, near the church there, which I purchased of
Walter Oliver, being three tenements or houses &c in the several occu-
pations of Thomas Miller Robert Fisher and John Bould their or some
of their assignee or assignees. And my will is as well the leases which I
bought of the same and which are in being in friends' names as also the in-
heritance of the said houses be sold for the uses aforesaid by mine execu-
tors or the survivor of them and by such other persons and friends who
have any interest or estates in the same for my use or benefit. They shall
2
14
sell &c., all that my tenement &c. in the tenure or occupation of John
Blacke, in the parish of Lingfield within the County of Surrey which I
bought of Edmond Roſey, and my tenement &c. in the parish of Frinsbury
within the County of Kent, now or late in the tenure & occupation of
Jones, which I bought of Henry Price. I give and bequeath unto Richard
Yearwood my son all that my manor or farm with the appurtenances &c.
in the parish of Burstow within the County of Surrey, now or late in the
tenure &c. of Edmond Rofey &c. to have & to hold during the term of his
natural life (then follow conditions of entailment on the issue of the body of
the said Richard Yearwood the son). And for default of such issue to
Hannah Payne my daughter during her natural life; and after her decease
to Richard Payne her second son and the heirs of his body lawfully to be
begotten ; and for default of such issue to my right heirs forever. Item I
give unto the poor of the parish of Sº Saviours in Southwark inhabiting
within the liberty of the Borough of Southwark whereof I am a parishion-
er the sum of ten pounds &c. I give unto M' Morton and Mº Archer min-
isters of the said parish forty shillings apiece. I give to William Brayne
apprentice with Nicholas King grocer twenty pounds &c. to be paid unto him
at the expiration of his time of apprenticeship. I give unto Margaret Dal-
lin wife of Christopher Dallin cooper the sum of ten pounds &c. to be
paid unto her in five years by forty shillings a year. To Hannah Groue
daughter of Richard Groue of Middle Wiche in the County of Chester ten
pounds at day of marriage or age of twenty and one years.
Item I give to Katherine my well beloved wife her dwelling in all that
part of my dwelling house wherein I do now live during so long time as she
shall continue a widow and dwell in the same herself if my lease thereof
shall so long continue, my said wife paying therefore yearly to my ex-
ecutors hereafter named the sum of five pounds per annum by half yearly
payments &c. And I do further give unto her all such household stuff and
so much value in plate as she brought with her when I married her. And
I give and bequeath unto my cousin Nicholas King grocer and Margaret
his wife and the longer liver of them the lease of my now dwelling house,
onely I will that my said wife do dwell and continue in such part thereof
as I have before appointed during such time as aforesaid. To my loving
friend and cousin Mº Stephen Street grocer ten pounds. The said Nicho-
las King and Stephen Street to be executors.
The residue and remainder of all my personal estate and which shall re-
main of my lands and tenements by me appointed to be sold as aforesaid,
my debts being paid and my funeral expenses and legacies discharged, I
will the same shall be distributed and divided by my executors in man-
ner following viz' two third parts thereof unto Richard Yearwood my son
if he shall be then living and that my said executors shall discern him to
be reformed and become a frugal man, and the other third part thereof I
will shall be divided to and amongst my daughter Payne's eight children
now living viz' Edward, Richard, John, George, Anne, Timothy, Susan and
Katherine, and the survivors of them ; the same to be paid to their father
for their uses. And I appoint my loving friends M. Drew Stapley grocer
and my son in law Edward Payne to be overseers of this my will. And I
do give to either of them for a remembrance of my love and their pains to
be taken therein the sum of five pounds apiece.
Wit: Thomas Haruard, William Frith William Sheappard John Fincher.
13 march 1661 administration de bonis non was granted to his daughter
Tiannah Payne, the executors being dead. 98, Audley.
15
IN THE NAME OF God AMEN. I Katherine Yarwood of the parrish of
Sº Saviours in the Burroughe of Southwarke in the Countie of Surrey
widdowe being at this tyme weake in bodie but of perfect memory praised
be God therefore doe ordayne this my last will and Testament revoakeing
all former wills and Testamentes whatsoever first I bequeath my soule
into the mercifull hands of my Deare Redeemer Jesus Christ the eternall
sonne of God whoe by his holy Spirit as my trust and hope is will p'serve
me to his heavenly kingdome; And my bodie to be interred at the discre-
tion of my executors And for my worldly goods I thus dispose of them.
Inprimis I give to my eldest sonne John Harvard Clarke all that my mes-
suage Tenement or Inne comonly called or knowne by the name of the
Queenes head in the Borroughe of Southwarke aforesaid with the appurte-
nances and all my deedes and writeings touching and concerning the same
and all my estate right title interest terme of yeares and demand whatsoever
which I have of and unto the same and of and unto everie part and parcell
thereof. Item I give unto the said John Hervard and unto Thomas Her-
vard my sonne equally to be devided betweene them all my messuages Ten-
ements and hereditaments whatsoever wº their and every of their appur-
tenances scituate and being in the parrish of All Saintes Barkeing nere unto
the Tower of London whereof I am possessed under two severall leases
made by the Master brethren and Sisters of the Hospitall of S’Katherine's
nere the Tower of London unto John Elletson deceased ; and all my deedes
and writeings touching and concerning the same. And all my severall and
respectiue estates right title interest terme of yeares and demaund which I
have of and unto the same, and of and unto every part and parcell thereof.
Nevertheless my will and meaneing is and soe I doe hereby appoint and de-
clare that the said John Harvard and Thomas Harvard their executors
Administrators and Assignes shall yearly and every yeare dureing the con-
£inuance of the severall tymes in the said severall leases graunted, paye or
cause to be payed out of the rentes issues and proffits of the said last men-
Coed premisses at the feast of the nativity of our Lord God twentie shillings
to fower poor people that are reputed of honest conversation dwelling in the
parrishe of Sº Saviours aforesaid by five shillings apeece And that the
said John Herward and Thomas Hervard their executors Administrators
and Assignes shail paye or cause to be payed the residue and remainder of
the rentes issues and proffites of the said last menőoned premisses unto such of
the Children of Hugh Harsall late of the Burrough of Southwarke aforesaid
Innkeeper deceased as have not their poróons paied and was given and be-
queathed unto them by the last wills & testam” of the said John Ellet-
son and Hugh Harsall or either of them untill such tyme as the said Child-
ren shall have all their said poréons paied unto them and afterwards that
the said John Hervard and Thomas Herwarde their executors adm'strat”
and assignes shall enjoye the residue of the said rentes issues and profits of
the said last mendoned premisses to their owne proper uses and behoofes
equally to be devided betweene them. Item I give to my said sonne John
Hervard two hundred and fiftie poundes in money And I doe appoint two
hundred pounds parcell thereof to be payed w” the moneys due upon one
obligation of the penali sofie of fower hundred poundes beareing date the
first daye of this instant moneth of Julie made by my sonne Thomas Her-
vard unto my Overseer M. Mooreton for my use condicòned for the pay-
ment of two hundred pounds at or upon the first daye of January now next
ensueing Item I give to my sonne Thomas aforesaid one hundred poundes
in money Item to the Children of my Brother Thomas Rogers I give for-
16
tie shillings a peece. Item to the poore of this parrish of St Saviours I give
fºrtie shillinges . Item to Mº Archer one of our Ministers I give twentie
shillings. Item to M* Moreton our other Ministers wife I give my best
gould wrought Coyfe which of my two best shee please to make choice of
Item my Sister Rose Reason and my sister Joane Willmore to each of them
I give a ring at the discretion of my executors Item to old Mº Blanchard
I give my best paire of Gloves Item to my Cosen Joseph Brocket the
younger I give twentie shillings; and to my Cosen Mary Brocket I give
my best scarlet Petticoate or the value thereof in money at the discretion of
my executors Item I make and ordayne my two sonnes John and Tho-
mas Hervard aforesaid ioinct executors of this my last will and Testament.
Item for the overseers of this my last will and Testament I appoint my
loveing frend Mº Moreton our minister of St Saviours aforesaid for one,
and to him in token of my love I give three pounds and my paire of
silver hafted knyves; And for my other Overseer I appoint my Cosen
Mº Thomas Hervard Butcher of Sº Saviours aforesaid and to him like-
wise in token of my love I give three pounds Item I give to my said ex-
ecuto" and Overseers eight pounds by them to be bestowed on such Christ-
ian poore as they thinke fitt And I will that all my legacies formerly giv-
en and bequeathed except the two hundred pounds payable by the obliga-
Con as aforesaid shalbe paied and deliuered by my executors wººin one moneth
after my decease The residue of all and singular my goods Chattells and
psonall estate after my debts payed and funeralls discharged I give and
bequeath unto my said sonnes John Hervard and Thomas Hervard equally
to be devided betweene them. In wittnes whereof I have unto every sheete
being Seaven in number put to my hand and have sealed the same this sec-
ond daye of Julie in the eleaventh yeare of the reigne of our Souaigne
Lord Charles by the grace of God of England Scotland france and Ire-
land Kinge Defender of the faith &c. Annoq, Diä 1635. The marke of
Catherine Yarwood.
Memorandum that theis wordes viz' portions in the seaventh lyne and
John in the fourteenth lyne of the fourth sheete were interlyned and after-
wards this will was read sealed and published to be the last will and Tes-
tament of the said Catherine Yarwood in the psence of us; Sealed and
published by Katherine Yarwood aforesaid in the presence of us William
Brayne Robert Greaton William Sheap.
PROBATUM fuit Testamentum suprascriptum apud London coram mrö
Johanne Hansley Clićo Surrogato veſiabilis viri Dài Henrici Marten mili-
tis legum etiam Döoris Curie Prerogative Cantuar magri Custodis siue
Com” ltiñe constituti vicesimo septimo die mensis Julii Anno Dñi mil-
lesimo sexcentesimo tricesimo quinto Juramentis Johis Hervard et Thome
Hervard filiorum deč defunctæ et executorum in huiusmodi Testamento
nominatorum Quibus comissa fuit administrado omni et singuloru bonorū
iuriti et creditorii deae def de bene et fideliter administrando ead” &c. Ad
sancta dei Evangelia Jurat. 77, Sadler.
IN THE NAME OF GOD AMEN the fiefteenth daie of July Anno Domini
one thousand six hundred thirtie and six And in the twelueth yeare of the
raigne of our Soveraigne Lord Charles by the grace of god kinge of Eng-
land Scotland fraunce and Ireland Defender of the faith &c I Thomas
Harvard of the pishe of Saint Olave in Southwarke in the County of Sur-
ry and Cittizen and Clothworker of London beinge att this presente sicke
17
and weake in bodie but of good and pfecte mynde and memorie all laude
and praise be given to Allmightie god therefore and consideringe with my
selfe the frailtie and mutabilitie of this present life and the certaintie of
death, And to the end that I may bee the better prepared and settled in my
mynde whensoever it shall please god to call me out of this transitorie life
I doe by the pmission of god make and declare this my last will and Testa-
ment in manner and forme followinge, That is to saie, first and principally
I comend my Soule into the hands of Allmightie god hopeinge aud assuredly
beleevinge through the death and passion of Jesus Christe his only sonne and
alone Saviour to obtaine Remission and forgivenes of all my Synns and to
be made ptaker of everlastinge life My bodie I comitt to the earth from
whence it came to be decently buried att the discredon of my executors
here under named, And as concerninge all such worldly goods Chattelles and
psonall estate as it hath pleased god to endue me wº in this life I give and
bequeath the same in manner and forme followinge, That is to saie Inpri-
mis I give and bequeath unto my deere and welbeloved wife Elizabeth
Harvard the some of fower hundred poundes of lawful English money to
be paied unto her within six monethes next after my decease More I giue
and bequeath to my said lovinge all my plate and howsehold stuffe ex-
ceptinge only my best standinge bowle of silver guilte and my great Cheste
with two lockes Item I give and bequeath unto my said lovinge wife Eliz-
abeth Harvard one Annuitie or yearely payment of thirty poundes of good
and lawfull Englishe mony to be yearely due goeinge out issuinge and pay-
able unto my said wife out of all those messuages and Tenementes with
thappurtenfices And the rentes issues and proffites of them Scituate lyinge
and beinge att or neere Towerhill in the parishe of All Saintes Barkinge in
London which I hould ioyntly togeather with my brother John Harvard
by vertue of a lease to us thereof made by the M. brothers and sisters of
the Hospitall of Saint Katherines neere the Tower of London, To have and
to hould the said Annuitie or Rente charge of Thirtie poundes p Anfi unto
my said loveinge wife for and duringe the tearme of her naturall life to be
paied unto her att fower feastes or tearmes in the yeare, That is to saie att
the feastes of Saint Michaell Tharchangell, the birth of our lord god, Than-
nuntiacon of the blessed virgin Marie and the Nativitie of Saint John Bap-
tist or within one and twentie daies nexte ensuinge everie of the same feaste
daies by equall and even porcons, The first painmente thereof to beginn and
to be made att the feaste of the feastes aforesaid which shall first and next
happen and come after my decease, or within one and twentie daies then
nexte ensuinge with power to distreyne for the same Annuitie in and upon
the said tenementes or anie of them, if the same afíuitie shall happen to be
behinde and unpaied contrary to this my will, Provided that my father in
lawe M'. Nicholas Kinge or his heires att any time duringe the tearme of
my naturall life doe assure and conveie unto me and my heires or within
six moneths after my decease to my executors hereunder named or to such
pson or psons as I the said Thomas Harvard shall by anie writinge under
my hand name and appointe, And theire heires and assignes, And to such
use and uses as I shall thereby lymitt and declare and in such good sure
and sufficiente manner and forme as by learned Councell shall be advised
and required All that messuage or Tenement with thappurtenfices and
the rente and Reveróon thereof scituate and beinge in or neere Shippyard
in the pishe of Saint Saviours in Southwarke now or late in the tenure or
occupation of Owen Jones or his assignes Item I give and bequeath unto
such childe or Children as my wife nowe goeth with or is with childe of the
2%
18
Some of three hundred poundes of lawfull Englishe money to tº
deliuered into the Chamber of the Cittie .*. * 5..." º
Child and children within one yeare nexte after my decease to be imployed
for the use and benefitt of such childe and children untill they shall accom-
plishe the age of Twentie and one yeares Item I give and bequeath unto
such childe and children as my wife goeth with or is with childé of allºn.
my moitie or halfe parte of the lease of the said Tenemies, with thappur-
tenfices att or neere Tower hill in the said pishe of All Saintes Barkinge
holden of and from the Hospitall of Saint Katherines and the moitie of my
rentes and reveróons thereof, And all my estate tearmes of yeares and de-
maund therein charged with the said Annuity of Thirtie poundes p Anfi by
me herein before given unto my said wife, Prouided allwales and my
mynde and will is that if my said wife shall not be with childe att the time
of my decease, or that such childe and children shall happen to miscarry or
dye or departe this life before he she or theie shall accomplishe the age or
ages of twentie and one yeares then in such case or cases and not otherwise
I doe.giue and bequeath unto the severall persons hereunder named the
seu'all legacies and somes of money hereunder menčoned, That is to saie,
To my said lovinge wife one hundred poundes. to my said brother John
Harvard one hundred poundes. To and amongst the children of my unckle
Rogers forty poundes. To my godsonn William Harvard fiefteene poundes,
To the eldest sonne of my Cossen Thomas Willmore fower poundés to my
Cossen Robert Harvard five poundes to John Brockett the sonne of Joseph
Brockett ffortie shillinges, And then alsoe and in such case, I doe give and
bequeath unto my said brother John Harvard my said moitie or half parte
of the lease of the said Tenementes with the appu'tenfices att or neere
Towerhill aforesaid and the rentes and the Reveróons thereof, And all my
estate tearme of yeares and demaunde therein charged with the said
Annuity of Thirtie pounds p ann by me given to my said wife, Item
I doe alsoe by this my will give and bequeath unto my said brother John
Harvard the sume of one hundred poundes lawfull English mony, and my
standinge bowle of silver guilt and my Chest with twoe lockes before ex-
cepted, Together with my best whole suite of appell and my best cloake,
And all things belonginge thereunto, Item I give and bequeath unto Mr
Nichollas Morton Minister and Preacher in the pishe of Saint Saviors in
Southwarke the some of fforty shillinges in recompence of a Sermon which
I desire he should preach at my funerall, for the better Comforte edifyinge
and instrucóon of such my freinds and neighboures and other people as
there shalbe assembled, Item I giue and bequeath unto James Archer Min-
ister twentie shillinges, Item I giue and bequeath unto M' Osney Minister
the some of twenty shillinges, Item I give and bequeath unto M' Clarke
Minister the some of twenty shillinges, Item I give and bequeath unto my
said father in lawe M. Nicholas Kinge the some of three poundes to make
him a ringe, Item I giue and bequeath unto my Cossen William Harvard the
some of Tenne poundes, Item I give and bequeath unto my said Cossen
Robert Harvard the some of six poundes, Item I give unto the said Joseph
Brockett my seale Ringe of gould, I will that there shalbe distributed
by my executors on the day of my buriall the some of ffortie shillinges, that
is to saie to and amongst the poore people of Saint Saviours in Southwarke
the some of twenty shillings and to And amongst the poore people of the
pishe of Saint Olave in Southwarke the like some of twenty shillings Att
the discredon of my Executors where moste neede shall appeare.
Item I give and bequeath unto my Mother in lawe Margarett King fortie
19
shillinges and unto her twoe daughters Margaret and Hanah the like some
of ffortie shillinges a peece to make them Ringes. The rest residue and Re-
mainder of all and singuler my goodes chattelles and worldly substance what-
soever not herein before given or bequeathed, I give and bequeath in forme
followinge, that is to saie, Twoefull third pts thereof unto such childe and
children as my said wife nowe goeth withall or is with childe of And thother
twoe third ptes thereof I fully and wholly give unto my said lovinge wife
Elizabeth, and my said lovinge brother John Harvard equally betweene
them to be devided pte and poróon alike. And in case my said wife shall
not be with childe att the time of my decease or that such child and child-
ren shall dye before theie shall accomplishe theire age or ages of twentie
and one yeares Then in such case I give and bequeath the residue and re-
mainder of my estate my debtes funerall expences, and my legacies beinge
paied and pformed unto my said lovinge wife and my said brother equally
betweene them to be devided pte and poróon alike, And my will and mean-
iñge is that the legacies by me in and by this my last will given and be-
queathed unto my said wife and such childe and children as she nowe goeth
with or is with childe of is and are in full Recompence and satisfaction of
such parte of my estate shee they or anie of them shall or may claime or chal-
lenge by the custome of the Citty of London, And to the end they shall
make noe clayme or challege thereby, And if they shall make such Claime
or challenge by the said custome Then I will that the said legacies by me
to them given shall cease and bee voide and not be paied, And I doe or-
daine and make my said welbeloved brother John Harvard And the said
Nichollas Morton preacher executors of this my said last will and Testa-
ment in trust for the due pformance of this my said laste will and the pay-
ment of the legacies herein included and given and especially and before
all of such debtes as in right and conscience I shall owe to anie pson or
psons att the time of my decease as my trust is in them, And in recom-
pence of theire paines therein to be taken, I give and bequeath unto either
of them the sume of five poundes lawfull englishe mony apeece, And I doe
nominate and appoint my said lovinge father in lawe M* Nicholas Kinge
and my lovinge Cossen Thomas Harvard and my lovinge freind M. John
Spencer Merchante to be overseers of this my will desiring them to se the
same pformed accordinge to my true meaning and to be aidinge and assist-
inge to my said Executors with theire best advice And for theire paines
therein to be taken I give and bequeath unto every one of them three
poundes apeece of like mony, And I doe hereby revoke and disalowe of
all former willes and bequestes by me in any wise heretofore made And this
to stand and continewe for and as my last will and testament, In witnes
whereof to this my said last will and testament conteyninge with this sheete,
Nyne sheetes of paper, I the said Thomas Harvard have sett my hand and
seale the daie and yeare first aboue written Thomas Harvard Sealed and
published by the said Thomas Harvard for and as his last will and testa-
ment the daie and yeare abovesaid in the psence of me Richard Greene
Scr: Richard Barlowe.
PROBATUM fuit Testamentum suprascriptum apud London coram magro
Willmo Sames legum deGre Surrogato venerabilis viri domini Henrici
Marten militis legum etiam deoris Curie Prerogatiue Cant magri Custodis
sive Comissarii ltime constitut, Quinto die mensis Maij Anno domini mil-
limo Sexcentesimo tricesimo septimo Jurament Nicholai Morton Cleric
executoru in humöi testament nominat; cui comissa fuit administracio
20
omni et singulord bonorii iurifi et creditorii dict def de bene et fidfe ad”
ead" ad sc" dei evang: iurat, Reservata fitate similem comissioem faciefid
Johanni Harvard alteri execut etiam in dicto testament nominat cum vene-
rit eam petitur. 69, Goare.
[At last, thanks to the mother that bore him, and who by her careful mention of
him in her will as “my eldest son, John Harvard, clarke,” has again, as it were,
brought him to light, we are enabled to lift the veil that for nearly two hundred
and fifty years has hidden our modest and obscure, but generous benefactor, the
godfather of America’s oldest University, the patron Saint of New England's scho-
lars; to learn his parentage and birthplace, and to form some idea of his youthful
surroundings. The will of his brother Thomas, to be sure (discovered by me on
Washington’s birth-day, 1884), furnished the first important evidence in regard to
him. It will be noticed in that will, made 15 July, 1636, that he appoints his brother,
John Harvard, and the Rey. Nicholas Morton, parson of St. Saviour's, joint execu-
tors; that this will was presented for probate 5 May, 1637, by Mr. Morton alone, and
power granted only to him, a similar power being reserved for John Harvard, the
other executor, when he should come to seek it. This seemed to show plainly enough
the absence of John Harvard, the brother of Thomas, on that fifth of May, 1637.
Well, that was the year of the first appearance of our John Harvard on the soil of
New England, as shown by the records of Charlestown ; so that probably on that
very day in May he was on his way across the Atlantic. The inference then was a rea-
sonable one that the John Harvard named in the will of Thomas Harvard of South-
wark and the wise benefactor after whom our ancient University was named were
one and the same person. But it needed just the mention of him in his mother’s
will as “clarke,” taken in connection with this fact of his absence at the proving
of his brother’s will, to put the matter beyond question. Here too it seems as if en-
vious chance had sought to hide him, for in the Calendar of 1637 the name of the tes-
tator, which in the record is plainly enough “Harvard,” was entered “ Haward,”
a name which might be passed over by any one hunting for the name of Harvard.
It was only by gleaning that I came upon it.
Again—the Register Books of St. Saviour’s, Southwark, the parish in which our
benefactor first saw the light, seem to have lent themselves to increase the mystery
that has enveloped the English surroundings of John Harvard, as Will appear from
the following list of baptisms:*
1601 May 31 Marye Harverde d. of Robert, a Butcher.
1602 July 15 Robert Harverde s. of Robert, a Butcher.
1606 September 30 Robert Harvye s. of Robert, a Butcher.
1607 November 29 JoBN HARVYE s. OF RobT. a BUTCHER.
1609 December 3 Thomas Harwye s. of Robt, a Butcher.
1610 November 1 William Harverd s. of Robert, a Butcher.
1612 September 27 Katherin Harverd d. of Robert, a Butcher.
1613 December 12 Ann Harverd d. of Robt. a Butcher.
1615 April 2 Peter Harvye d. of Robt. a. Butcher.
Why, if his name was Harvard, should we accept the baptism of John Harvye as
the baptism of our John Harvard 2 Here again the mother comes to our assistance.
It can readily be seen that Katherine Yearwood must have been the widow of Rob-
ert Harvard and mother of the John, Thomas and Peter named in his will. It may
not appear so evident that John Elletson, whose will I have given in its order of
time, had married the widow Harvard before she became the wife of Richard Year-
wood. The will of John Elletson makes no mention of any of the Harvard family ;
yet no one can read attentively that will and the will of Mrs. Katherine Yearwood
in connection with each other, without being forced to the conclusion that Kathe-
rine Yearwood must have been the widow of John Elletson and the executrix of his
will, and, as such, the successor of his trust in regard to the children of Hugh
Horsall, or Harsall, deceased. So convinced was I of this that almost the first ob-
ject of my quest in the register of St. Saviour's, was the record of the marriage of
John Elletson with the widow Harvard. And I Soon found it entered thus:
1625 Januarie 19 John Ellison & Katherine Harvie.
* The first two children in the list, vizt. Mary (bapt. 1601) and Robert (bapt. 1602) were
probably the children of Mr. Harvard by his first wife, Barbara Descyn, whom he married
26 June, 1600.
21
(
Here we find mother and son both appearing under another and the same name,
viz., Harvie or Harvye. I found too in the will of Thomas Cox, citizen and vint-
ner of London, made 12 September and ſº." 21 September, 1613 (79 Capell) be-
quests made to sundry members of this family (John Harvard’s uncles?) as follows :
“I give Mrs Herverdals Harvey wife of Mr Thomas Harverd als. Harvey of Sº Kath-
erines Butcher six payre of best sheets,” &c.—“Idoe give and bequeath unto Rich-
ard Harverd als Harvey of St Saviour's parish aforesaid butcher, my now tenant,
the sum of ten pounds,” &c. A Robert Harvy als, Harverde the elder of Rooke-
by (Rugby) was mentioned by Thomas Atkins of Dunchurch, Warwickshire, in
his will, 41st Elizabeth. (48, Kidd.)
The burial of the father of John Harvard is thus entered :
1625 August 24 Mr Robert Harvey, a man, in the church.
The youngest son, Peter, mentioned in his father's will (of 28 July, 1625) but
not in the widow's, was buried four days before the father, also in the church,
where also Richard Yearwood (a vestryman) was buried 18 October, 1632, and Kath-
erine Yearwood 9 July, 1635. John Harvard's elder brother Robert was buried
the very day before his father made his will. Evidently the family were suffering
from the visitation of the plague in the summer of 1625. I saw other burials entered,
but did not have time to note them. All, however, I think, were buried in the church.
As I passed through this venerable edifice, once the place of worship of our modest
benefactor, I noticed that the great window in the South Transept was of plain
glass, as if Providence had designed that some day the sons of Harvard should place
there a worthy memorial of one who is so well entitled to their veneration.—HENRY
F. WATERs.]
WILLIAM WARD of the parish of St Savior in Southwarke in the County
of Surrey citizen and goldsmith of London 2 April 1624.
My body to be buried within the parish church of Sº Saviors in South-
wark aforesaid. My estate shall be divided into three equal parts or por-
tions according to the laudable custom of the city of London. One of which
said third parts of my estate I do give, devise and bequeath unto my now
wellbeloved wife Roase Ward. One other third part of my said estate I
do give and bequeath unto my loving son Edward Ward and unto my well
beloved daughter Roase Warde equally between them to be divided part
and part alike (both minors). The other third part I reserve towards the
payment of debts, funeral expenses and legacies &c.
To loving aunt Margaret Wood widow forty shillings per annum, in
quarterly payments. To the poor of the parish of Sº Savior's four pounds
sterling. To M. James Archar our minister twenty shillings sterling. To
the churchwardens and vestry men of the parish of Sº Saviors aforesaid of
which Society I am now a member the sum of six pounds sterling to make
a dinner for them. To my good friend Mº Richard Yarwood one silver
bowl of the weight of twelve ounces. Item I do give and bequeath unto
my brother M. Robert Harverd and to my friend George Garrett and my
cousin William Shawarden to every of them a ring of gold to the value of
twenty shillings or twenty shillings apiece in money. The remainder shall
be divided into three equal parts or portions, two of which I do give and
bequeath unto my said son Edward Ward to be likewise paid unto him at
his age of one and twenty years, and the other third part of the said re-
mainder Ido give and bequeath unto my said daughter Roase Ward to be paid
unto her on the day of her marriage or at her age of one and twenty years,
which shall first happen. If both my said children shall happen to die be-
fore the legacies by this my last will bequeathed unto them and either of
them shall grow due then I do will and bequeath all and every the legacies,
herein by me before bequeathed unto my said children, unto my said loving
wife Roase Ward and unto my cousin Elizabeth now wife of the forenamed
William Shawarden equally between them to be divided &c. And I do
22
make and ordain my said son Edward Warde and my said good friend Mr
Richard Woodward executors of this my last will. And I do nominate and
appoint the foresaid Robert Harvard, George Garrett and William Shawar-
den to be overseers of this my will.
This will containing four sheets of paper was read signed sealed and de-
livered in the presence of us Josua Whitfeild and me William Page Scri.
Memorandum that this word Woodward was mistaken in the fifteenth line of
this sheet and that according to the true intent of the said William Ward
the same was meant and should have been written Yearwood who is the
man mentioned to be nominated in the eighth line of the – sheet to be Rich-
ard Yearwood and mistaken by me the writer, witness William Page Scri.
Administration was granted to Roase Ward, the widow, during the mi-
nority of Edward Warde the son, 5 October 1624. 80, Byrde.
[The foregoing abstract was found in the course of my gleanings nearly a year ago,
and preserved on account of its mention of Robert Harvard and Richard Yearwood.
It now turns out to be very important as evidence that Robert Harvard's wife Kath-
erine, the mother of our John Harvard, was a Rogers; for in my reading of the
registers of St. Saviour's I came upon the following marriage :
1621 Oct 17 William Warde and Rose Rogers.
This I made note of at the time, not remembering this long preserved abstract of
William Ward’s will, but solely because I recalled that Katherine Yarwood had
mentioned a sister Rose Reason, and as I fully believed the testatrix would turn out
to be a Rogers, the name Rose Rogers struck me as worth noting. Rose Ward
and Rose Reason were probably one and the same person.
Another most important evidence of John Harvard’s identity remains to be shown.
Knowing that he must have been the owner of landed property, and believing that
before leaving for America (in the Spring of 1637) he would be selling some of this
property, I surmised that some record of such sale would appear in some of the docu-
ments preserved in the Public Record Office, although I had been informed that the
Record Office had been searched for trace of John Harvard, and that it was hardly
worth the while for me to make a search there. However, I laid the matter before my
young friend Francis Grigson, Esq. (a son of the late Rev. William Grigson, our
former corresponding member), and sought his advice. He said that my surmise
was quite reasonable, and that the best field of investigation would be the Feet of
Fines. No one could be kinder than he in showing me how to look for the evidence
I wanted. After almost a whole day’s labor, in which I found many suggestive
items bearing on American names, I, at last, found an entry which led me to send
for the Feet of Fines of the Hillary Term, 12th Charles I., County Surrey. The
following is a copy of the first (and important) part of this document:
Hêc est finalis concordia fea) in cur) Dni Regis apud Westm) in Octavis Purifica-
c)ois Be) Marie Anno regnorum caroli Dei gra). Angli Scotie franc et Hibnie Regis
fidei Defens etc a conqu) duodecimo coram Johe) finch Rico) Hutton Georgio Ver-
non et francisco Crawley justic) et aliis dni Regis fidelibus tune ibi) p"sentibus Int’
Johe)m Man et Johannam uxo)m eius quer) et Johe)m Harvard et Annam uxom
eius deforc) de uno mesuagio et tribus Cotagijs cum p’tin) in Parochia Sci) Olavi in
Southwarke.
The next day, after a long search, I was able to examine the Concord of Fines,
relating to the same transaction, where I hoped to find the signatures of the parties
to this agreement, as was the custom. This case, to my great regret, proved an
exception to the rule, and I was unable therefore to get a tracing of John Harvard's
autograph. However, I was enabled to fix the precise date of the transfer, yizt. 16
February, 12th Charles I. The consideration given by John and Johan Man was
one hundred and twenty pounds Sterling.
Here we find John Harvard appearing in February, 1636–7, as a grantor of real
estate in St. Olave (where his brother Thomas was living) and with wife Ann, Surely
most important evidence that he was the John Harvard who six months afterwards
was in New England with a wife Ann; and the above date of transfer and the date
of probate of his brother Thomas Harvard's will undoubtedly furnish the limits of
the period of time within which John Harvard left Old England to take up his
23
abode in our New England. He must have set sail some time between 16 February
and 5 May, 1637. The four tenements thus conveyed were, without doubt, the
Same as those described in the following extract;
John Man of the parish of St. Olave in Southwarke in the County of Surrey, Sea
captain, 6 August 1660, proved 25 November 1661.
“I giue and bequeath all those my foure houses or Tenements with thappurte-
nances thereunto belonging Scituate in Bermondsey streete in the parish of Sº Olave
in Southwarke and County aforesaid which I purchased of one — Harbert, being
in the occupation and possession of one Greenball or his assignes at yearely
Rent of eight and twenty pounds unto Mary my Loveing wife dureing her naturall
life and from and after her decease to the heires of our bodyes lawfully to bee be-
gotten forever and ſor want of such issue to the heires of the said Mary my Wife
Law fully to bee begotten of her body forever.”—H. F. W.] 180, May.
IN DEI NoMINE AMEN. The Sixt Daye of the moneth of ffebruary
Anno diſi 1637 I John Sadler of Ringmer in the County of Sussex Clerke
Compos mentis et Corpore sanus thankes be to God therefore doe make &
ordayne this my last will & Testament viz' first I will & bequeath my
poore sinfull Soule to God the father Beseechinge him of his mercy to save
it for his sonne Jesus Christ his satisfacóons sake And my Body I will to
be buryed where & by whome & in what manner God hath appointed.
for my worldly goodes I will & bequeath them in maner followinge first I
will and bequeath to my daughter Anne the wife of John Haruard Clarke
Twentie shillinges to be payd her after my decease when shee shall demand
it. Item I will and bequeath to my sonne John Sadler Twenty Shillinges
to be payd him within a moneth after my death if it be demaunded Alsoe I
will and bequeath to the poore of the parish of Worsfield in the County of
Salop Twenty shillinges to be distributed amongst them after my death
And I will to the poore of y" pish of Ringmer abouenamed the summe of
Tenn shillinges to be distributed amongst them after my departure And
for the rest of my worldly goodes whatsoever legally bequeatheable I will
and bequeath them to Mary my deare and loveinge wife not doubtinge of
her good and godly diposeiuge of them whome I make the sole and onely
Executrix of this my will In wittnes whereof I say In wittnes whereof I
haue hereunto sett my hand & seale JOHN SADLER.
Witnesses hereunto John Shepherd John Legener.
PROBATUM fuit Testamentum suprascriptum apud London coram ven)-
abili yiro dfio Henrico Marten milite legü déore Curiae Prerogative
Cant Magro Custode sive Comissario ltime Constituto vicesimo priño die
mensis Octobris Anno di Millfüo sexcentmo quadragesimo Juramento
Marie Sadler Relictæ dicti defuncti et Executricis in himoi Testamento
noiât Cui Comissa fuit Administraćo omniu et singlorum bonorum iurium
et Creditorum eiusdem defuncti de bene et fideliter Administrando eadem
Ad sancta dei Evangelia coram Magro Esdra Coxall Clićo vigore Comissi-
onis in ea parte ais emanat Jurat. Coventry, 128.
[John Sadler, M. A., whose will is given above, was instituted Vicar of Patcham
in the county of Sussex, 3 November, 1608, as I have been informed by E. H. W.
Dunkin, Esq., who has for years been making careful researches among the records
relating to this county. In Patcham Mr. Sadler's children were baptized as foll
lows :
Ann d. of Jn. Sadler, Mary, August 24, 1614,
John S. of Do. . . . . . . . . . . . . April 6, 1617.
Afterwards he was settled at Ringmer, where I find he was inducted 12 October,
24
1626, and was buried there 3 October, 1640.*. His son John was a graduate of
Emanuel College, Cambridge, M.A. 1638, Fellow of the College, Master in Chan-
cery, Town Clarke of London and Master of Magdalen College, Cambridge, we
learn from Cole's Collection (Add. MS. 5851, British Museum). From ...
Fast. Eccl. Angl, we get this confirmed and with further information, under the
title St. Mary Magdalene Coll. Masters. John Sadler, M.A., was admitted 1650,
and deprived at the restoration.
In the same M.S. Cole gives the admission of John Harvard, P. 1631, and the
same year Tho. Allen P. June 22, Suff. Mr. Harvard's graduation is shown to be
1635. His pastor, Nicholas Morton, M.A. 1619, born in Leicestershire, was Dixy
Fellow and afterwards chaplain of St. Mary Overies, London (i. e. St. Savior’s,
Southwark).
In the Sussex Archaeological Society’s Collection (vol. 11, p. 225) is given “A
Rolle of the several Armors and furniture with theire names of the clergie within
the Arch Deaconry of Lewes and Deanery of South Malling with the Deanry of
Battell in the County of Sussex. Rated and appoynted the 11th day of March A9
D’ni, 1612 by the Right Reverend father in God Samuell (Harsnet) Lo. Bishoppe of
Chichester.” I extract the following item : “Petcham, Mr Jo. Sadler, vicar —
a musquet furnished.”
As the widow Ann Harvard became the wife of the Rev. Thomas Allen, the fol-
lowing abstract may be worth noting here :
Mense Octobris 1673, Vicesimo Septimo die. Emt. Como. Thomae Allen filio nrāli
et ltiſſio Thomae Allen nup Civtis Norwicen vid def hentis etc. Ad Admistrand
bona Jura et cred d’ci def de bene etc jurat. Admon. Act Book 1673, fol. 128.
I cannot refrain from expressing the gratitude I feel towards my brother
antiquaries in England for the ºãy sympathy and generous assistance I have
received from them ; and I desire to name especially Messrs. E. H. W. Dunkin,
Francis Grigson, David Jones, Robert Garraway Rice and J. C. C. Smith, who
have shown kindness without stint in this matter, as in all other matters connected
with my genealogical work in England.—HENRY F. WATERs.]
* The Burrell Collection (Add. MSS. 5697, &c. British Museum), from which I took the
above item, gives the date 1642, a manifest error as shown by date of probate of will ; be-
sides, Burrell convicts himself in the next line, showing the date of induction of Mr. Sad-
ler's successor, 1640. My friend Mr. Dunkin gives me the entry from the Ringmer Reg-
ister as follows: “1640 Oct. 3 buryed Mr John Sadler minister of Ringmer.” H. F. W.
D R. C. O D M A N ? S S P E E CH
IN THE
BOARD OF OVERSEERS OF HARVARD COLLEGE,
FEB. 3, 1831.
s-
-
*
S P E E C H .
[At an adjourned meeting of the Board of Overseers of Harvard
College—held in the Senate Chamber in Boston Feb. 3, 1831.
The Committee consisting of Dr. Spoon ER, Rev. Dr. CodMAN,
and Rev. Mr. WALKER, to whom were committed the Statutes es-
tablishing a Theological Faculty in the University, reported, that a
majority of the Committee were in favor of recommending a con-
currence with the proceedings of the Corporation. Whereupon
Dr. CodMAN rose and moved that the subject be re-committed and
postponed to the next stated meeting of the Board.—The motion
being seconded, Dr. CodMAN thus addressed the Board.]
JMay it please your Excellency.
IT is with great reluctance that I rise to offer a few remarks on
the Report of the Committee now before this Honorable and
Reverend Board, and in favor of its recommittance for further
consideration. -
With my highly respected Colleagues on that Committee I had
the unhappiness to differ in opinion. They were in favour, as appears
by their Report, of recommending to this Board a concurrence
with the proceedings of the Corporation in the establishment of a
Theological faculty in this University. Although on many sub-
jects that have come before this Board, as in the establishment of
a Professor of German literature, I have cheerfully given my
voice in favour of concurrence with that truly enlightened and dig-
nified body, and although I have great confidence in their wisdom
and ability, and sound judgment, yet on this occasion I was con-
strained, I trust from honest and conscientious motives, to differ
from them as to the expediency of establishing a Theological De-
partment in the University, and I feel it my duty to state to this
Board the reasons of my dissent from the Report of the Com-
mittee.
In the remarks which I beg leave to offer on this subject I
shall confine myself to the question of expediency. Whether,-in
the existing state of public opinion on religious subjects in this
4
Commonwealth, it is expedient for this University to descend from
that high and elevated station which it ought to hold as the Uni-
versity of the State, and, by the establishment of a Theological
Department, lend its mighty influence to the support of any one
sect of professing Christians. With regard to the denomination
of which the proposed Theological Faculty is well known to con-
sist, I am far from wishing to make any invidious or unkind remarks.
Many of my intimate friends and relatives belong to that denomi-
ation. The doctrinal views of the three Professors are well known
to be Unitarian. Should this be disputed, which I presume will
not be, I have only to appeal to their publications. The senior
Professor, for whose private character I have reason to entertain
the highest esteem, is one of the champions of the Unitarian faith,
the avowed correspondent of Rammohun Roy, the Unitarian con-
vert and missionary in India. His son, the amiable and accom-
plished Professor of Pulpit Eloquence and the Pastoral Care,
we were told in the public prints, was the accredited representa-
tive of the American Unitarian Association at a public meeting of
the Unitarian denomination in England, and the learned and tal-
ented Professor elect of Biblical literature, I presume no one
will deny, belongs to the same class of professing Christians.
Although I do not harmonize with these gentlemen in religious
opinion, I entertain towards them, individually, sentiments of re-
spectful consideration and personal regard. They have the same
right to their peculiarities that I have to mine, and I should be the
last person in the world to wish to deprive them of that right, or
to lessen their facilities of propagating what they honestly believe
to be the doctrines of Christianity.
Sir, I have always been the advocate of religious freedom in
its widest extent. I wish every man to enjoy the privilege of wor-
shipping God according to the dictates of his own conscience. I
rejoice that we live in this land of freedom, where no religious
denomination is established by law. There is nothing that I
deprecate more than any exclusive advantages granted by the
State to any religious sect.
It is well known that in this Commonwealth there is a great di-
versity of opinion on religious subjects. To mention no others,
there are Orthodox and Unitarian Congregationalists, Baptists,
Episcopalians and Methodists, all highly respectable in numbers
5
and influence—and all directly or indirectly interested in this Uni-
versity.
To this ancient and venerable seat of learning, patronized by
themselves through their representatives in the legislature, it is
natural that they should wish to send their sons to receive the ad-
vantages of a liberal education. And, Sir, could they be assured
that the University was only a literary Institution, and had no nec-
essary connection with any religious sect, they would cheerfully
avail themselves of the privilege of placing their children under
its fostering care, and not be under the necessity, as they repeat-
edly have been, and now are, of sending them elsewhere.
It may be said that every College must have its distinctive reli-
gious character, and, that as the government of Harvard Univer-
sity, and many of its friends and patrons are of the Unitarian de-
nomination, it is right and proper that they should have a Theo-
logical department of that character. I would allow the force of
this argument, may it please your Excellency, if Harvard College
had been founded by Unitarians, and if it were not so intimately
and so inseparably connected with the State. But, Sir, it is well
known that Harvard College was not founded by Unitarians, but
by Orthodox Congregationalists. The Professorship of Divinity
was not founded by Unitarians, but by a Calvinistic Baptist, of
precious memory, who, in the very statutes which you are advised
in the Report on your table, to adopt, expressly requires that his
Professor should be “ of sound and Orthodox principles.” On
this subject I will not enlarge. It is attended with too many painful
a SSOCl at IOI)S.
But, Sir, I would remark on the peculiar relation which this
University bears to this Commonwealth. It is the child of the
State. The State has always been its nursing mother. It has
contributed largely to its funds. It has ever taken a deep and
lively interest in its prosperity. The Executive and higher bran-
ches of its legislature have, from the beginning, been its constitu-
ed guardians.
Sustaining such a relation to the Commonwealth, ought it to as-
sume a controversial aspect on the subject of religion ? Ought
it to be devoted to the interests of any religious sect or denom-
imation, however excellent that sect and denomination may be
Sir, in the present state of religious opinion, I have no wish that
this Seminary of the State should be devoted to the propagation of
6
the sentiments of the pious Hollis, and of our pilgrim fathers. I
venerate these sentiments, and I honestly believe them to be the
truth of God; but I know that many, equally honest and sincere,
differ from me on this subject. Let me have a Theological School
to which I may send my children with a good conscience, after
they have received their classical education at the University, and
let those who differ from me, also have a Theological School, but
let that school be distinct from the University, and let us all have
one common Alma Mater, who shall acknowledge us as her chil-
dren, without any regard to the religious denomination to which
we belong. -
It may be said, that a University is not complete without a The-
ological Department. Divinity is one of the three learned profes-
sions, and ought to be as distinctly and thoroughly taught as Law
and Medicine. In answer to this, I would remark, that, if a sys-
tem of divinity could be agreed upon, in which all the religious
denominations in the Commonwealth could unite, the argument
might have weight. But this, I am sure, all would agree, would
be a Utopian scheme. No, Sir, in the present state of religious
opinion, it is impossible for any Theological Faculty, however ex-
cellent, to give universal satisfaction to the people of this Common-
wealth. There is but one way, may it please your Excellency,
in which the views and feelings of the whole people can be met,
and that is, by not having any Theological School connected with
the University.
I have no objection that the Unitarians should have a Theologi-
cal School,—but let it not be connected with Harvard College.
The Orthodox Congregationalists have one at Andover; the Bap-
tists have one at Newton ; and the Methodists, I believe, have one
at Wilbraham ;-and let the Unitarians have theirs in any of the
pleasant towns or villages in Massachusetts. And let the young
men of the Commonwealth, destined for the sacred office, after they
shall have completed their classical education at Cambridge, which
no college in the Union can better supply, let them, then, make their
selection of a Theological School. Let one go to Andover, and an-
other to Newton, and another to Wilbraham, and another to such
place as the Unitarians may think proper to designate for the loca-
tion of their school.
But, Sir, it may be said, that the Theological School is already es-
tablished at Cambridge, that Professors have already been appoint-
ed, and Students are under a course of Theological instruction.
7
I know it, may it please your Excellency, and I deeply regret it.
In the year 1815, I believe, certain funds were raised by sub-
Scription for the promotion of Theological Education in the
University, and received and held by the Corporation—and in 1819,
(not during the session of the Legislature, but in the month of July,)
a Constitution was adopted for the Theological Department—and
approved at a regular meeting of the Board of Overseers.
This Constitution recognizes the existence of the Society for
promoting Theological Education at Cambridge—which was rep-
resented by a certain number of Trustees.
It may be asked—why were not the same objections made to the
adoption of this Constitution as are now made to the adoption of
the statutes under consideration ? Sir, I can only answer for my-
self. I had not then the honor of being on the Committee to whom
that constitution was referred. Had I been, I should have felt it
my imperious duty to have attended particularly to the subject,
and to have protested against it. It is true I was then a member
of this honorable and reverend Board, and I ought, perhaps, to
have been more watchful than I have been, against what I con-
ceive to be an encroachment on the religious liberties of the Com-
monwealth. But not being called to the special service of a com-
mittee, I must confess, the constitution of the Theological Depart-
ment which passed this Board in 1819, escaped my notice.
But, Sir, if we have misjudged in times past in connecting a
Theological department in any shape with this University, shall
we persist in our error Is it too late to retrace our steps ? Is it
not better to acknowledge that we have erred, than to forfeit the
confidence of many religious denominations in the State
But, Sir, there is one important difference between the constitu-
tion of 1819, and the proposed Theological statutes. The respon-
sibility of the Theological department was according to that instru-
ment, shared at least by a Theological Society independent of the
University. By the proposed statutes it is wholly assumed by the
University. The Theological department is made, to all intents and
purposes, a constituent part of the University, and whatever may be
the character of its theology, it must now be viewed, in the eyes of
the world, as the Theology of the University of this Common-
wealth.
Sir, it has been said, that the course recommended by your
Committee, is the least of two evils. Several truly liberal and
8
high minded Members of this Board, have, without hesitancy, ex-
pressed their regret, that a Theological School should, in any shape,
have been located at Cambridge. And this opinion, I have no
doubt, is held by many other judicious thinking men of liberal sen-
timents, who love this University, and fear the consequences that
may result to its prosperity, from the measure under consideration.
But what can now be done The Theological School has
been established at Cambridge. It has collected funds from those
who were friendly to the object, to the amount, I am told, of about
$50.000; with part of which they have erected a building for the
accommodation of the School. Is has already, a partial connection
with the University, the whole funds and the appointment of the
Professors, being under the direction and control of the Corpora-
tion.
[legal opinions, it is understood, have decided that the Theolo-
logical School cannot now be completely severed from the Uni-
versity, without incurring a forfeiture of these funds. Under ex-
isting circumstances, what can be done? Sir, it is not my province
to extricate gentlemen from a difficulty into which they have
thrown themselves. But I am willing, as far as possible, to en-
deavor to assist them. I would say, then, let the forfeiture take
place.—What is money to principle What is $50.000, contri-
buted, chiefly, by one religious sect, to the general prosperity of
the University, which is the common property of all denominations
in the Commonwealth f And let Unitarians raise new funds and
establish a Theological School in this City, or in Salem, or in any
other town in the State. But, if gentlemen are not willing
to make such a sacrifice, if they still wish to retain their money
and their buildings, let them do it—and let them be under the di-
rection and control of a Unitarian Theological Society, but let the
President of Harvard College and the Boards of Corporation and
Overseers stand aloof from the connection.
But it has been said that the proposed plan of a Theological
Department in the University was specially designed to effect a
separation between the College and the Theological School, and
it was thought that such an arrangement would better meet the
wishes of the Orthodox part of the community, than the existing
connection between them. But what, may it please your Excel-
lency, is the difference between the University and the College :
The difference of a whole and its parts. Are the funds, given by the
9
Commonwealth, given exclusively to the academic part of the in-
stitution : Is the College or academic part of the Institution, only,
under the care of the Corporation and Board of Overseers? If so,
what occasion have we for acting on the subject now before us?
No, Sir, the University is a whole—and, by the adoption of the
statutes now under consideration, it is proposed to make the The-
ological Department, as such, a constituent part of the University.
What pledge have we that no part of the funds, munificently
given, or which may hereafter be given to the University by the
Commonwealth, shall never be appropriated to the Theological
Department? True, the majority of the Committee, in their Re-
port, have expressed their opinion, that this will not be the case,
but it is only their opinion. Is there any such pledge contained
in the statutes now before us? Is it expressly stated in these
statutes, that the Theological department shall in future look only
to the Unitarian denomination for support? No Sir—the Unita-
rian Theological School at Cambridge, which has hitherto directed
in connection with the Corporation, the concerns of the School are
by the proposed arrangement, to give up their powers to the The-
ological Faculty. They are about to transfer their individual re-
sponsibilities to the University of the State, and to place the in-
fant, which they have brought into existence, and carefully nourish-
ed, under the special care of the University of the Commonwealth.
And, Sir, is the University of the Commonwealth prepared to
take this child off their hands, and to adopt it as their own. Is it
prepared to give the whole weight of the influence of the University,
to the support of any particular religious denomination? Is it
prepared to violate the Constitution of the State, which expressly
provides that no subordination of any one sect or denomination of
Christians to another shall be established by law.
Suffer me to ask, who are to constitute the Theological
Faculty in the University ? I would refer to the second article in
the Statutes. The President of the University, and the three
Professors above mentioned, with such other Professors or officers,
as the Corporation may from time to time designate, shall consti-
tute the Theological Faculty in the University. The President of
the University—and who is the President of the University ?
The President of Harvard College.
O
aº
10
By these statutes he is to be officially and publicly constituted
the Head—I will not say of the Church—the Defender of the
Faith—but I must say, the Head of a Unitarian Theological School.
Sir, no man in the community has a higher respect for the
gentleman who now sustains that elevated and dignified station,
than myself. I admire the energy of his character, and his spirit
of enterprize. I had hoped much for the prosperity of the Uni-
versity from his elevation to the presidential chair. I have no
hesitation in saying, that of all the candidates for that responsible
trust that I had heard named, I gave him the decided preference;
and if I was not active in promoting his election, I certainly did
nothing to impede it. One reason of my preference was, that he
was a LAYMAN. I thought, sir, that in the existing state of public
opinion on religious subjects in this Commonwealth, it was highly
desirable that that important office should be filled by a layman, and
not by a clergyman of any sect. Although I well knew that the
religious opinions of the candidate for the presidency differed from
my own, I had confidence in the enlargement and liberality of his
mind—in his high sense of moral and religious obligation,-and in
the impartial course he would pursue towards other denominations
of Christians. This confidence was strengthened by one of the
first acts of his administration—the permission for the undergrad-
uates to attend such places of worship as they might conscientiously.
prefer; a liberty, which had never been granted before except to
members of the Episcopal Church.
But, Sir, I never expected to see the day when the DISTINGUISH-
Ed LAYMAN who now presides over Harvard College,should become
the Head of a Theological Faculty of any one religious sect.—Tell
it not Gath, publish it not in the streets of Askelon —What will
the enemies of our holy religion now say of a union between
Church and State, when they learn, that one of the most distin-
guished civilians, of which our country can boast, whose eloquence
has been heard on the floor of Congress, who has sustained a high
reputation in his native state at the bar and on the bench, and who
has directed, with unparalleled energy, the complicated affairs of
a highly respectable municipality—what will they say, when they
learn, that, by a deliberate act of the constituted guardians of the
University, he has been placed at the head of a Theological Fac-
ulty
11
Sir, I cannot but think, though I am not in cabinet secrets,
that the honorable gentleman feels the embarrassment of the situa-
tion, and reluctantly consents to come before the public as the
head of a religious party, and that he would feel greatly relieved
if this Honorable and Reverend Board would interpose their salu-
tary veto, and negative the proceedings of the Corporation.
Sir, if we must have a Theological department in the Univer-
sity, let not the President of Harvard College, the College of the
State, be at its head. Separate if you please the Hollis Professor
of Divinity from his connection with the academic part of the In-
stitution—and put an end to the question respecting the perversion
of the Hollis legacy, which yields, I am told, only an inconsid-
erable part of the salary of the Professor—and place him at the
head of the Theological School;-and let it be as separate from
Harvard College as the Theological Seminary at Andover or New-
ton. And let the Unitarian denomination support the School, and
the State, as heretofore, support the College.
But I shall be told that the President is only the nominal Head
of the Theological Department—that he is not to perform any of
the work—not even to pray, as Presidents have been accustomed
to do from time immemorial in the chapel of the University—that
all the drudgery of business is to be performed by another officer
of the Faculty, called by a name, not very familiar to our ears in
this republican country, but which very strongly reminds us of the
English hierarchy. Sir, though the youngest member of the Fac-
ulty may do the work of a Secretary, and even of a supervisor or
overseer, it relieves not the Head of the Faculty from the weight
of responsibility.
But I shall be told that the President of the College is the offi-
cial Head of all the other Faculties in the University—that he
presides over the Law and the Medical department—that the
plan of the University, according to the model of European Uni-
versities would not be complete without such a Supervision. In
reply to this I have only to remark, that the departments of Law
and Medicine come within the cognizance and control of the
State, and there can be no objection to their connection with the
University,+but not so with Theology, unless it is intended, which
may God forbid, to have an established religion. As to imitating
12
the model of European Universities, let it be remembered that most
of those Universities are connected with an established church.
They are no models for us in this free and happy land, where no
one religious sect is established by law.
I regret to trespass so long on the patience of your Excellency
and this Honorable and Reverend Board. But I wish again to refer
to the proposed Statutes—to shew the direct influence which the
Theological Department is calculated to have on the academic part
of the Institution. The fifth article provides “that theTheological Pro-
fessors,with any others whom the Corporation shall from time to time
appoint to that duty, shall perform divine service in the chapel of
the University on the Lord’s day throughout the year.” Is this ser-
vice to be performed for the benefit of the Theological students
only 2 Then why not provide that it shall be performed in the
chapel of the Divinity Hall 2–No, Sir, it is intended for the whole
Institution. The undergraduates, who constitute the academic
part Cr College, are required to attend.
But the connection between the two departments in the Uni-
versity is established, beyond a doubt, by the sixth article of the
statutes: “The daily prayers in the chapel of the University, and
also those in the chapel of divinity Hall, shall be attended by the
Theological Professors.”
Sir, how can it be said that the proposed plan of a Theological
Department in the University, was specially designed to effect a
separation between the College and Theological School
If it was not intended that the Theological Department should
have a direct influence on the academic part of the Seminary why
not confine the duties of the Theological Professors to the Divinity
Hall? Why bring them over every morning and evening to the
college chapel, to lead the devotions of the undergraduates? The
influence which such a sacred, such a tender, such a daily inter-
course is calculated to have upon the young and opening mind,
will be felt and appreciated by all. What better, what surer way
could human wisdom devise to imbue the mind with any sys-
tem of religious faith, than to bring the professed teachers of that
faith in daily connexion with the youth of a college, at the morn-
ing and evening sacrifice Sir, I pretend not to say that the officiat-
ing professors will introduce subjects of controversy into their
13
prayers. I believe them to be too wise and too serious; but,
if consistent with themselves they will certainly omit many
things which the children of the orthodox part of the community
are accustomed to hear from the lips of their pious parents, at
the domestic altar. --- -
May it please your Excellency—I hope this Honorable and Rev-
erend Board will weigh well what they are about to do. The bu-
siness before us is, to my mind, the most important that has come
before this body since my connection with it, for more than twenty
years. The eyes of our constituents, are upon us. The people
of this Commonwealth have a deep interest at stake, in the decision
of this question. They are composed of different denominations
of professing Christians. They expect, and have a right to expect,
that we will show no partiality.
There is nothing more dreaded than a union of church and
state. Let us not give any occasion for this reproach by uniting
any denomination of the church with this child of the state. Let
me put it to the conscience of every liberal minded gentleman in
this assembly. If a proposition was now before this Board to es-
tablish a Calvinistic Theological Faculty, in the University of the
State, and put the president of Harvard College at its head, would
not the people rise, en masse, and enter their solemn protest against
such an encroachment on religious liberty. Yes Sir, and I would
be one of the first to liſt up my voice against it. And where, I
pray you, is the difference in the principle Of what consequence
is it whether the sect, thus to be established as the religion of the
state, believes in a long creed or a short one, or in no creed at
all Sir, the religious opinions of the proposed Theological
Faculty are well known, though they may not consist of thirty-
nine articles—and there is the same injustice in establishing, as the
religion of the state, a sect which has no written creed, as in
recognizing one that admits all the doctrines of the Westminster
Confession of faith. I repeat it, I hope this Board will weigh well
what they are about to do. At any rate, I hope they will give the
people of this Commonwealth time to reflect upon the subject, by
postponing the decision of it to another stated meeting of this
Board.
May it please your Excellency—I have discharged a painful
duty. Gladly would I have relinquished it into other hands,
14
but, since this honorable and reverend Board has become in part
elective, no clerical member has been admitted, though a number of
vacancies have occurred—eaccepting of that religious denomina-
tion of which the proposed Theological Faculty is well known to
consist. The impartiality of the chair has placed me where I
stand on this important Committee—and I could not, without a
dereliction of principle, without a violation of conscience,—and
without a total disregard of the religious liberties of this Common-
wealth—withhold from this honorable and reverend Board, my
reasons for not concurring in the report of the Committee.
I have not the vanity to suppose, that standing as I do in so small
a minority in this Board as to religious opinion, I shall be success-
ful in arresting the establishment of a Theological Faculty in this
University, but I do hope, and have strong confidence that the liberal
minded º whom I have the honor to be associated,
will consent to a recommitment of the proposed statutes, with
a view so far to modify them, as to separate the distinguished lay-
man, who now presides over the University, from any connection
with the Theological department, -to make the Divinity School, if we
must have one, perfectly º part of the Insti-
tution,-and to secure to the Cómmonwealth a pledge, that it shall
look only to the denomination of which it consists, for its support.
Sir, I have spoken for myself. I have given utterance to the spon-
taneous, unbiassed effusions of my own mind. I have not consulted
with any man or body of men, respecting the opinions I have
advanced in this Board. I am the organ of no party, religious or
political. Although, in early life, I was thrown by circumstances,
over which I had no control, into scenes of religious controversy, I
am no controversialist. I have never appeared, nor do I wish to
appear before the public in this character. I have been content
with my pastoral duty—and have wished to keep myself aloof
from the din of controversy. Sir, it is because I love peace
and dread polemic war,<-It is because I love my Alma Mater, and
wish to see her enjoy the confidence of the whole people,_It is
because I love my country and am a friend of religious liberty,’-
It is because I am conscientiously opposed to a union of church
and state—that I have spoken with so much freedom. I trust I
have discharged this duty in a spirit of meekness, and with a pro-
15
per respect to constituted authority. I have stood in my lot—and
although I have been obliged to differ from gentlemen whom I
highly respect, I trust they will give me credit for being actuated
by no other motive, than a sincere regard to the best interests of the
University.
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N U. S.
















































































PLEA FOR HARWARD :
SHOWING THAT
“THE UNIVERSITY AT CAMBRIDGE”
TWAS NOT THE NAME
ESTABLISHED FOR THIS SEMINARY BY THE CONSTITUTION OF
MASSACHUSETTS,
BUT THAT
THE NAME AUTHORIZED BY THAT INSTRUMENT
WAS
“HARWARD UNIVERSITY.”
BY A N A LUMNUs.
--A . . . . . * ... y •,
A - , 2 *
/ & L^{ ; : • - >
4- - - - - - - , , . -.sº- ~ * * i... . . .” -
B O S T ON:
W M. C R O S BY & H. P. NIC HOLs,
111, WASHINGTON STREET.
I 8 49.
PL E A F O R H A R W A R D.
A REMARKABLE change, of a character alike extra-
ordinary and unexpected, has been introduced within
the last three years in reference to Harvard Universi-
ty. Ever since October, 1846, all the official corres-
pondence of the head of this institution, all its semi-
annual Catalogues, all official communications to the
Board of Overseers, have been carefully issued under
the name of The University at Cambridge ; and the
long-known and previously approved name of Har-
vard University has been as carefully avoided. This
change was made without any known vote of the
Corporation, — without any sanction of the Board
of Overseers, sought or suggested, - without any
reasons, publicly offered, for its necessity, utility, or
propriety. It was, however, of course, regarded as,
in fact, the act of the Corporation, although, for some
good reason, not avowed at the time to be theirs;
since it was impossible to imagine that any single
functionary or any minor authority of the seminary
would have ventured on a change so likely to be
offensive to some and so questionable in the view of
4.
all, without the official sanction of the presiding board.
At no previous time had the Fellows of that Corpora-
tion enjoyed more entirely the confidence of the com-
munity, from their known talent, integrity, and fidelity.
There was no disposition in the public, or among the
Alumni, to cavil at any of the measures of the govern-
ment of the seminary, or to question their wisdom ;
although they would have been grateful, if, at the
time the change was made, the motives leading to it
had been communicated.
Concerning the nature of the policy there could
be no question. The end proposed was, plainly, to
separate, forever, the name of Harvard from that of
University, - to throw it back and confine it exclu-
sively to its Colonial association with that of College;
in consequence of which, the University, being de-
prived of any name, would be compelled to take its
designation from its locality.
The mysterious silence which was maintained for
more than two years, in regard to the motives for this
change, gave time and scope for much discussion, in
private circles, concerning its object and usefulness.
The dissatisfied, although numerous, were not dispos-
ed, however, publicly to animadvert upon a measure
which they trusted might yet be explained and jus-
tified.
In due time the Triennial Catalogue made its
appearance, but in a shape so questionable that its iden-
tity could scarcely be recognized. Instead of the old,
simple name of Catalogus Universitatis Harvardianae,
— The Catalogue of Harvard University, - which
that venerable publication had notoriously enjoyed for
more than sixty years uninterruptedly, it now ap-
5
peared under the title of Catalogus Collegii Harvardi-
ani SEU Universitatis Cantabrigiensis, – The Cata-
logue of Harvard College, or, of the University at
Cambridge ; — this alternative form being obviously
devised to express both the title which that publica-
tion had enjoyed in former times, and that which it
was intended it should enjoy in future.
The oddity of this Janus-faced title having excited
no inconsiderable animadversion, a continuance of the
mysterious silence on the subject of the motives of
this change was no longer practicable. A public dec-
laration of the reasons which had led to the discon-
nection of the name of Harvard from that of University,
and to the apparent intent to confine it altogether,
in future, to its connection with the humbler title of
College, was at length made ; not, indeed, where it
might have been expected, in the hall of legislation
and before the Board of Overseers, but in a small
pamphlet, intended chiefly for the use of the imme-
diate government and students, which, discarding the
long-established and approved name affixed to similar
publications, was now entitled “A Catalogue of the
Officers and Students of the University at Cambridge,
for the Academical Year 1848 – 49.” Four times,
during the two previous years, a like pamphlet had
been issued with a like change in the name of the
seminary, but never before were the motives for the
alteration made manifest to the public. This mani-
festation appeared in the last page of the pamphlet
above referred to, by way of “Note” to its first page,
which gives the seminary the new title of The Uni-
versity at Cambridge, by which the Note maintains it
ought to be called. The exact terms of this Note are
annexed, marked A.
6
After remarking, in a slight way, that “the name
of ‘Harvard University’ prevails extensively, * the
authors of the Note proceed to intimate that this ap-
pellation, as though it were a recent novelty, derives
its chief sanction from “the high authority of Mr.
Peirce and President Quincy, in their respective his-
tories.” As if those gentlemen took upon them-
selves any special responsibility in this respect, or
did any thing more than adopt a name which was so
“extensive ’’ as to be in a manner universal / That
the authority for the use of this name rests no way
with them, it need only be stated, that the Catalogue
of the Library of the seminary, published, under the
special sanction of the Corporation, three years before
the History of Mr. Peirce, and ten years before that
of Mr. Quincy, was entitled “A Catalogue of the Li-
brary of Harvard University in Cambridge, Massachu-
setts.” It is proper to add, that Mr. Peirce's History
was a posthumous work, and that its title was given
to it by the late John Pickering, under whose auspices
it was published ; a man inferior to none, among the
graduates of the College now living, for love of Har-
vard and love of accuracy.
Notwithstanding the tendency of the tenor of this
Note to mislead the public mind as to the material
facts upon which the right of the seminary to take
the name of “ Harvard University” depended, it did
not seem to be from its nature important enough, nor
yet, in view of the circumstances under which it was
issued, to have a sufficient degree of publicity, to
justify any public comment upon its statements and
objects.
The recent Annual Report of the state of the Uni-
7
versity for the academical year 1847–48, presented
in January last, by the head of the institution, to the
Board of Overseers, in conformity with the standing
orders of that Board, has altered the relations of
things, in this respect, altogether, and has rendered
some animadversion upon this attempt to change the
name of the seminary necessary and unavoidable. In
a “Paper” appended to that Report, and submitted
with it to the Overseers, not only is the name of
“Harvard University” silently set aside, but it is as-
sumed that the name given by the Constitution of
the Commonwealth to Harvard College was “The
University at Cambridge.” That Paper is hereto
subjoined, marked B.
On its general tenor it is not intended here particu-
larly to remark. All that it states about the language
used by the magniloquent Mathers, or in diplomas
issued prior to the adoption of the Constitution of
Massachusetts, has, obviously, nothing to do with the
subject in dispute. No man ever pretended, or can
pretend, that Harvard College ever had a legal right
to assume the name of “University’ antecedently to
the Constitution of 1780. The question in contro-
versy is, – What name did that instrument authorize
Harvard to assume? The authors of the Paper ap-
pended to the abovementioned Report allege that the
name legally established by the Constitution of the
Commonwealth for Harvard College was THE UNI-
VERSITY AT CAMBRIDGE. In opposition to which, it
will be the endeavour in this publication to maintain
the following points : —
1. That “The University at Cambridge’ was not
the name given to this seminary by the Constitution,
or intended to be given to it by its framers.
8.
2. That “Harvard University’ was the name which
the Constitution of the Commonwealth authorized
the Seminary to assume, and that such was the inten-
tion of the framers of that instrument.
3. That “Harvard University’ was the name pub-
licly and officially given to the seminary by its authori-
ties, immediately upon the adoption of the Constitution,
— and this, under and by virtue of the provisions
and intentions of that instrument, as practically ex-
pounded by its framers themselves.
4. That the name thus given it, in the great doc-
uments particularly intended for the public, and to
which the expression of its true name was essential, it
has used and maintained, without a single known
interruption, ever since, until the year 1846.
These points will be, it is believed, satisfactorily
demonstrated from history and unquestionable public
documents.
The name given in 1638 to “the school or college’”
in Cambridge, which had been established in 1636,
was “Harvard,” with an intention, at this day alto-
gether unquestionable, that “Harvard ” should thence-
forth and forever be THE NAME of the institution.
Accordingly, when, in 1650, a charter of incorpora-
tion was granted to it by the Colonial legislature,
it was declared, that the authorities constituted by
that act should “ have perpetual succession and be
called by the name of ‘President and Fellows of
HARVARD COLLEGE.’”
This was the only name by which the institution
could legally and with strict propriety be designat-
ed. Notwithstanding this, it obtained in the earliest
9
times, and continued to the period of the Convention
of 1780 to be known by, a descriptive appellation
taken from its locality; — not only in familiar dis-
course, but sometimes in acts of the Colonial legis-
lature, being referred to as “The College at Cam-
bridge.” Yet in Colonial times, this descriptive ap-
pellation, though often used, was never regarded as
the name of the institution, and could not be ; for the
Seminary had a charter name, which all knew, and
which no one then desired to supersede, or thought it
possible should ever be superseded.
The institution at Cambridge, as respects the sub-
ject now under investigation, was found, therefore, by
the Convention assembled in the year 1780 for the
purpose of framing a Constitution for the Common-
wealth, under the following circumstances. It had a
corporate name, – Harvard College, – derived from
its charter. It had a descriptive appellation, — taken
from its locality, - The College in Cambridge. It
might, with sufficient intelligibility, be designated by
either form of words; but its name was “HARVARD.”
The friends of Harvard College in that Convention
were desirous, not only to confirm its ancient rights
and privileges, but to enlarge them, to strengthen its
foundations, and to advance it from the secondary
grade of a College to the rank of a University. But
in carrying into effect these wishes, they were embar-
rassed' and obstructed by the political elements of
which the Convention was composed. The nature of
those elements it seems proper here to state ; as the
facts have been derived from members of that body
who have survived to our time, and from their con-
temporaries. They are facts belonging to the his-
2
10
tory of Massachusetts, and are corroborated by the
known public relations of men and things at the time
the Constitution of the Commonwealth was framed.
They show the difficulties that had to be encountered,
and explain the origin of some of the provisions of the
Constitution, in respect to the College, which have
been the subject of cavil; particularly that relating to
the Board of Overseers, a body which, constituted as
it is, has always been regarded as ill-adapted to the
supervision of a literary institution. The friends
of Harvard did all that the circumstances in which
they were placed permitted ; they were desirous to
do more, but, under those circumstances, they were
thankful that they were able to effect so much.
At that time the people of Massachusetts were
divided into two political parties, with one of which
the popularity of John Hancock was all-prevailing and
unbounded ; with the other, James Bowdoin was the
prominent object of favor, and Hancock’s influence
was deprecated and deemed permicious. In respect
to the general politics of the State, the party of which
Hancock was the head was paramount. But in
the election of the members of the Convention for
framing a new Constitution, a higher, a more talent-
ed, and more generally respected body of men than
those usually returned to the legislature had been
chosen. These were, many of them, men who for
the most part abstained from all connection with polit
ical life, and were induced to become candidates for
the Convention only from a consideration of the im-
portance of the occasion and the permanent effects of
its results on the future prosperity of the Common-
wealth. The consequence was, that the party led by
1
Hancock, which possessed an unquestionable majority
in the State, was, in fact, in the minority in the Con-
vention, and, extremely to Hancock’s annoyance and
disappointment, James Bowdoin was chosen Presi-
dent of that body.
In the Hancock party were included many of the
known malcontents with Harvard College, – men who
had no sympathy for science or classical education,
and who were ready to oppose any proposition for the
benefit and advancement of that institution. On the
contrary, the party of which James Bowdoin may be
considered the exponent included all the active friends
of that seminary, and was chiefly composed of men
regarded by the opposite faction with jealousy and
fear, to some of whom Hancock then gave the sobri-
quet of “The Essex Junto *; the delegates from that
County being among the most talented and efficient
members of the Convention. These most eminent
friends of Harvard College were James Bowdoin,
Oliver Wendell, John Lowell, and Ebenezer Storer,
delegates from Boston, — Increase Summer, from Rox-
bury, - John Adams, from Braintree, – John Pick-
ering and Benjamin Goodhue, from Salem, - Jona-
than Jackson and Theophilus Parsons, from New-
buryport, — Samuel Phillips, Jr., from Andover, —
George Cabot, from Beverly, - with many others.
At this time Mr. Hancock was possessed by a
spirit of personal resentment towards the Corporation
of the College. He had been for many years its
Treasurer; he had been requested by that body to
resign his office ; he had disregarded their request;
and in 1777, contrary to his expectations and wishes,
he had been removed by the Corporation, and another
12
person had been appointed in his place. He was also
a delinquent debtor of the College, and his neglect
to settle his accounts had been repeatedly the subject
of animadversion and complaint. His discontent and
feelings of resentment were matters of general noto-
riety.
In this state of parties, the friends of Harvard Col-
lege, upon consulting together, and after a reference
of the subject to the Corporation, came to the conclu-
sion, that any formal provision for enlarging the pow-
ers and privileges of the seminary, or altering or even
materially modifying that supervisory relation which
in Colonial times the State had always maintained,
even if successful in the Convention, would in all
probability, when submitted to the people, be reject-
ed. They therefore finally came to the determination
to limit their endeavours to secure for the institution
its ancient powers and privileges, and, by indirectly
authorizing it to take the name of “University,” to
prepare the way for enlarging its foundations and el-
evating it to the rank desired. How they effected
these objects will be seen by a reference to the Fifth
Chapter of the Constitution of the Commonwealth.
All the parts of this instrument which have any bear-
ing on the question now under discussion are given in
the Appendix, marked C.
The course of their proceedings was as follows.
They took for the title of the Fifth Chapter the an-
cient descriptive appellation of the seminary, borrow-
ed from its locality, only changing it from “The Col-
lege at Cambridge’ to “The University at Cam-
bridge.” As the former had never been considered the
name of the seminary, it could not possibly have been
13
anticipated that the latter would ever be understood
to be thus intended; since, as was sufficiently man-
ifest from the body of the chapter, the corporate name
still remained unchanged, - HARVARD COLLEGE.
The first section of the fifth chapter is entitled
“The University,” and is expressed in the following
significant terms: — “Art. I. Whereas our wise and
pious ancestors, &c., laid the foundation of HARVARD
CoLLEGE, in which university many persons of great
eminence have, &c., -it is declared, that THE PRES-
IDENT AND FELLOWS OF HARVARD COLLEGE, in their
corporate capacity, and their successors, &c., shall
have, &c., all the powers, &c., which they now have,
&c., and the same are hereby ratified and confirmed
unto them,” &c.
The second article confirms all gifts, grants, &c.,
according to the true intent of the donors.
In the third article, after declaring who shall be the
Overseers of “ HARVARD College,” they proceed to
annex a proviso, reserving to the legislature of the
Commonwealth a right to make alterations in the
government of “the said university.”
The second section of the fifth chapter has no
reference to the subject now in controversy, except
that it refers to the seminary, not by its name, but, in
conformity with the title of the chapter, by its ancient
local appellation, altered so as to express the charac-
ter and rank intended to be now assigned to it as a
literary institution ; the language and context being
as follows:– “It shall be the duty of legislatures
and magistrates, in all future periods of this Common-
wealth, to cherish the interests of literature and the
sciences, and all seminaries of them ; especially the
14.
university at Cambridge, public schools, and grammar
schools in the towns,” &c.”
* In a similar connection, and obviously with a like application, merely
as expressive of the proper rank of the institution among other semina-
ries of learning, this designation is employed in the statute of June 25,
1789, referred to in the “Paper’’ appended to the recent Annual Report
to the Overseers. This statute is entitled “An Act to provide for the In-
struction of Youth, and for the Promotion of good Education,” and con-
sists of twelve sections, commencing with a preamble setting forth the du-
ty of the legislature “to provide for the education of youth,” as declared
in the second section of the fifth chapter of the Constitution of the Common-
wealth, entitled “The Encouragement of Literature, &c.,” — and the ne-
cessity of “a general dissemination of knowledge and virtue " in order to
“the prosperity of every state and the very existence of a commonwealth.”
The first section provides for the employment of schoolmasters and gram-
mar-schoolmasters in the several towns and districts, according to the num-
ber of families in each. The second empowers towns, &c., to define the
limits of school districts. The third prescribes the qualifications of pupils in
the grammar-schools. The fifth, the qualifications of schoolmasters. The
sixth lays down the penalties for neglecting to procure and support school-
masters as aforesaid. The seventh regulates the manner of levying and
appropriating said penalties ; and designates the functionaries whose duty
it shall be to see that the schools are regularly attended, and to visit and
inspect them. The eighth empowers parishes, &c., to raise money for the
support of the schools. The ninth prescribes the qualifications of teach-
ers of primary schools. The tenth provides that none but naturalized citi-
zens shall be permitted to keep any school described in the Act. The
eleventh prescribes the mode of recovering the fines hereby imposed, and
makes it the duty of grand jurors to inquire into and present all violations
of the Act. The twelfth fixes the date at which the Act is to go into op-
eration. By the fourth section, — the only one in which the College is
in any way alluded to, -it is “made the duty of the president, profes-
sors, and tutors of the University at Cambridge, preceptors and teachers
of academies, and all other instructors of youth, to take diligent care, &c.,
to impress on the minds of children and youth committed to their care and
instruction the principles of piety, justice, &c., and those other virtues
which are the ornament of human society,” &c. It is in reference to this
solitary instance of the mention of “the University at Cambridge,” thus
incidentally occurring in the midst of an Act providing for the establish-
ment of common schools, that the Paper above referred to parades the re-
mark, that “such is exclusively the name given to the institution by the
statute of the 25th of June, 1789, passed to carry into effect the fifth chap-
ter of the Constitution.”
15
jº-
Among the objects which the friends of the College
intended to effect and did effect, by the language of
the fifth chapter, was this : — Harvard, which had
ever before been known only as a College, was now
declared to be entitled henceforth to be known as a
University; and although, in all documents intend-
ed to have a legal effect, the President and Fellows
were still restricted to their charter name, “Har-
vard College,” yet in all documents expressive of
the rank, the powers, and the most important acts
of the seminary, its authorities had a right to call it
“Harvard University,” and themselves “The Presi-
dent and Fellows’ or “Corporation of Harvard Uni-
versity.” That such a right was conveyed and was
intended to be conveyed by the Constitution of the
Commonwealth is apparent from the measures imme-
diately pursued by the authorities of the seminary :
amounting to a contemporaneous exposition of the
effect of that instrument and of the intentions of its
framers.
There are two public documents, in which the au-
thorities of the seminary openly declare, in the most
authentic form, the name by which the institution is
appropriately called and to be distinguished. One
is published every year, and is called “The Theses
at Commencement”; the other is published every
three years, and is denominated “The Triennial Cat-
alogue of the Graduates.” The first, indeed, takes
the, form of a “dedication,” or “humble submission
of their exercises,” by the graduating class, to the
authorities of the State and of the University, to the
clergy, and to the general patrons of literature through-
out the world. But although the document has this
16
form, it is always issued under the direction of the
authorities of the University, who always of course
dictate the name by which the institution is to be de-
signated. The same may be said of the Triennial
Catalogue ; the name of the seminary is all-essential
to the authenticity of that document.
Now it is remarkable that neither in the apologetic
“Note ’’ appended to the Catalogue of Officers and
Students for the year 1848–49, nor yet in the “Pa-
per ?” appended to the Report to the Overseers for the
year 1847–48, is there any allusion made to these
prominent and conclusive documents; but, passing
over all the intermediate evidence, taking a leap of
nearly thirty years from the adoption of the Constitu-
tion, the authors of the recent innovation take their
rest upon a change attempted to be made in the Di-
plomas by Dr. Kirkland in the year 1810. On such
an extraordinary omission, where fulness and great
precision might have been expected, it is not intend-
ed here to remark.
The two documents above alluded to were regard-
ed by the authorities of the University, at the period
of the adoption of the Constitution of the Common-
wealth, in a very different light from that in which
they seem to be viewed by the authorities of 1848.
They considered those two documents, together with
the Diplomas, as the places in which the public had a
right to expect that the name which the seminary had
received from and intended to assume under the new
Constitution should appear ; and they accordingly
omitted, in respect of either, no opportunity to pass
without publishing this name to the world.
The Constitution of Massachusetts was finally
17
adopted by the people in June, 1780. It went into
operation in October, 1780, when the first legislature
under it assembled. In August of that year, Presi-
dent Langdon resigned ; and his successor, President
Willard, was installed in December, 1781.
In the Theses for the year 1780, which were the
last issued under the presidency of Langdon, the
name assumed by the institution was “Harvard Col-
lege’’; the President being addressed by the grad-
uating class in the words, – “Honorando D. Samueli
Langdon, Collegii Harvardini Praesidi.” In the The-
ses of 1782, being the first issued under the presiden-
cy of Willard, the name assumed by the institution
was “Harvard University’’; the President being ad-
dressed by the graduating class in the words, –
“Reverendo Josepho Willard, Universitatis Harvardi-
anae Praesidi.” Again, in the last Triennial Cata-
logue issued under President Langdon, in the year
1779, the institution was styled “Harvard College,”
— the Catalogue being entitled “Catalogus eorum
qui in Collegio Harvardino,” &c.; whereas in the
Triennial Catalogue issued in 1782, being the first
under President Willard, the name “Harvard Uni-
versity' was given to the seminary, and the docu-
ment was entitled “Catalogus eorum qui in Univer-
sitate Harvardiana,” &c. In conformity with this, it
now appears, by the very showing of the Paper ap-
pended to the recent Annual Report to the Overseers,
that the name adopted by the authorities of the Uni-
versity, in “the caption of the Diplomas,” also, of
this period, was “‘Senatus Universitatis Harvardi-
anae Cantabrigiensis in Republica Massachusettensi,”
with the entire omission of Collegium Harvardianum.”
3
18
Now is it possible for any contemporaneous public
declaration of the effect understood to be produced by
the Constitution of the Commonwealth on the name
of the seminary to be more distinct and unquestionable
than that afforded by these three documents, – the
Theses, the Triennial Catalogue, and the Diplomas P
It is a fact unquestionable, that the name assumed
by the authorities of the University for the Theses
and for the Triennial Catalogue in 1782 was contin-
ued to be given to the world, as the true Constitu-
tional name of the University, from that period, -in
the former to the year 1846, and in the latter to the
year 1848, - without a single known interruption ;
and that the same designation, contemporaneously
adopted for the Diplomas also, according to the show-
ing of the Paper appended to the recent Report to
the Overseers, “probably prevailed for honorary de-
grees till President Kirkland’s time, [in 1810, and
has existed for all the degrees till the present year.”
Another fact, of much significance, should not be
overlooked. Of the two alternative names which
constitute the title to the Triennial Catalogue for
1848, the first, “Harvard College,” (Collegium Har-
vardianum,) was rejected by the authorities of the
University in 1782, and the second, “The University
at Cambridge,” (Universitas Cantabrigiensis,) was not
adopted by them; and the name “Harvard Universi-
ty,” which the wise men of 1848 rejected, as not be-
ing the name given to the seminary by the Constitu-
tion of the Commonwealth, was the very name which
the wise men of 1782 adopted, as the one authorized
by that Constitution, and intended by its framers.
And now, in connection with these striking and
19
unquestionable facts, let it be borne in mind, that
among the members of the Corporation of the Uni-
versity, during the period here referred to, were Eb-
enezer Storer, from 1777 to 1807, − James Bow-
doin, from 1779 to 1785, – John Lowell, from 1784
to 1802, — Oliver Wendell, from 1788 to 1812, —
Theophilus Parsons, from 1806 to 1812; and that ev-
ery one of these men was a member of the Convention
which framed the Constitution of the Commonwealth in
1780, and some of them took a leading part in that
work. Under the auspices and authority, then, of
these members of that Convention and framers of the
State Constitution, the name of “Harvard Universi-
ty’’ was published to the world successively in the
annual Theses of the University, in the Triennial Cat-
alogue, and in the Diplomas, for nearly thirty years
from the date of the adoption of the Constitution,
without a single intermission, (so far as is known,)
and the same has been thus continued (with, perhaps,
occasional exceptions in the honorary degrees since
1810) until the year 1845, inclusive. More complete
evidence of the meaning of the Constitution and the
intention of its framers could scarcely exist, or be re-
quired.
In the apologetic “ Note ’’ appended to the Cata-
logue of Officers and Students for 1848–49, it is said
that “‘Harvard College and ‘The University at
Cambridge' are the only names known (it is be-
lieved) to the legislation of the Commonwealth.”
Yet in the address of the Convention for revising the
Constitution of Massachusetts in 1820 – 21, to the
people of this State, accompanying the amendments
proposed to be made in that instrument, is the follow-
ing remarkable paragraph, entitled, –
20
“ HARWARD UNIVERSITY.
“We have thought it proper to inquire into the present
state of this ancient and respectable institution ; and have
done this by the agency of a fully competent Committee.
We have made this inquiry, because this seminary has expe-
rienced the patronage of Government from its earliest founda-
tion, and was justly held to be worthy of appropriate Consti-
tutional provisions by our predecessors. It appears that the
powers conferred on Harvard University have always been
exercised, and that the duties required of it have always been
performed, with a sincere and ardent desire to promote the
diffusion of useful knowledge, and to establish and preserve
an honorable reputation in literature and morals, in this com-
munity.” +
Whether the foregoing language be in strictness
that of a legislative body or not, one thing is certain,
— that the Convention of 1820–21 regarded “Har-
vard University " as the then known, approved, legit-
imate name of the seminary to which the “Constitu-
tional provisions” of their predecessors attached.
But it is said, that, at different times, and on sev-
eral occasions, the President and other authorities of
the seminary have called it “The College at Cam-
bridge,” “The University at Cambridge,” “Cam-
bridge University’ or “College,” &c. Certainly ;
and without any serious objection. So long as the
great, solemn, authentic documents, regularly issued
at stated intervals under the express authority of the
Corporation, bear the true Constitutional name of the
seminary, great latitude may very properly be per-
mitted to individual functionaries or to the Faculty of
the College to issue publications, of minor importance,
* See the Journal of that Convention, p. 285.
21
bearing the descriptive appellations taken from its lo-
cality, and by which it is generally known.
A great deal might here be said of the inexpediency,
the injustice, the ingratitude, of separating an honored
name from the “University,” of which, as a “Col-
lege,” it has been the glory for more than two hun-
dred years ; and that for objects not avowed, and the
benefit of which is not apparent. Could the framers
of the Constitution possibly have conceived, that, by
the use of a familiar descriptive appellation, they had
opened an opportunity for this form of expression to
be seized upon in after times to give a name to the
University from which that of Harvard should be ex-
cluded, and that, in consequence, in the place where
the name of Harvard had always been first and para-
mount it was thereafter to appear only as secondary
or not at all, it cannot be questioned that they would
have rejected the local appellation with a feeling akin
to horror; for no name was more consecrated in the
affections of the people of Massachusetts, and justly
so, than that of the earliest benefactor of the College.
And especially would such a change have been re-
pugnant to their feelings, when it was perceived that
the University was not only thereby to be deprived of
the venerated name of Harvard, but to be left, like a
beggar's foundling, with no other name than that of the
parish in which it was dropped.
Enough, it is apprehended, has now been said, to
prove that the title to the Fifth Chapter of the Con-
stitution of the Commonwealth was never regarded as
THE NAME of the University, nor intended by its
framers to exclude the connection with it of the
name of Harvard ; – that, on the contrary, the
22
framers of the Constitution themselves intended that
the institution should be called “Harvard University,”
whenever its authorities saw fit to adopt this name, as
indicative of its rank; — that under their auspices it
was adopted in 1782, and with their sanction it was
continued for sixty-four years, until October, 1846,
when it was changed without any avowed object and
without any known authority.
Upon the point, in whom are vested the right and
power to change the name of the institution at Cam-
bridge, from that of “Harvard University,” which
it has so long enjoyed, it seems proper here to ex-
press an open and decided opinion ; and to say that
this right and power are vested, neither in the Fac-
ulty, nor in the President and Fellows of the Corpo-
ration, nor in the Board of Overseers, nor yet in all of
them together, but solely and exclusively in the le-
gislature of the Commonwealth of Massachusetts.
Surely, if a child ten years of age, who has received
a name at the baptismal font, cannot, of his own ac-
cord, or at the will of his parents, have his name
changed without applying to the legislature, — an in-
stitution, which is peculiarly of a public nature, with
whose name the gratitude of the State is identified,
which was conferred by the framers of the Constitu-
tion, and of which it has had uninterrupted posses-
sion nearly seventy years, shall not be deprived of
that name, whether for any or no purpose, by any
less authority.
In a review of the documents which have led to
the present publication, the attention of the writer
has been recently drawn to an apparent discrepancy
in some of them from the course of proceedings which
23
has been the occasion of these strictures. After the
studied exclusion of the name of “ Harvard Univer-
sity,” for nearly three years, from all those official
publications of which that name had formed, for more
than half a century, a part of the title, – after its
exclusion from the annual Theses during the same pe-
riod, and at last from the Triennial Catalogue, – it
appeared impossible for any man to doubt that these
changes were the result of the deliberate action of the
Corporation. The writer of these strictures did not,
therefore, for a moment, hesitate to conclude that it
was under their authority that “Harvard ” was now
and for ever to be separated from the name of “Uni-
versity’; — in other words, that “Harvard Univer-
sity’ was now an abjured association. He deemed
himself justified, therefore, in attributing this ominous
change to the action or influence of that body. To
his utter astonishment, he has recently perceived,
that, in the Annual Report to the Overseers, in which
the name of “Harvard University’ is carefully avoid-
ed, and in the “Paper ‘’ subjoined to it, in which
there is a labored attempt to prove that another name,
and not “Harvard University,” is the Constitutional
name of the seminary, there is contained the reply
of the Corporation to the late President’s letter of res-
ignation, in which they call themselves “The Corpo-
ration of Harvard University,” and address him as
“President of Harvard University "; — a discrep-
ancy which to common minds is inexplicable. For
the several Fellows of that Corporation the writer of
these strictures has the most entire personal respect.
lf, therefore, he has committed a mistake in attribut-
ing the proceedings of the last three years in reference
24
to this point to their agency, he hopes it will be con-
sidered a venial error, arising solely from the impossi-
bility of conceiving that any single or minor authority
of the seminary should have taken upon itself, without
their sanction, so extraordinary a responsibility.
The change of purpose, or of influence, which these
discrepancies between the language of the Corpora-
tion and that of the documents and proceedings above
commented on indicate, and the hopes it inspires, led
the author of these strictures, at first, to resolve to
withhold them altogether, — a course which would
have been far more accordant with his wishes than
their publication. Reflecting, however, upon the
strange manner in which the facts above stated have
been slighted or overlooked, and considering, that, at
some future time, through ambition, pride of purpose,
or project of interest, a like attempt to change the
name of the University might be made, under circum-
stances more favorable to its success, he could not
reconcile it to his sense of duty to Harvard to refrain
from placing before the friends of that cherished insti-
tution the preceding facts and arguments, in a form
best adapted to give them a chance never to be again
overlooked or disregarded.
A PP E N DIX.
A. — See Page 5.
NOTE AIPPENDED TO THE SEMI-ANNUAL CATALOGUE
FOR 1848–49.
NOTE.
“HARVARD COLLEGE * is the name given to the institution by
the Charter of 1650, which still remains unaltered and in force.
The legal style of the Corporation is “The President and Fellows
of Harvard College,” and their rights and privileges are confirmed
to them under that name by the Constitution of the Common-
wealth.
The chapter of the Constitution in which this is done is entitled
“The University at Cambridge and Encouragement of Literature,
&c.,” and in its first section Harvard College is spoken of as “the
said University.” In the second section it is declared to be the
duty of all legislatures and magistrates to cherish the interests of
the University at Cambridge, which is also the name given to the
institution by the Statute of 25th June, 1789, enacted to carry the
second section of the fifth chapter of the Constitution into legal
effect.
The name of “Harvard University” prevails extensively;
more so, perhaps, than either of the other designations; and it is
sanctioned by the high authority of Mr. Peirce and President
Quincy in their respective histories. But “Harvard College” and
“The University at Cambridge" are the only names known to
the Charter, to the Constitution, and (it is believed) to the legisla-
tion of the Commonwealth.
4.
2
6
B. — See Page 7.
PAPER SUBMITTED WITH THE ANNUAL REPORT, JAN.
11, 1849.
“THE UNIVERSITY AT CAMBRIDGE.”
THE right of Harvard College to assume this name was, per-
haps, for the first time legally established by the Constitution of
the Commonwealth, in the fifth chapter of which the institution is
so designated. This was done with the full concurrence of the
Corporation, by whom that chapter of the Constitution was pre-
pared and submitted to a committee of the Convention. Such is
also exclusively the name given to the institution by the statute of
the 25th of June, 1789, passed to carry into effect the fifth chapter
of the Constitution.
But the name, with the supposed exclusive prerogative of a
University, that of conferring honorary degrees, had been claimed
for the College at a much earlier period. President Increase
Mather, in his public address at Commencement, in 1692, after his
return from England, with other remarks pertinent to the point,
says, – “The General Court of Massachusetts, the Governor,
Council, and people of New England, have named and established
Harvard College as a University (academiam), with authority to
confer degrees, in the manner of the English Universities.” In
the title-page to the Magnalia, published in 1702, the fourth book
is said to be “An Account of the University of Cambridge in
New England.”
The general diplomas of the classes of 1752, 1764, 1775, and
1779 are preserved in the President’s office. In all of these the
caption runs “Senatus Academiae Cantabrigiensis in Novanglia.”
In the latter portion of the diploma for 1764, the words “ante-
dictae Academiae Harvardinae'' occur casually ; and in the diploma
for 1779, after the above-named caption, the Corporation are men-
tioned as “Praeses et Socii Collegii Harvardini.” The diplomas
for 1752 and 1775 contain neither the words “Collegium Harvar-
dinum,” nor “Academia Harvardina.” A draft of the diploma
of Dr. Franklin for the degree of A. M., in 1753, and the diplo-
ma of John New for the same degree, in 1765, are preserved.
They run in the name of “Academia Cantabrigiensis in Novan-
glia,” without employing any other designation. The President
27
2.
is not aware of any reason for thinking, that the generality of the
diplomas of the last century, prior to 1780, differed from those
preserved.
After the adoption of the Constitution, the caption of the diplo-
mas was “Senatus Universitatis Harvardianae Cantabrigiensis in
Republicá Massachusettensi,” with the entire omission of “Colle-
gium Harvardianum.” This formula probably prevailed for hon-
orary degrees till President Kirkland's time ; and, having been
adopted in the engraved blanks, has existed for all the degrees till
the present year. In 1810, in the draft of the diploma prepared
for President Dwight, which is preserved in Dr. Kirkland’s hand-
writing, the form is “Senatus Universitatis Cantabrigiensis,” and
the Corporation are styled “Praeses et Socii Universitatis Canta-
brigiensis.” It is probable that other honorary diplomas, issued
before the adoption of an engraved form, ran in the same style ;
but of this the President has no knowledge.
In the diplomas of honorary degrees for the present year, the
form of the caption is “Senatus Universitatis Cantabrigiensis
Academicus,” and the Corporation are styled “Praeses et Socii
Collegii Harvardiani.”
It may be observed, in this connection, that a pamphlet official-
ly published by the Corporation, in 1812, and containing the Char-
ter of the College and the legislative acts supplementary thereto,
is entitled “The Constitution of the University at Cambridge.”
• The laws, in the various editions down to 1820 inclusive, are
called “The Laws of Harvard College "; but in the editions of
1825, 1826, and 1828, being all that have been published since
the general revision of the first-named year, the language is “The
Statutes and Laws of the University in Cambridge, Massachu-
setts.” Such, also, was the title of the revision of the laws pre-
pared and printed under the superintendence of President Quincy
(but not published), in 1834, and such, with the correction of the
particle, is the title of the late revision.
The blank form of acknowledgment for donations to the
Library, engraved in President Kirkland's time, and still used,
runs in the name of the Corporation of “the University in Cam-
bridge"; and the paper bears date at “Harvard College.” This
mode of combining the use of both designations is, where the
nature of the document admits it, entitled, in the opinion of the
President, to general adoption.
28
The precise objects of the Corporation of 1780 in seeking, and
of the Convention in granting, this formal recognition of the name
of “University at Cambridge '’; the difference between “col-
lege' and “university "; and the proper use to be made of the
two designations, are questions which might furnish the subject
of a discussion for which this is not the place. They are ques.
tions of academical curiosity and interest, but of little or no prac-
tical importance.
C. — See Page 12.
ABSTRACT OF THE FIFTH CHAPTER OF THE CONSTI-
TUTION.
C H A P T E R W .
THE UNIVERSITY AT CAMIBRIDGE, AND ENCOURAGEMENT OF LITERA-
TURE, &c.
SECTION I.
The University.
ART. I. WHEREAs our wise and pious ancestors, so early as
the year one thousand six hundred and thirty-six, laid the founda-
tion of HARVARD COLLEGE, in which university many persons of
great eminence have, by the blessing of GOD, been initiated in
those arts and sciences which qualified them for public employ-
ments, &c., - it is declared, that the PRESIDENT AND FEL-
LOWS OF HARVARD COLLEGE, in their corporate capacity,
and their successors, &c., shall have, &c., all the powers, &c.,
which they now have, or are entitled to have, &c., and the same
are hereby ratified and confirmed unto them, the said president and
fellows of HARVARD COLLEGE, and to their successors, &c., for-
eVér.
II. And whereas there have been, at sundry times, by divers
persons, gifts, grants, devises, &c., heretofore made, either to
Harvard College in Cambridge, in New England, or to the pres-
ident and fellows of Harvard College, or to the said college, by
some other description, under several charters successively; it is
declared, that all the said gifts, &c., are hereby forever confirmed
unto the president and fellows of HARVARD COLLEGE, and to their
29
successors, in the capacity aforesaid, according to the true intent
and meaning of the donor or donors, &c.
III. And whereas by an act of the general court of the colony
of Massachusetts Bay, passed in the year one thousand six hun-
dred and forty-two, the governor and deputy governor, &c., and
all the magistrates, &c., were, with the president, and a number of
the clergy, &c., constituted the overseers of HARVARD COLLEGE ;
and it being necessary, in this new constitution of government, to
ascertain who shall be deemed successors to the said governor,
&c.; it is declared, that the governor, lieutenant governor, council,
and senate of this Commonwealth, are, and shall be deemed, their
successors; who, with the president of HARVARD COLLEGE, for
the time being, together with the ministers of the congregational
churches in the towns of Cambridge, Watertown, Charlestown,
Boston, Roxbury, and Dorchester, mentioned in the said act, shall
be, and hereby are, vested with all the powers, &c., appertaining
to the overseers of HARVARD COLLEGE ; provided, that nothing
herein shall be construed to prevent the legislature of this Com-
monwealth from making such alterations in the government of the
said university, as shall be conducive to its advantage, &c.
SECTION II.
The Encouragement of Literature, &c.
WisDOM and knowledge, as well as virtue, diffused generally
among the body of the people, being necessary for the preserva-
tion of their rights and liberties, &c.; it shall be the duty of legis-
latures and magistrates, in all future periods of this Common-
wealth, to cherish the interests of literature and the sciences, and
all seminaries of them ; especially the university at Cambridge,
public schools, and grammar Schools in the towns, &c.
/ // * r *
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PRESIDENT QUINCY's SPEECH
ON THE
MINORITY REPORT OF MR. BANCROFT.
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SPEECH
J O S I A H Q U IN C Y,
PRESIDENT OF H A R V AR D UNIVERSITY,
BEFORE THE
BOARD OF OVERSEERS OF THAT INSTITUTION,
FEBRUARY 25, 1845,
ON
T H E M IN OR IT Y. R. E POR. T
OF THE
COMMITTEE OF VISITATION,
PRESENTED TO THAT BOARD BY GEORGE BANCROFT, ESQ.,
FEBRUARY 6, 1845.
B O S T O N :
CHARLES C. LITTLE AND JAMES BROWN.
1845.
C A M B R ID G E :
M ET CALF AND COMPANY.,
PRINTERS TO THE UNIVERSITY.
P R E F A C E .
THE subjoined Speech was made under circumstances
which I deem it proper briefly to explain. It is now pub-
lished, in order that the views I entertain with regard to the
several topics touched upon in it may be known to the public,
and particularly to the friends of Harvard College.
In the year 1843, George Bancroft, Esq., a politician
well known to the people of this Commonwealth, obtained a
seat at the Board of Overseers of Harvard College, through
the temporary ascendency of the political party to which he
belongs, with the aid, as was stated at the time, of Calvinistic
votes. In that and the succeeding year, three Calvinists, two
clergymen and one layman, were elected into the Board, chief-
ly, as was also then stated, by the union of the same influences.
On the 6th of February last, Mr. Bancroft made an attack
upon Harvard College, in the form of a Minority Report
from the Committee of Visitation, containing statements which
I could not but deem false, and insinuations relative to the con-
dition of the seminary and the labors of its Professors, which I
knew to be unjust.
In this Report, he animadverted, in terms of reprobation,
on the sectarian character of Harvard College. The course
of his remarks on this subject was forthwith followed and sup-
ported by two of the Calvinistic members who had obtained
their seats at the Board as above mentioned ; the one of them
giving the weight of his political, and the other the weight of
his religious, character to Mr. Bancroft’s views. It became
apparent, after this concurrence, that, unless openly and au-
thoritatively counteracted, Mr. Bancroft’s Minority Report
iv PRE FA C E .
would go forth to the world with the influence of this combined
sanction, and be received as truth. Hence the duty of ex-
posing what I considered false and fallacious in it seemed
to be devolved upon me, in my then official station, by a
necessity which I could not evade. The subjoined Speech
was the result.
Being at that time President of Harvard University, and
being led in the course of my argument to refer to political and
religious relations then existing in the Board of Overseers, I
was unavoidably restrained and embarrassed by my official
position. This state of things is now changed. In accord-
ance with a determination, long since made, to relinquish,
after the present academic year, my connection with Harvard
College, and my personal arrangements for the removal of
my residence to Boston having long ago been completed,
I have resigned the office of President of the College, and
now retain only temporarily the superintendence of the insti-
tution, at the special request of the Corporation.
I am now, therefore, and intend henceforth to be, a private
citizen. I have thought it proper, however, to keep back this
publication, until my resignation was accepted, and my real
position understood by the public ; in order that it should be
known by all to be made by me as a private citizen, on my
sole responsibility, independently of official duties or connec-
tions, and prepared without the suggestion, consultation, or
knowledge of any member of any body, party, or sect, literary,
political, or religious. In conformity with the liberty afforded
me by this new position in which I am placed, I have not
hesitated to give to the several topics of the subjoined Speech,
having a theological bearing, a development and directness
of application which my present relations to society justify
and enjoin.
As in the course of the subjoined remarks my sense of duty
has compelled me to speak without reserve of Calvinism and
its influences, so far as they are brought to bear upon Har-
vard College, it may possibly be supposed that they have
been dictated by hostility to that creed or its professors.
Nothing can be farther from my thought or design. Where
PRE FA C E . V
Calvinism acts in its natural sphere, and, while defending itself,
treats with Christian charity the opinions of those who differ,
both that faith and those who maintain it have my honor and
respect ; and I would say and do nothing to diminish either its
power or that of those who profess its doctrines.
It is not Calvinism, when directed to Christian ends and
using Christian means, that I deprecate. It is Calvinism when
it seeks worldly power by worldly means ; – it is Calvinism
when it embarrasses by misrepresentations a great literary insti-
tution, for the purpose of getting that institution under its con-
trol ; — it is Calvinism when it strikes hands with politics,
willing to take the chance of putting the institution into the
hands of the politician, for the sake of the chance of getting it
into its own ; — it is Calvinism thus operating and thus aiming,
that I deem it my duty to endeavour to make my fellow-
citizens understand.
It is the misfortune of Harvard College to have religion and
politics combined very intimately with the other influences of
its constitution ; and all history shows, that, when thus brought
together, and party struggles for power commence, the quality
of the religious element is always debased, and the quality of
the political never improved.
By the constitution of the College, its religious influences
were made to depend upon those, which, from time to time,
might prevail in the town of Boston and its vicinity, and in
certain specified Congregational churches there situated. In
the course of time liberal religious views predominated in these
churches and this vicinity, and about the beginning of the pres-
ent century the Calvinistic clergy of Boston and its environs
found that they had lost the control of the College.
A few of the more ambitious of this clergy were naturally
deeply affected by this deprivation of power, and immedi-
ately set themselves to persuade the Calvinists in other parts
of the Commonwealth, that it was a deadly blow aimed at
the Calvinistic faith ; and for a time succeeded in impressing
them with the apprehension that Harvard College was spe-
cially directing its influence to the undermining of that faith.
Time, observation, and acquaintance with facts have, I have
vi PRE FA C E .
reason to believe, greatly diminished this fear, among Cal-
vinists in general. Honest and unambitious Calvinists in
other parts of the Commonwealth begin to understand the
cause of this excessive zeal for their sect, put forth by a
small party of Boston Calvinists. They are satisfied, that,
under the influences which now prevail at Harvard Col-
lege, its concerns are managed with fairness in respect of
other denominations, that no efforts are made for the propa-
gation of any peculiar religious views in the College, that all
sects are treated equally well there, and that it is the intention
and endeavour to conduct the seminary exclusively as a liter-
ary institution. I have reason to believe, from the language
of some distinguished Calvinists, and from the altered conduct
of others, that their prejudices concerning the religious influ-
ences of Harvard College have become greatly softened. The
learned and faithful Professors of the Theological Institution
at Andover have shown of late years an increased confidence
in those who conduct the College, and are, I have reason to
think, satisfied that their efforts are not specially directed to
propagate their own religious faith, or to undermine that of
others. Those Professors, faithful to their own creed, do not
think, as I apprehend, that this fidelity requires them to be un-
just to the honest belief and fair conduct of others. Young men
are no longer warned, at Andover, to avoid Harvard as though
it were a seat of infidel propagandists. The learned and liberal
Principal of Phillips Academy in that place (Calvinist as I sup-
pose him to be) does not hesitate to encourage young men to
come to Harvard. His intercourse with the Professors of Har-
vard College is that of a gentleman, a scholar, and a Christian.
The same acknowledgments are due to the learned and cath-
olic Professors of the Baptist Institution at Newton, whose
zeal and fidelity for their own religious views do not prevent
them from evincing a confidence in the fairness with which
Harvard College is conducted in respect to other sects.
It is the fate of Harvard College, as I have above inti-
mated, to be cast, by the constitution of its Board of Over-
seers, into the very trough of a politico-theologico sea, which
has tossed that seminary in successive periods of its history,
PRE FA C E. vii
always to its injury, sometimes nearly to its destruction. In
consequence of party spirit in politics and party spirit in re-
ligion, sometimes in hostility, sometimes in coalition, con-
testing for power, or endeavouring to oppress political rivals or
religious opponents, the prosperity of the College has been
mischievously affected, from the days of Dunster to the pres-
ent, its literary advancement obstructed, and the peace and
happiness of its governors and instructors, at different periods,
disturbed or destroyed.
No object has been nearer to my heart, or occupied more
assiduously my endeavours, while I have been President of
Harvard College, than to give no cause for excitement to
either of the elements which are included in the constitution of
this seminary. Those endeavours have been faithfully and
earnestly seconded by every member of the Corporation, and
by all the faculties presiding over the Academic, Law, and
Divinity Schools ; and I had flattered myself they had been
not wholly without success. Perceiving, however, by the
events of the last session of the Board of Overseers, that
those elements are again in action, and by combination have
gained an increased power, I have deemed it important for the
interest of the College to have their effects on its prosperity
historically presented to its friends and the public. To this end,
I made preparation to trace the consequences of this constitu-
tion, in which the seeds of political and religious controversy
are scattered with no sparing hand, through the various stages
of the College history, and to connect the result of my inquiries
with this publication. But after proceeding some way in my
investigation, I found that the subject belonged to a work of a
higher and more permanent character than the present. Such
a work it is my intention, as soon as leisure permits, to pre-
pare and offer to the public.
Contrary to all the habits, feelings, and intentions of my
life, I have been drawn, as I have already said, by an irre-
sistible sense of duty, to make the subjoined publication,
notwithstanding it savors of theological controversy, to which
I have ever had not so much a dislike as an utter antipathy.
It is not, however, my intention to reply to any animadver-
viii PREFA C E .
sions it may produce, whether with name or anonymous, unless
some of the facts, on which the views stated in this publi-
cation are based, should be authoritatively denied. In such
case, I may possibly, however reluctantly, deem it my duty
to make some additional statements and remarks.
JOSIAH QUINCY.
CAMBRIDGE, May 15, 1845.
S P E E C H .
ON Tuesday, the 25th of February, 1845, the Board
of Overseers being assembled in the Senate-chamber,
his Excellency Governor Briggs introduced the busi-
ness of the meeting by remarking, that the report of
the minority of the Visiting Committee of the Board of
Overseers had been referred to several committees,
and he then called upon them for their respective re-
ports.
Upon this, Mr Quincy (President of Harvard Uni-
versity) rose, and asked for information concerning
the position of the subject then before the Board.
The state of things, as he understood it, was, that the
minority report, although formally parcelled out to
several committees, was yet, in fact, now on the table,
and was as much the subject of debate as though its
parts had not been thus referred.
Mr. Quincy said he made this inquiry because he
was under some embarrassment as to his course. He
wished to make some remarks on that report, and
he earnestly desired to have an opportunity to offer
them before the committees had made their sever-
al reports. What those reports would be he had no
knowledge; and he had no wish or intention to say
one word concerning them, whatever they might be.
He did wish, however, to animadvert upon the report
of the minority of the Visiting Committee, and he
l
2
foresaw, that, if he postponed his remarks until the
presentation of the reports of the committees to whom
it had been referred, his strictures would appear to the
public as being aimed at the particular report which
might then be under debate, or at the resolution
recommended by it, than which nothing would be
farther from his intention. His strong wish was to be
heard on the original minority report, and on that
only, and also before the reports of the other commit-
tees should be made. -
After some debate, liberty to speak was granted
to Mr. Quincy. Commencing with some general ex-
pressions of reluctance to address the Board of Over-
seers, Mr. Quincy proceeded thus : —
Notwithstanding my repugnance to this task, it
was impossible for me to permit the report of the
minority of the Visiting Committee (Mr. Bancroft's) to
pass this Board in silence, without feeling that I should
thereby neglect to fulfil an imperious duty, - an official
duty. I have not, however, risen for the purpose of
opposing investigation into the affairs of the College.
Far from repining, I rejoice at it. I believe that the
better the actual state of Harvard College is under-
stood, the more satisfied the public will be with it.
I complain only of the spirit in which the inquiry has
been instituted, and of the manner in which it has
been maintained. I do not deprecate the measures
taken, or any of their probable results.
My remarks will be directed solely to the report of
the minority of the Visiting Committee, which I regard
as containing assertions wholly groundless, intimations
gratuitous and unfounded, and schemes of improve-
ment impracticable and unjust.
3
The minority report begins with declaring its utter
dissent to the raising of the qualifications for admis-
sion to Harvard College, which it considers as a
scheme to exclude candidates from country schools and
open the seminary somewhat exclusively to those from
Boston schools. At first I was at a loss to imagine
where the author of this report got the notion that
any such project was contemplated; but I now find
it was from the report of the chairman of the Visit-
ing Committee. Where this gentleman obtained
it I know not. I am certain it was not from any
member of the Faculty or of the Corporation, for they
have no such intention. I do not mean, that, when-
ever the state of the preparatory schools will permit,
and the Overseers shall deliberately consent, the Cor-
poration and Faculty would not be willing, nay,
very desirous, to raise Harvard College somewhat
nearer to the standard of the European Universi-
ties. But they have now no such plan. No, Sir.
The Faculty have too much difficulty and hard work
to Squeeze into College, at the present standard, some
of the candidates who now offer. They have no de-
sire to increase their difficulties in that direction.
The President in his annual report had stated, that,
“in point of disposition to good order, gentlemanly de-
meanour, and assiduity in study, the members of the in-
stitution were, it is believed, never more exemplary;
leaving, generally speaking, little more, in either respect,
to be hoped, or even to be wished.” Here was a
statement made by the President officially and on his
own responsibility. It was either true or false; and
it was the duty of the Visiting Committee either to
deny it or to let it alone, and suffer the community to
believe it or disbelieve it, according as they had or
4
had not confidence in the statement of the President.
What does the author of the minority report? He
does neither the one thing nor the other; but in
effect says, “Though the President has made this
statement, I as a member of the Visiting Committee am
not prepared to confirm it.” Well, are you pre-
pared to deny it'ſ That is the question. If he was
not prepared to deny it, why say any thing about
it'ſ Why use a form of expression which carries the
force of a secret disbelief, which he is willing to
intimate, but dares not assert? Why use a form of
expression which is pregnant with an insinuation ? I
should have honored him, if he had come out manfully
with a direct contradiction; but as he has used such
a noncommittal insinuation, my feelings are just the
I'êWeI’Se.
In preparing his annual report, particularly the
short, general statement with which it is introduced,
the President is always deeply sensible that he acts
under great responsibility; and never admits any thing,
in the nature of assertion, which he does not consider
himself perfectly able and ready to maintain, in case
scrutiny should be instituted.
The present year, when that duty was to be per-
formed, he examined every record of merit, every book
of discipline, and made all the inquiries necessary to
enable him to attain an exact comprehension of the
state of the College. He found, by the concurrent
testimony of the professors and tutors, and of the mem-
bers of the parietal board, that the state of the College
had been now, for eighteen months, highly satisfac-
tory; that few or none of those annoyances had
occurred to which the officers of all Colleges are sub-
ject, no indications of personal or general discontent,
5
no noisy assemblages of an exceptionable character;
that the prevailing disposition shown by the young
men had been orderly, their behaviour towards the
tutors and parietal officers gentlemanly. During the
sixteen years, in which I have been President of the
seminary, I had never been able to present Harvard
College in a state, as I thought, more gratifying and
unexceptionable; and I made a draft of the introduc-
tory report in conformity with that opinion. Accor-
ding to my custom, I read it to the whole Faculty
of the College. When the paragraph was read, which
the author of the minority report (Mr. Bancroft) has
informed the public “he was not prepared to con-
firm,” one of the Faculty said to me, “That lan-
guage is strong.” I replied, “It is so ; but is it
not true?” He answered that it was. I put the
same question to every other member of the Faculty;
and they gave me the same answer. “Then,” I re-
plied, “I will utter it. For, in my opinion, it is as
much a duty, and is as useful, to acknowledge and
be just to the virtues, good conduct, and gentleman-
ly demeanour of the young men under our care, as it
is to be severe on their follies, and to give publicity
to their delinquencies.”
Such is the history of a paragraph which the au-
thor of the minority report has told the world he is
not prepared to confirm; and which, notwithstanding
his lurking insinuation, I here repeat.
We come now to the great outcry about expen-
ses. That the expenses of the College diminish the
number of undergraduates at Harvard is almost a
universal opinion and subject of lamentation. On this
point three things seem to be taken for granted by
every body : —
6
1st. That the expenses of the College have greatly
increased of late, – and that, indeed, very recently.
2d. That they are in their nature very unreason-
able.
3d. That, if these College expenses were dimin-
ished, the number of undergraduates would be in-
creased proportionably.
Now I am not a believer in either of these opin-
ions; and although I grant that it may be proper, and
probably expedient, to reduce the College expenses,
yet I am no believer either in the necessity or in the
anticipated result; and, as I think, for very strong
I'éaSOI)S.
These “College expenses” (emphatically so called)
are strictly those charges which the College makes
for certain specified services or accommodations, and
which are incident, more or less, to all Colleges; and
are understood to cover strictly those charges which
are peculiarly and exclusively incident to life there.
They are called, indifferently, “expenses of instruc-
tion,” “expenses of tuition,” or “College expenses.”
As to the first point, that the expenses of the
College have greatly increased of late, and that very
recently, - I thought it utterly untrue, and was there-
fore greatly surprised to find the following statement
in the minority report (by Mr. Bancroft): —
“The expenses of tuition have been increased at
least fifty per cent. beyond what they formerly were,
and, for some of the classes, thirty-three and a third
per cent. beyond what they were when the under-
signed was a student.”
An assertion made so deliberately, and under cir-
cumstances of great responsibility, I began to think
must have some color for it, notwithstanding my pre-
7
vious opinion to the contrary. I thought it, how-
ever, worth the trouble to inquire into the accuracy
of it, and directed the Steward of the College
to prepare a table of the charges at Harvard Col-
lege to Mr. Bancroft (exclusive of board, text-books,
and fuel), for the four Academic years 1813 – 14 to
1816 – 17; also a table of the actual charges to a
student for the four Academic years 1840 – 41 to 1843
– 44. The following is the result: —
Mr. Bancroft's College charges, strictly so
called, amounted, on an average, for the four
years 1813–14 to 1816 – 17, to . tº § 95.88
The average of College charges in the
College bills for the four years 1840 – 41 to
1843 – 44 was . Ç Q tº e tº 93.16
Difference tº e o tº e . 2.72
Making the expenses of Harvard College at the pres-
ent day just two dollars and seventy-two cents less
per annum than the expenses at the time Mr. Bancroft
was in College.”
There is, however, an element in Mr. Bancroft’s
quarter-bills, denominated fines and assessments, which
now never enters into our quarter-bills, amounting in
his four years to $3.24. This, being deducted, would
reduce the charges in his College bills to $92.64,
and consequently leaves the actual expense at the
present day just fifty-two cents more than it was dur-
ing the time Mr. Bancroft was at College. The for-
mer is probably the true principle of difference.
Here Mr. Bancroft called Mr. Quincy to order. He
* See Appendix, A.
8
said that the President had put into his hands the
documents on which he was commenting, and he had
called the President to order because he was deceiving
and misleading the Board; that the documents of the
President supported entirely the assertion in his (Mr.
Bancroft's) report. “I there stated,” said he, “that
the expenses for tuition were fifty per cent., or thirty
three and a third per cent, higher now in College than
they were when I was there; and the documents pro-
duced show that the ‘instruction fee when I was in
College was either forty-four or fifty-sia, dollars a
year, and the present College bills show that the fee
for instruction is seventy-five dollars a year; and that
is thirty-three and a third or fifty per cent. higher than
it was in my time.”
Mr. Quincy, in reply:- If that is the ground the
gentleman is about to assume, he is welcome to all
the converts he can make to his new position. His
present ground is a mere quibble. His language was,
“The eaſpenses of tuition have been increased at least
fifty per cent. beyond what they were formerly, and,
for some of the classes, thirty-three and a third per
cent. beyond what they were when the undersigned
was a student.” The term “expenses of tuition ” is
a form of expression equivalent to the term “College
expenses.” It includes the instruction fee, and, in ad-
dition to it, all the other peculiar charges of College
life. If used, then, only as equivalent to “instruction
fee,” it was used in an equivocal sense, and was thus,
whether intentionally or not, calculated to deceive the
public, who certainly have understood it as convey-
ing the idea that the cost of a College education has
increased since the author of the minority report was
9
in College. Now, if, while the instruction fee has
been increased, the other charges have been dimin-
ished in proportion to that increase, the cost of educa-
tion at Harvard would remain the same as formerly.
This is in fact the case. For the documents adduced
show that the cost of College education, instead of
being higher, is about the same as in Mr. Bancroft’s
day. Besides, he had no means of comparing the
“instruction fee” of his day with that of the present
day; because it so happens, that, in the College bills
of the present day, that charge is combined with other
items, – a bad practice, I admit, and I hope it will
be altered, - and no man can tell, unless by guess,
what the instruction fee exactly is at Harvard Col-
lege. I therefore hold the gentleman to the meaning
which he certainly conveyed by the term “expenses
of tuition, " — namely, that all the College earpenses,
strictly so called, are increased, at the present day,
beyond what they were when he was in College.
I have already shown that these expenses, so far
from being increased fifty per cent., are in fact $2.72
less per annum in our day, if you include all the
charges in the quarter-bills in Mr. Bancroft’s time;
and that, if you exclude certain charges, which were
made then, and are not made now, the only increase
is 52 cents per annum, instead of fifty per cent.
Not content, however, with this result, I deemed
it proper, and thought that perhaps it might be more
satisfactory, to compare the aggregate of all the charges
in the term-bills when Mr. Bancroft was in College
with those at the present day. To this end, I di-
rected the footings of Mr. Bancroft’s quarter-bills,
during the four years 1813 – 14 to 1816 – 17, to be
stated in the form of a table ; but as Mr. Ban-
2
10
croft was a clergyman’s son, and was probably, and
properly, economical in his habits, I had a similar ta-
ble prepared from the quarter-bills of one of his
classmates who might have felt himself less restricted
in his expenditures. I also directed that the footings
of the quarter-bills of some student who had gradu-
ated in 1844 should be presented in the same form,
taking special care to select some one who had roomed
and boarded in commons every term of his College
life, and to whom had been charged instruction, rent,
special repairs, books, fuel, board, every item which
makes part of what constitutes the entire expense of a
College education at the present day. Well, Sir, it
has been done, and here is the result.
The aggregate of Mr. Bancroft’s quarter-bills, dur-
ing the four years he was in College, amounted to
$ 815.39.” The aggregate of the College quarter-
bills of a student, selected as I have stated, during
the last four Academic years, was $783.18; and the
difference was an excess of expense, amounting to
§ 32.21, in Mr. Bancroft’s bills, beyond that of the
present day. The other comparison was still more
decisive. The individual selected was Mr. Caleb
Cushing. The aggregate of his bills was $ 1047.11,
showing in this case an excess in the College ex-
penses of $263.93 over those of the present day.
I think I have proved, not only that the “College
expenses, ’’ “tuition expenses, ’’ or “expenses of in-
struction, * strictly so called, are materially the same,
but that, notwithstanding the difference of the times,
the entire aggregate of the expenses at Harvard is,
in fact, less, instead of being greater, at the present
* See Appendix, B.
1 1
day, than at the period when Mr. Bancroft was in
College. What becomes, then, of those pathetic lamen-
tations for the desertion of Harvard College, and of
those piteous tears shed by Mr. Bancroft over “eight
counties” of this Commonwealth, that are deprived
of the privilege of sending their sons to Harvard Col-
lege in consequence of the vast increase of College
expenses since Mr. Bancroft’s time?
But why is Harvard College deserted ? I deny the
fact. Harvard College is not deserted. It has at this
day more undergraduates than at any previous period
of its existence, — one period only excepted, when,
owing to the state of the times, and the distribution of a
large amount of beneficiary money, under the express
authority of the legislature, an uncommonly large num-
ber were matriculated. “But, ” the reply is, “the Col-
lege is comparatively deserted, because it does not in-
crease as other Colleges do. Look at Yale, which has
394 undergraduates, while Harvard has only 254. See
also Amherst, Brown, Williams, Dartmouth, – all fast
advancing towards the numbers of Harvard.” “Why,”
exclaims Mr. Bancroft, “are there 104 undergraduates
from Boston and its suburbs, and only 80 from all the
rest of the Commonwealth'ſ Why do eight counties of
this Commonwealth send more Senators to the Board
of Overseers, than their constituents send sons to Har-
vard College 7"
I answer, — extent of territory, number of inhabit-
ants, number of Senators, neither one nor all of these
are proper elements of comparison on this subject.
The question is one of proportion of demand and
supply. How many inhabitants of Massachusetts wish
a high degree of education for their sons 7 and of these
how many are members of Harvard College
12
In the five Colleges which from their position and
character are entitled to be regarded as competitors
of Harvard, – namely, Yale, Brown, Dartmouth,
Williams, and Amherst, — there are 271 undergradu-
ates from Massachusetts; namely, 45 in Yale, 44 in
Brown, 33 in Dartmouth, 60 in Williams, and 89 in
Amherst. The average number of undergraduates
from Massachusetts in these Colleges is 54 and a frac-
tion. Harvard has 184, − that is, more than twice as
many as Amherst, more than three times the number
in Williams, more than four times that in Yale or
Brown, five or six times as many as Dartmouth, and
more than two thirds as many as all these united.
Considering all the circumstances which operate upon
the minds of parents in selecting Colleges for their
sons, I think Harvard has its full proportion, and its
friends have no cause for complaint or distress.
But “why do so many citizens of Massachusetts
send their sons elsewhere 7 °
I answer, there are four strong, efficient, and natu-
ral reasons; and not “College expenses,” or “tuition
expenses,” technically so called. 1. Local prefer-
ences. 2. Personal preferences. 3. Religious prefer-
ences. 4. Those incidental temptations to expense,
which are supposed to be greater at Harvard than in
other Colleges.
Every one of these causes operates in favor of each
of the other Colleges.
Parents love to have their children near home. Hence
the inhabitants of those towns in Massachusetts near
Providence send their sons to Brown. The same is
the case with every other College. It is this prefer-
ence which sends so many of the sons of Boston and
its vicinity to Harvard College; and this with many
13
parents is quite as strong as their desire to have the
advantage of a very high education. Then there are
personal preferences, which operate strongly in favor of
Brown and Yale. The parents themselves graduated
at the one or the other, and men love to have their
sons taught where they themselves were educated.
Then there are religious preferences. Almost every
religious sect also dreads, or affects to dread, what is
called Unitarianism, and proclaims to the world that it
is the great endeavour at Cambridge to propagate the
tenets of that sect; a charge, however, altogether false
and unfounded. When to these general reasons is
added a common opinion that the style of living, of
fitting up rooms, and of dress, is somewhat more
expensive than at other Colleges, we have enough
reasons to account for the proportion of young men
who go elsewhere, and to justify the opinion that it
is not College expenses which produce this result.
From my own experience, and it has been consider-
able, I do not believe that a single individual was
ever deterred from coming to Harvard on account of
College earpenses, technically so called, who had taken
pains to inform himself what these eapenses were, and
what were those at other Colleges.
The average difference in the cost of an education
at Harvard College and at either of the other Colleges
mentioned is about $ 40. Now every person, who
takes pains to inquire, will find that at almost every
other College there are charges, for some item or
other, not included in the published statement, but
always in the bill; these, in many Colleges, are some-
what high, and parents have complained, as it re-
spects one of them, rather severely. Besides, there
exists in connection with Harvard College, in addition
14
to the usual beneficiary aid of from $30 to $ 50
annually to needy and meritorious students, another
fund, established by a number of friends of the Col-
lege, from which any worthy student may obtain § 40
or $ 50 annually, on loan, without interest during the
time the student is in College ; and which is enough to
cover the whole of this forty-dollar difference. Now,
can any man believe, that, with a knowledge of these
facts, – and any one who inquires is informed of them,
—there ever was an individual deterred from send-
ing his son to Harvard by the mere College ex-
penses? He might be deterred, through considering,
or being made to believe, that the temptations to idle-
ness or vice are greater in the vicinity of a city than
in the country, - he might be deterred by the idea
that the temptations to expense, from style or associa-
tion, are greater at Harvard than at other Colleges;
but that what are termed “tuition expenses,” or “Col-
lege expenses,” ever solely deterred any man from
sending his son to Harvard College, who had ac-
quainted himself with the subject, I do not believe.
In my opinion, it never was the case.
Again, as respects the real necessity for a reduc-
tion of the expenses. The total amount of “College
expenses,” or “tuition expenses,” however called,
meaning the expenses incident to College life, is, as I
have shown, less than $94. Of the 254 under-
graduates in Harvard College, about 30 or 40 are
beneficiaries, for whose support there already exists
a sufficiently liberal provision, as I have just now
intimated, and shall presently show more fully. Next,
there are about 60 or 70 who would like to have
the expenses reduced the proposed 30 or 40 dol-
lars. There then remain about 150, whose parents do
15
not desire a reduction; who will not thank you for it;
who think the expenses of the College little enough ;
and who are of opinion, that if they can get their sons
through such a seminary as Harvard College, with all
its noble libraries, its numerous branches of study, and
desirable facilities for education, by paying $90 or
§ 100, per annum, “College expenses,” strictly so
called (which is cheaper than Boston parents can get
a girl of fifteen educated for a year at one of the pri-
vate schools in that city), the charge is sufficiently low;
they are satisfied. Now I never could see the wis-
dom of reducing expenses to the Sons of such pa-
rents, who do not ask it, and would not thank you
for it. And I say without hesitation, that they never
constitute less than three fifths of every College class.
As respects the beneficiaries, – every undergrad-
uate, who can plead need and merit, can be sure
of receiving from $30 to $ 50, − say an average
of $ 40, − annually, from the College beneficiary fund,
— and also of receiving a like sum from a private fund
in the hands of trustees, on loan, without interest so
long as he continues an undergraduate, on a note
taken from himself, though under age, and without
the guaranty of his father, — the trustees relying upon
the principle of honor, inherent, as they hope and
believe, in every one who graduates at Harvard Col-
lege, that he will repay the same, with the interest
which may accrue after the time he graduates, as
soon as the income of his profession or industry shall
permit. In this hope they have no experience to teach
them that they are likely to be generally disappointed.
It appears, then, that every student, who is willing
to be considered a beneficiary, and in the opinion
of the Faculty is entitled to receive aid, may reason-
16
ably calculate upon obtaining $80 — on the terms I
have stated—towards paying $94, which is the whole
amount of “College expenses,” technically so called,
leaving just $ 14 to be paid by the parent; — an
amount certainly not to be regarded by any one as
extravagant, considering the many advantages a stu-
dent is permitted to enjoy at Harvard College.
Besides the rich, who are indifferent to the expense,
and the needy, who are anxious about it, there is a
third class, who are so well off in point of property as
not to be willing that their sons should be regarded as
beneficiaries, and yet not in sufficiently easy circum-
stances to be able to meet as readily as they could wish
all the College expenses. Now to this class the loan
fund, without interest while the applicant remains an
undergraduate, is always open ; and from it any under-
graduate, who possesses the qualifications of scholar-
ship and good conduct, may calculate upon receiving
at least $40, − a sum equal to the average difference
of the “College expenses” at Harvard College, and
those of other similar institutions; leaving only about
§ 50 out of $94 to be provided for by the parent; —
an amount of expense not very oppressive even to
this class of parents; particularly as they have the
power of taking advantage of the College benefici-
ary fund, if they choose to apply for it.
I have here been speaking exclusively of the “Col-
lege expenses,” technically so called. All other
expenses are subject to the control of each student.
Such are board, fuel, light, text-books. They can be
obtained nearly, if not quite, as cheap at Harvard as
elsewhere, — and as to cheap living, by joining in
clubs, the students, if so disposed, can live as econom-
ically at Harvard as anywhere. One student assured
17
me that it cost him only one dollar a week for board;
another, that he lived for fifty cents a week.
As to reducing College expenses for the benefit of
the rich, or those who are satisfied with the present
state of them, I see in the project neither wisdom
nor charity. Meritorious students may always calcu-
late upon receiving from the beneficiary fund and the
loan fund an amount nearly equal to these “College
expenses.” To have the power of distributing a some-
what larger amount than at present to undergraduates
of this class might be desirable. And in respect of
that intermediate class who do not require beneficiary
aid, a larger loan fund than is at present possessed is
undoubtedly much to be wished, so as to enable the
trustees to bestow a sum more nearly approximating
the “College expenses,” technically so called, than they
can at present. An increased loan fund, and a some-
what larger beneficiary fund, are, in my judgment,
all that is wanted. Experience has shown, that the
policy of supplying students with loans, without in-
terest during their Collegiate life, on no other secu-
rity than their own notes, is the form of aid most
satisfactory to parents, – and the young men them-
selves always express great gratification, also, at the
opportunity of thus relieving their parents from re-
sponsibility and a portion of the expense of their
education, by thus assuming it to themselves. Often
the first fruits of professional success are devoted by
them to restoring to the loan fund the amount they
have received from it, with interest from the time of
taking their degree; and they feel a just pride in thus
contributing to enlarge a fund from which they have
derived a benefit which they readily acknowledge.
I am not one of those who desire to see all the youth
3
18
of the Commonwealth concentrated at Harvard for an
education. I look upon Amherst and Williams with
no envious or jealous eye. Both of them cultivate
and support, in their respective vicinities, a high and
sound standard of College education. Instead of
adopting a policy which should deprive them of their
proportion of students, in order to give Harvard a
great enlargement, I think they both deserve patron-
age; and when that noble merchant (Amos Law-
rence), who is at once a blessing to the city in which
he resides and an honor to our common nature, gave,
as he lately did, ten thousand dollars for the pur-
pose of raising Williams College from its ashes, I felt
scarcely less gratification than if it had been given to
Harvard College. If we could draw off all the students
both from Williams and Amherst to-morrow, I think
it would scarcely be more injurious to these institutions
than to the Commonwealth. And as to Harvard, I know
not what it would do with the resulting addition to its
numbers, considering the great enlargement of its Law
and Divinity Schools. It appears to me, the wisest and
the only very desirable policy, on the whole matter, is
to insure funds adequate to give all the reasonable as-
sistance to every class which requires aid. As to
those classes which do not require aid, and do not
thank you for giving it, the true policy is to leave ex-
penses as they are.
But the cry everywhere is, “Numbers, – Num-
bers.” “These,” every one exclaims, “are the evi-
dence and element of success.” All this is very natu-
ral in a republic. Under such a form of govern-
ment, power and superiority are reckoned by the head.
No account is taken of the nature of those heads, or
of their material.
19
But the success of a literary institution is to be tested
by a very different measure from “numbers.” These,
to say the least, are very uncertain criteria of suc-
cess, and for this plain reason: because there are so
many causes leading to the selection of a literary insti-
tution, and for thronging to it, apart from its fulfilment
of its duties in a high degree. The sole criterion of
success in relation to such an institution is the quality
of the scholars it sends forth into the world. Is it faith-
ful to its trust? Are all admitted equally to its privi-
leges 2 Does it reject no one who is diligent and
virtuous '' -
Numbers in a literary institution are by no means
an unqualified blessing. In this world good and evil
are mixed, or placed side by side. Compensation
is the law of Providence. Numbers bring not merely
honors, reputation, and equivalent income to a literary
institution, but something else. They bring increased
care, anxiety, labor in instruction and supervision,
greater danger of noisy assemblages, more materials for
the engendering of idle, dissipated, rude, and ill-regulat-
ed habits and manners. Numbers bring also increased
expenses, require necessarily more instructors, cause
more difficulty in arranging hours for study, more mi-
nute division of the labors of instructors, and a less
proportion of direct instruction to each individual. All
these results are unavoidable.
And yet the author of the minority report, in his
desire to obtain “numbers,” seriously intimates that
the present corps of instructors in Harvard College
may be reduced ; an intimation which would seem to
imply that the number of instructors now in Har-
vard is unnecessarily great in proportion to its number
of students.
20
In the course of the remarks growing out of the mi-
nority report, its author referred to Yale and its num-
bers in comparison with Harvard. From the example
of Yale, then, let us see if there be any such great
excess of instructors in Harvard beyond what its num-
ber of students require. Setting aside, in respect of
both institutions, the instructors in the modern lan-
guages, and also the professors of the Law, Medical,
and Divinity Schools, except so far as they take part
in the instruction of undergraduates, there are em-
ployed in Yale, in the offices of instruction, by hearing
recitations, or lecturing in the following branches,
namely, natural religion, the evidences of Christianity,
natural, moral, and intellectual philosophy, constitu-
tional law, rhetoric, logic, history, anatomy, elocution,
and chemistry, 12 professors, including the President
of the College, 7 tutors, and 3 called either lecturers,
assistant lecturers, or instructors, – constituting a body
of 22 instructors or lecturers for 394 students. In
Harvard, for teaching the same branches, there are
employed in like modes of instruction 10 professors
and 3 tutors, – a body of 13 instructors for 254 stu-
dents.” In Yale 18, in Harvard 19%, undergradu-
ates to an instructor.
In Yale, they employ in instruction in the Latin and
Greek 3 professors and 5 tutors. In Harvard, they em-
ploy only 2 professors and 2 tutors in teaching these
languages, and that during the four years of the Col-
lege course; while in Yale these branches are taught
but for three years. In mathematics, there are em-
ployed at Yale one professor and one tutor, and in natu-
ral philosophy, the same number; while at Harvard only
one professor is employed in teaching each branch.
* See Appendix, C.
2I
In what I have said I have not had the most dis-
tant intention of instituting a comparison between Har-
vard and Yale, for the purpose of intimating a prefer-
ence for one or the other. They are both high,
honorable, and well conducted institutions. Between
their respective officers there is a perfect harmony
and friendly intercourse; nothing either of jealousy or
envy. Both perform their respective duties to the
public, according to their means and opportunities,
faithfully and earnestly. Nor is it intended to sug-
gest, that in Yale there are too many instructors in
proportion to the students, or that they do less work
than those at Harvard, or that there is any superiority
in the one College over the other. Whatever has been
here introduced in the nature of a comparison is intend-
ed to illustrate the position, that, if the number of
students in a literary institution increase, the number
of instructors, and of course expenses, increase also:
and to show that there is nothing in the example of
Yale to justify the suggestion, that the number of in-
structors in Harvard is unreasonably great in propor-
tion to its number of undergraduates.
On this subject of numbers, there are, as has been
stated, 394 undergraduates in Yale, being 140 more
than in Harvard. Of those in Yale, 201 come from
the Middle, Southern, and Western States. The
young men from those quarters of the Union now in
Harvard are, in general, as worthy and well dis-
posed as any members of the seminary. Some of
them are among our highest scholars, and among
the most valued for their example and influence, and
bid fair to be an honor to the College and to be
distinguished in after life. But young men from those
quarters of the Union are often educated in a manner
22
at variance with the customs and habits of New
England. Placed at a distance from parental influence,
too often supplied with unlimited command of funds
through a mistaken confidence of their friends or rela-
tives, they are exposed to manifold temptations, which,
to some temperaments, are wholly irresistible, and in
former times they have accordingly proved very
troublesome inmates of College. In a few portions of
the Union, a dagger or a bowie-knife is said to be
deemed an indispensable appendage of a gentleman;
and young men who carry such deadly weapons about
them are apt to use them on very slight occasions.
Hitherto the annals of Harvard have not been sullied
by the murder of a professor or tutor. Should, how-
ever, such an event ever occur here, I earnestly hope
that the laws of Massachusetts may be so framed,
adjudged, and executed, that the offender shall not
escape through the payment of money, but shall incur
the full penalty affixed by the laws of the land to
murder and manslaughter; and the lives of professors
and tutors enjoy the same protection as those of other
members of the community.
As to the insinuation, that the professors at Harvard
could do more in the way of instruction than they now
do, and their places still be “the most agreeable, most
desirable, and least onerous in the country”; I sup-
pose they could, at least some of them. And if you
will give them more instruction to do, and time to
do it in, they are ready, and would thank you. But
for this time is necessary as well as inclination. There
are in Harvard 254 undergraduates, distributed into
classes, divisions, sections; from seven to ten recitations
almost daily, in different branches, every undergradu-
ate being made as far as possible to recite three hours
23
daily; six or eight instructors, each deeply interested
in securing to himself his proper proportion of the time,
and all anxious so to arrange the hours, that, while the
students shall not be harassed by exercises following
immediately one upon another, they themselves may be
enabled, at the same time, to fulfil the duty they owe
to their respective branches, in the most perfect and
thorough manner. Now this division and arrangement
of time is not an easy matter. On the contrary, it is
a most difficult one; and when it is making, it is al-
ways a source of a good deal of discussion, carried
on at times with some degree of feeling and even
warmth. Every year I witness very animated de-
bates on these topics, among the instructors; each one
contending for his share — his full share — of time for
instruction in his branch. The great contest is, who
shall get the best position and the greatest number
of hours for his work, - not who shall have the few-
est. I repeat, then, that, if you will find the time
for any instructor, I will guaranty that he will fully
employ it in the work appropriate to his branch. But
if you mean to turn honorable and learned professors
over to other work, in any other branch than that
to which they have devoted their lives, and to teach
which they were invited to Harvard College; if you
mean to make a mathematical professor teach Greek,
or a Greek professor mathematics, – I think there will
be some objections; and, I apprehend, not without
reasons, to say the least, very plausible.
The intimations plainly given in the minority re-
port, that professors in Harvard College do less than
they might, have more tutors in their respective branch-
es than they need, and that, in the way the author
of this report has pointed out, they could easily be
24
made to do more, are unjust and gratuitous. Had
such intimations fallen from a stranger to the institu-
tion, they would have been comparatively of little im-
portance. A stranger, unacquainted with the difficulty
of So arranging the hours of recitation as to give to
each branch its due proportion of time and attention,
might easily be led into such errors. But the author
of the minority report was educated at Harvard Col-
lege, and has held the office of tutor in it, and must
know that an attempt to devolve upon professors the
labors now required of tutors, in addition to their own
proper duties, would be wholly incompatible with the
general arrangement of the recitation hours of the
several classes so that the duties of the respective in-
structors may not interfere, and with that thorough-
ness of teaching required by the character of the Col-
lege and the high standard of scholarship at which it
aims. He knows those professors, and knows also,
that, if such plan were practicable, they would not
wait for any third person to suggest it.
I am entitled to speak distinctly of the services of
these gentlemen by a long official acquaintance with
their virtues, and with their readiness to labor, each
in his vocation. I know their duties, and the earnest-
ness, fidelity, and singleness of heart, with which they
execute those duties; and I here say, without qualifica-
tion, that, in my judgment, a more able, faithful, ear-
nest, and assiduous body of instructors, or more willing
to spend and be spent in its service, Harvard College
never had. And as to their offices being, as the
author of the minority report insinuates, “the least
onerous in the country,” the idea is altogether decep-
tive. The labors and responsibilities of these gentle-
men are not to be estimated, and are very insufficient-
25
ly indicated, by the hours of exercises stated in the
tabular views, which are prepared chiefly for the use
of the students, and with no design to represent the
amount of the duties and services of the instructors.
The hours of recitation are, indeed, in themselves
“onerous” enough. The intensity of mental applica-
tion and the wear of feeling consequent upon the labor
of instructing from at least one hundred to one hun-
dred and twenty young men, belonging to different
classes, for three or four successive hours, on three
or four successive days in a week, is no light work.
Then there are every week as many written exer-
cises to be examined and criticized, in the several
branches, as there are members of the class; the value
of each recitation and exercise to be estimated, a rec-
ord to be kept of those estimates and of any miscon-
duct, and a return made of them to the Faculty; les-
Sons omitted by students, who have been sick, or ab-
sent on leave, to be heard, and in like manner esti-
mated and returned ; every moment a liability to be
called on by the President, in case of any emergen-
cy; one night every week, whether called or not, a
meeting to consider the discipline of the College and
to examine into its state; and these meetings, when
disorders arise in the seminary, sometimes repeated
three or four evenings in a week, accompanied with
painful and difficult investigations, resulting often in
decisions in relation to which the line of duty is not
very clear, and terminating sometimes in the general
discontent of the students, and not unfrequently in
complaints or remonstrances from parents and friends
of the individuals subjected to punishment.
When all these particulars are considered, I appre-
hend it will be found that the duties of the instruc-
4
26
tors are in their nature not quite so wholly de-
lectable and desirable, as the author of the minority
report, in his zeal to make their offices appear to the
public little onerous, has seen fit to represent. Of all
methods, that of taking the tabular views of the hours
of recitation as the measure of the official labors of
the instructors is the most unjust and deceptive.
A lawyer spends an hour in arguing a cause. Are
his labor and rate of compensation to be estimated
by the value of that hour? The laborious days and
nights which he has spent in preparing himself to
make that argument, — are these to be made no ac-
count of? The case is the same with these profes-
sors. They have not only labored hard, in time past,
to acquire the knowledge they have attained, but, if
they are true to the College and themselves, they
must labor daily and diligently to preserve and en-
large the knowledge they have acquired. The hu-
man mind, in the present age, is striving for advance-
ment with a zeal and activity never before witnessed.
New books, new views, new projects are daily put
forth in relation to every art and every science. A
professor in a University is bound, and has hard
work of it, to keep up with the age in this respect.
Then he occupies a somewhat conspicuous place in
the literary world. He is bound, if possible, to do
justice to his position; to throw his contribution into
the general stock everywhere forming by men of sci-
ence. Every height, every distinction he attains, is an
honor acquired for the University with which he is
connected. Its glory is, in a greater or less degree,
identified with his success.
It appears by the minority report, that this grand
scheme of improvement does not stop at the dis-
27
missing of tutors and giving more work to professors.
It casts an eye also upon the President, and it con-
templates making him an instructor. Certainly, Sir,
it is but reasonable, while every other officer is about
being made to contribute to this eleēmosynary project,
that he also should be called upon for his subscrip-
tion. Accordingly, Sir, I have had many questions
put to me of late concerning the President’s office and
my management of it; some of them very curious
and very particular. And I dare say, as is usual on
occasions of this kind, many things are in circulation
which never reach my ears. Among other things, I
have heard that the President does not attend morn-
ing prayers, or, at least, very seldom attends.
Here Mr. Bancroft interrupted Mr. Quincy, ex-
claiming, — “I never said so.”
Mr. Quincy, in reply: — And I never said he did.
But I am misinformed, if it has not been said.
However, I should as little have thought of saying
any thing upon that subject, as I should have of
speaking here on the most common and every-day
action of life, had not a question of the same general
import been put to me, in writing, by a friend, -
one of the committee to whom was referred the
minority report. Consequently, I conclude the sub-
ject has been under inquiry by that committee in
some form. My answer was in writing, but I choose
to repeat it here. For the manner, in every par-
ticular, in which I have conducted in that office, I
hold myself responsible to the public, not only in
this place, but everywhere and at all times. My an-
swer was, -“I have been President of Harvard Col-
28
lege nearly sixteen years, and I have never been
absent once from morning prayers during the whole
period, - three mornings only excepted, when I was
summoned, as a witness, by the Court at Concord,
on business of the College.”
Another subject of inquiry was, “Whether it was
the practice of the President to instruct.” To this
I deemed it my duty to reply at large. I shall, there-
fore, here only state generally my view of the interest
of the College in that respect. My letter is in the
hands of the committee on the minority report, and I
suppose will, in some form, come before the public.
Here some conversation occurred between Mr.
Bancroft and Mr. Gray; after which, Mr. Gray rose
and stated that he had not laid that letter before the
committee, because he had written to the President, not
under the authority of the committee, but for his own
personal information, and that he did not consider the
President’s answer to have been made under cir-
cumstances authorizing him to give it publicity; but
that he would now return it to the President and
place it at his disposal. Mr. Gray accordingly de-
livered the letter to Mr. Quincy.
Mr. Quincy then proceeded : — The course of the
gentleman (Hon. John C. Gray), in this instance, is in
conformity with that high delicacy and propriety
which characterizes his whole conduct in life. But
although I knew that his letter to me was not written
under the authority of the committee, yet my answer
to him was made without any injunction or desire
of secrecy. On the contrary, I contemplated pub-
licity at the time, as appears from the fact that the
29
letter contains a postscript, requesting that “if printed
I might have the correction of the press.”
The contents of that letter I have no wish to con-
ceal. I deem the views it presents very important,
and I shall take a proper opportunity to place them
before the public. From their nature, they necessarily
include many details; on which, of course, it is not
my intention to enter on this occasion. I shall merely
give a brief outline of those views.
The wisdom of past times provided that the office
of President in Harvard University should not be
connected with instruction; and I have no reason to
believe that any President has acted as an instruc-
tor for more than a century ; certainly, since the
American Revolution. It is said that Dr. Kirkland
once attempted it. If he did, it was for a very short
time, and was wholly confined, as I am told, to a few
extemporaneous lectures to one of the classes in the
Divinity School.
The President’s office embraces the highest class
of duties. In its nature, it consists in the superin-
tendence of all the concerns of the University, moral,
literary, economical, and fiscal. No man can read
a specification of those duties, as set forth in the
laws of the College, and for a moment believe that a
President can perform them as they ought to be per-
formed, and have time left to prepare lectures, hear
recitations, examine themes, or for other exercises ap-
propriate to the office of a College instructor.
I speak, as I wrote, wholly independently of all
personal considerations. No man could ask, or rea-
sonably expect, that, at my period of life, I should
undertake, for the first time, to fulfil the duties of an
instructor. I speak, therefore, independently, for the
30
interest of the University, and for the benefit of my
successor, who, in the course of nature cannot be far
off; probably, is very near.
The qualities necessary for an efficient general
superintendent (which has been always substantially
the nature of the office of President in Harvard Uni-
versity), and the qualities necessary to a highly gifted
instructor, are essentially different. The concentration
and abstraction of mind, which are required for dis-
tinguished success in the latter, are, generally speak-
ing, wholly incompatible with the successful perform-
ance, or even patient endurance, of the duties of the
former. This I apprehend will be made sufficiently
clear, when those duties shall be considered in their
details, in all their importance and bearings.
I do not say that the present duties of the office
of President may not be so modified and reduced as
that the same person may perform, to a sort of gener-
al satisfaction, the offices both of superintendent and
instructor. But I do say that such a combination of
functions is, in my judgment, to be deprecated, and
would probably result in a very imperfect performance
of both. The correctness of this opinion will, I think,
be made manifest on examining into the details of
the President’s office.
I now come to the consideration of the “fee for
advanced standing,” which the author of the minority
report (Mr. Bancroft) denounces as eactortion. For
myself, Sir, I should be very reluctant to give such a
hard name to a principle which has had the Sanction
and practice of this College ever since its formation,
and is, I apprehend, in a greater or less degree, that
of every other College in the United States. Such
a fee has always been demanded, as both reasonable
31
and just, in cases where the parent of the applicant
is able to pay it; and where he is not, on suitable
representation, it has always been remitted. What
the exact practice was in very ancient times I cannot
state. It is apparent, however, from the College
records of the last century, that a fee for advanced
standing was then exacted, and on suitable Occa-
sions remitted. As an evidence of this, I ask the
liberty to read a transcript from those records, rela-
tive to one of our most distinguished citizens, which
cannot fail to have an interest in itself, independent
of the particular purpose for which it is now intro-
duced.
Mr. Quincy here read a vote of the Faculty of
Harvard College, relative to the admission of John
Quincy Adams to that institution.” -
Mr. Quincy proceeded : — It is apparent from this
record, that, so long ago as 1786, an admission fee
was exacted, and on proper occasions remitted.
The principle which regulates the application or
remission of that demand will appear by a vote of the
President and Fellows of Harvard College, passed in
June, 1839; under which, every applicant for the
remission, who has brought himself within the terms
of the vote, has never failed to have it granted. †
Now this admission fee, thus boldly denounced as
“extortion,” taking into view the liberal principles
practically applied to its remission, is, in my opinion,
both just and salutary, and founded on sound rea-
sons of public policy; and, as far as the experience
of sixteen years in the government of the Univer-
* See Appendix, D. f See Appendix, E.
32
sity has enabled me to judge, is so considered by
a very great majority even of those who pay it. It
will be found upon examination, that three fourths,
if not a greater proportion, of all those from whom
this fee has been exacted have been the sons of
gentlemen of independent fortunes, dwelling in other
States; and perhaps a few of the same class, in Massa-
chusetts. From various circumstances, arising partly
from local distance, partly from natural affection, which
leads such men to desire to have their children separa-
ted from them as few years as possible, and other
causes, – not feeling any restriction on their inclina-
tions from considerations of expense, parents of this
class are apt to educate their sons at home, or at schools
in their vicinity, and then send them to College, for the
benefit of one or two, possibly three years’ instruction,
and that they may carry into life the name and reputa-
tion attached to a degree from a high seminary of
learning. Many of them cannot be made to realize the
necessity, in a literary point of view, or the advantage,
in relation to character and intellectual power, of a
thorough drilling during the four years of a College
course. Their sons often come partially fitted, even in
the branches which are the particular subjects of ex-
amination ; and though so well qualified as not to be re-
jected, yet frequently wanting in those habits and Scho-
lastic attainments which a College residence during the
entire course is adapted to impart. Now is it right —
nay, is it even just to this class of gentlemen — to en-
courage them in such mistaken practice? Is it wise,
as respects the public, to give a bounty upon a half
or three-fourths College education'ſ
The people of Massachusetts, by public patron-
age or private liberality, have founded institutions for
33
education called Colleges; all established on the
principle, that a four years’ residence is important, if
not essential, to a thorough education; and to this
the support of a body of professors and instructors,
and a large and expensive apparatus, during that whole
period, are indispensable. Gentlemen of independent
fortunes in other States contribute nothing to the Sup-
port of these establishments. Is it reasonable that the
sons of these gentlemen should have the privilege of
participating equally with citizens of Massachusetts in
the honors and advantages accruing from a degree, on
paying, as the case may be, one third, one half, or
three fourths of the amount, which every such citizen,
who avails himself of the whole College course, is
obliged to pay? I think not. Yet, even with the
exaction of the admission fee, as at present estab-
lished, this class of gentlemen are enabled to gain ad-
mission for their sons into College, at any period of the
course, exclusive of the Senior year, by paying one
half of the single item of the instruction fee which
every citizen of Massachusetts is obliged to pay for
regularly educating his son to the same standing; an
amount, in my judgment, not more than reasonable ;
particularly as, during the whole period of my presi-
dency, I have no recollection of any parent of this
class, and do not believe there ever was one, who
complained of the charge or demurred to its justice.
The light in which this charge has been held up,
for the purpose of making it appear odious, as an ex-
action of payment for instruction which has not been
received, is not the true view. It is a charge in the
nature of an indemnity to the State which has founded,
and to its citizens who for four years have assisted to
maintain, an expensive establishment, of which the
5
34
people of other States may avail themselves on equal
terms with our own people, if they will; but if, from
indifference, negligence, or any other cause, they
take advantage of only one or two of the last years
of the College course, they are required, by payment
of the admission fee, to contribute something towards
the support of an institution, which has been upheld
by others at a great expense, to the point at which
they choose to make use of it.
The injustice of this scheme of discontinuing the
admission fee may be further illustrated.
The College is established on the principle of pro-
viding a corps of professors, tutors, and instructors,
suited to a course of four years’ residence. Now, sup-
pose the discontinuance of this charge for advanced
standing should induce parents generally to adopt the
practice of delaying to enter their sons until the second
or third year; is it not plain that the establishment for
a four years’ course could not be maintained without
greatly increasing the price of tuition ? in other words,
that the College, in such case, could not afford the
same advantages of education as at present, at any
thing like the present rate of charge? Now, why
should a few favored ones, who have no claim for
eleēmosynary aid, be admitted to the privilege (if it
be a privilege) of a one, two, or three years’ course,
on terms such as could not possibly be afforded to
all ? Is it not clear that a scheme contemplating a
practice of this sort must necessarily work gross in-
justice to the community at large?
Again, – those who enter at the middle of the
course, without payment of the fee for advanced stand-
ing, must do it at the cost either of the College, or of
the students who take the full course. Should all
35
come in at the beginning of the Freshman year, and
continue through the four years, the income of the
College would obviously be greater, and the price of
tuition might consequently pro tanto be reduced. Is it
not, then, clear, that so much as the sons of wealthy
men inhabiting other States would gain by the discon-
tinuance of the admission fee, by just the same amount
must our own citizens be burdened, or the College
funds diminished'!
How incongruous, also, is it with one breath to con-
tend for a diminution of the cost of instruction, and
with the next to propose the discontinuance of a rea-
sonable fee, the direct tendency of which would be
either to curtail the College course, or to increase the
general cost of instruction |
One topic remains, and it is the last on which it
is my duty to animadvert. It is a topic I would wil-
lingly avoid; but it is necessary that it should be
treated with some thoroughness, in order to that com-
pleteness of reply to the author of the minority report,
which I engaged to attempt.
The author of that report (Mr. Bancroft), after la-
menting that so great a proportion of the students
should be from Boston and its vicinity, and a few
favored places; after intimating his deep affliction at
“the disproportion between the magnificent endow-
ments of Cambridge, and the comparatively small num-
ber who derive a benefit from them”; after sighing
over the towns of the Commonwealth, at a dis-
tance from Boston, that send their sons elsewhere
than to Harvard, which he calls “the child of the
Commonwealth”; after deprecating all party control,
political or religious, – proceeds to animadvert in terms
of reprobation on its character for sectarianism, mean-
36
ing thereby unquestionably its Unitarianism. Now
this, coming from the author of the minority report,
is very curious, and, taken in connection with what
immediately ensued, is also somewhat symptomatic.
The report, having been read by its author to the
Board of Overseers, was soon after followed up by
a formal order from a lay Calvinistic member of the
Board (Mr. Walley), having for its object the sepa-
ration of the Divinity School from the College, and
thus making this latter what he called “a State literary
institution, free from all denominational bias’’; he,
too, like the author of the minority report, being
desirous to relieve the College from all suspicion of
sectarianism. Putting these circumstances together,
I could not fail to perceive that there was a har-
mony and happy coincidence in language and action
between those political partisans with whom the author
of the minority report is associated, and those religious
partisans with whom the author of the order for up-
setting the Divinity School is associated. Now, Sir, I
should coöperate most cordially in any project of union
and brotherly love between what are usually observed
to be very antagonistic elements, did I not plainly see
that their successful concert, in the present instance,
would result, and did I not conscientiously believe
that the main design of one of the parties was that
it should result, not in getting what they call “secta-
rianism * out of the College, but in getting one species
of sectarianism out, and another species of sectarianism
in. Accordingly I deem it my duty here to speak
directly and plainly of the sectarianism of Unitarian-
ism, as it actually eacists in Harvard College, and as it
has existed there ever since I was appointed President.
In the first place, I ought to observe that the
37
Unitarianism of Harvard College is spoken of and
preached against by Calvinistic clergymen and mis-
sionaries, in the Middle, Southern, and Western States,
and even in the interior of Massachusetts, in lan-
guage very different from that in which it is spoken
of and preached against by clergymen of that faith in
Boston and its vicinity; and for this plain reason, that no
clergyman in the vicinity of Harvard College could
use such language as that often adopted elsewhere,
without being justly liable, in the opinion of every audi-
tor knowing the facts, to an epithet which no gentle-
man ought to bear, and much less a clergyman. I
have full evidence upon this point in the often repeated
declarations of young men coming from other quar-
ters of the Union, who have expressed to me their
utter astonishment at what they had heard before they
came to Harvard College, and their gratification at
what they had witnessed and experienced there, in
relation to its Unitarian designs and influences.
In those States, Harvard College is represented as
a society combined and laboring for the propagation
of Unitarianism; as an association of infidels, without
belief in the awful mystery of Christ’s incarnation,
placing no reliance on his propitiatory death, and
deriving no assurance of a future state from his glori-
ous resurrection and ascension; denying his divine
mission, not acknowledging him either as Mediator or
Redeemer, but resting all their hopes of a future life
and happiness on their own merits; “not mention-
ing Christ in their prayers,” and “openly denying
the Lord who bought them.” The funds of the
seminary are there asserted to be devoted, all its
influences directed, to making proselytes to the Uni-
tarian faith; its honors, its beneficiary donations, are
38
said to be distributed on that principle and for that
object. Parents, who are found contemplating send-
ing their sons to Harvard, are beset by the Calvin-
istic preacher or missionary in their neighbourhood,
and entreated not to jeopardize their children’s hopes,
both as respects the present and the future life, by
subjecting them to the temptations and dangers to
which an education at Harvard College would in-
evitably expose both their bodies and souls. Every
parental interest and affection is assailed to shape
the judgment and influence the will in favor of other
institutions.
Now, although these homilies partake strongly of
the nature of “pious frauds,” I am not disposed to
charge these preachers and missionaries with circu-
lating what they know to be falsehoods. They go
forth after being educated under strong prejudices.
They preach and lecture under great temptations;
to audiences who take all they say upon trust, and
who often have no means of knowing the truth in re-
spect to their assertions; and they frequently know no
better themselves. They probably preach according to
their belief, and as they deem most advantageous
for the influence of the Calvinistic sect.
There is no question that systematic calumnies like
these, circulated very openly and boldly, as I am in-
formed, in the Middle, Southern, and Western States,
have a powerful influence in turning young men from
Harvard to other Colleges; and that they are the
main cause of the diminished influx of students from
those States, and from foreign countries, into Har-
ward, and of the comparative increase of their num-
bers in other Colleges. In Yale, Brown, Dartmouth,
Williams, Amherst, and Harvard, there are four hun-
39
dred and fifty students derived from these sources; of
whom Yale has 201, the other four Colleges 146, and
Harvard only 103. That such are the effects of repre-
sentations like those above stated, assiduously made,
circulated, and believed in those States, is notorious;
and that these representations are utterly false is, in
this vicinity, equally notorious.
It is now more than sixteen years since I accepted
the office of President of Harvard College, and I here
openly and unequivocally declare, that, so far from the
influence of Harvard College being devoted to the
propagation of Unitarianism, or the labors of its teach-
ers being directed to this object, this has never, so
far as I have seen, known, or believed, been made
the chief or any special object of their thoughts or la-
bors at all. For the purpose of avoiding, as much as
possible, the communication of any peculiarities of re-
ligious opinion to the students, writings free from such
an objection by the universal consent of all classes of
Christians, such as “Paley’s Evidences,” and “Butler's
Analogy,” are selected as text-books. Episcopalian,
Baptist, Calvinist, Unitarian, and every other denomi-
nation of Christians, have ever stood before the Cor-
poration and Faculty in the same equal light, been
treated with the same deference and respect, and have
received an equal share of the College honors and
beneficiary funds. Knowing the calumnies which were
circulated on this subject at a distance from the Col-
lege, every measure to give content to the members
of other sects, and to deprive Calvinistic leaders in
Boston and its vicinity of the power of misrepresenting
the nature of the influence exerted by the College,
has been adopted. Every student of full age is per-
mitted to worship on the Sabbath with whatever sect
40
he pleases. Every student under age is permitted to
worship on the Sabbath with whatever sect his parent
or guardian pleases. So strictly has this principle been
carried into effect in relation to students under age,
that, when, as in some instances has been the case,
applications have been made by them for liberty to
worship at the College chapel, they have been syste-
matically denied, unless they produced a written re-
quest to that effect from their parent or guardian. If in
any single instance the contrary has happened, – of
which, however, I have no knowledge and no belief,
— it was the result of accident or inadvertence, and
not of any plan or design. The only exception is in
the case of special services in the chapel on the oc-
casion of the death of a student, when all who desire
to attend are permitted to do so.
It would be easy to adduce instances, every term,
of the liberal spirit exercised at Harvard in all cases
touching religious sentiment. I shall state only one,
and that of recent occurrence, illustrative of the nature
of that spirit. There are in the College four monitors,
one for each class, to note absences at Sabbath and
daily chapel-services. A small pecuniary compensation
is attached to the monitorships, which renders them
objects of desire to students whose circumstances are
straitened. At the beginning of the present Aca-
demic year, there were eight or ten applicants for
these offices. Four were selected, who were deemed
best qualified for them. Two of the young men thus
selected, on being informed of their appointment,
after expressing their thanks, observed that they did
not know how they could perform the duties of the
office on the Sabbath, as they belonged to a differ-
ent persuasion and worshipped elsewhere. They were
4]
immediately told that this should make no difference;
if they would find a classmate to take their place on
the Sabbath, whom the Faculty should approve, his
substitution would be allowed. And accordingly
they have been permitted to enjoy the advantage of
the monitorships, and at the same time the benefit of
the religious instructions which they prefer.
What I have said of the imputations of sectarian
influence, as respects the Corporation, the Faculty, or
any of the instructors, applies with equal truth, so far
as my observation extends, to the Sabbath services of
the chapel. Although those who attend these ser-
vices are for the most part sons of parents who are
either inclined to, or have no fear of the influence of,
what is called Unitarian preaching (those belonging
to other denominations in general worshipping else-
where), yet the officiating clergymen in the chapel
very seldom allude, in their discourses, to any of the
tenets peculiar to their faith, or to the opinions of those
who differ from them; and if on any occasion it oc-
curs, it is done without sharpness or bitterness, and
with no special design to make converts. During the
whole period of my presidency, I have never — with
the exception of a single half day — been absent from
the services of the College chapel. I have a right,
therefore, if any man has, to speak with confidence of
the mode in which those who preach in that chapel
conduct the Sabbath services; and the result of my
observation is this, that they scrupulously endeavour
to inculcate gospel truths in the very words of the
Sacred writings, –believing, as I suppose, that man’s
inventions can add no force to the language of in-
spiration. They avoid controversy, and select topics
adapted to make the temper meek and the life holy
. 6
42
They reason, after the example of Paul, “of righteous-
ness, temperance, and judgment to come.” They
preach of Christ as the Son of God, sent by him to
die for us and be a propitiation for our sins; — that
he was exalted by God to be for men a Prince and
Saviour, and was by him ordained judge of the quick
and the dead. And in respect of the peculiar opin-
ions from which the sect has obtained its name, they
do not indeed preach, because they cannot find in
the Scriptures, and therefore do not believe, that the
Son who was sent was the very God who sent him.
But although they cannot preach that doctrine, they
seldom refer to it, and never subject those who
do believe in it either to censure or contempt. Yet
these are the men whom Calvinistic missionaries repre-
sent as preaching “nothing but natural religion,” and
calumniate in terms which are worthy to be applied
only to deists and infidels. I owe this acknowledg-
ment to the clergymen who officiate in the College
chapel, although I do not recognize myself as of the
Unitarian sect, or of any sect *; believing that I can
find more truth, and a more heavenly gospel, in the
word of God itself, than in the teachings of any sect
man ever devised.
We now come to the grand plan of excluding
sectarianism and Unitarianism from the College, by
* Lest this should be regarded by any one as adopted to serve an occasion,
I deem it proper to show that this is not a new position which I assume. In
a letter written by the Hon. Francis C. Gray to the Hon. Levi Lincoln,
then governor of the Commonwealth of Massachusetts, in the year 1831, ex-
plaining the nature of the sectarianism of Harvard College, is the following
statement of the religious position which I then asserted and maintained : —
“The President I consider orthodox according to Hollis, and who does not
allow himself to be called either a Unitarian or a Trinitarian, or to be desig-
nated by any party name.” – See Mr. Gray's Letter. Second Edition. 1831.
p. 45.
43
separating from it the Divinity School, and also by
putting an end to the preaching on the Sabbath, in
the chapel, of the professors connected with that
School. In respect of the last part of this project, I
deem it unobjectionable; and if the laws of the Col-
lege should be so modified as to permit all undergrad-
uates to attend such public worship on the Sabbath,
as their parents or guardians may elect, either in
Cambridge, Boston, or any adjoining town, giving evi-
dence of regular attendance on such worship, as the
sons of parents residing in this vicinity now do, - I
apprehend the plan is feasible, and, by closing one
source of misrepresentation, may perhaps be useful.
But in respect of separating the Divinity School
from the College, and devesting the Corporation of the
funds which have been intrusted to their care and
management, there are not only legal difficulties, which
need not here be discussed, but others of a practical
nature, which it may be useful to consider.
Let us suppose, Sir, that all legal objections are
surmounted, that the proposed separation is effected,
and that Divinity Hall, with all its bricks, granite, and
foundations, like the chapel of “our Lady of Loretto,”
is transported through the air bodily to Pittsfield, North-
ampton, or some more distant part of the State, and
Harvard College rid of it for ever. Now let us in-
quire, What comes next 7 Is no divinity to be taught
in Harvard College 7 Is every other science to be
taught there, and the elements and history of religion
to be excluded ? O, no, it is replied; there must be
a Divinity Professor. If so, the question necessarily
arises, Of what sect shall he be? If a clergyman,
he must be of some sect; and of whatever denomina-
tion, he fixes a sectarian character on the College.
44
Well then, it is said, there shall be no Professor of
Divinity in Harvard College. Let this, also, be estab-
lished. There must be a president and professors.
Are none of these to be taken from the clergy If
you do thus select, they must be of some sect; and
here again your selection fastens sectarianism on the
College. Well then, you say, we will have no clergy-
men in any of these offices. This, I know, is the point
at which some men are driving; but it is one for which
I am not prepared, and I question whether the people
of Massachusetts are prepared for it. My objection to
the whole scheme of removing the Divinity School from
the College is, that it will, in the event, either prove
to be a deception, and only a mode of getting one
sect out of the College and another sect into it, or else
will result in establishing in the College the Girard
principle of excluding clergymen of all denominations
from all its offices of government and instruction.
It ought to be the study of every people, who have
the management of their own affairs, to control and
keep in check the influence of any one species of
sectarianism,_ to divide, and thus paralyze, its pow-
ers, and not permit one sect to obtain a predominating
influence in the state over all or a great majority of
their seminaries of education. Let the people of Mas-
sachusetts understand that the attempt now making
by leading Calvinists in Boston and its vicinity is
not merely to get Unitarianism out of Harvard Col-
lege, but to put Calvinism into possession of it; that
this has been their purpose and struggle for these
forty years past; and unless their projects be counter-
acted and defeated by the vigilance and spirit of the
community, they will ultimately be successful, though
it cost a struggle of forty years more. The alliance
45
recently, to all human appearance, entered into on the
floor of the Senate-chamber of Massachusetts is a preg-
nant evidence of their aim and tact. The predomi-
nating influence of Calvinism is stamped, in charac-
ters not to be concealed or mistaken, on at least Seven
institutions for education in New England,- Yale,
Williams, Amherst, Bowdoin, Dartmouth, Middlebury,
and Burlington. There is also another highly en-
dowed institution in Massachusetts, in which every
article of the creed of this sect is riveted down for
ever on the seminary by a subscription of faith re-
quired of the professors, to be renewed every five
years. Yet with all this power they are not content.
All this influence “availeth them nothing, so long as ”
Harvard is not also in their possession.
I know it will be said, in reply, “How unjust is
this charge Were not the Calvinists the authors
of that nobly liberal scheme by which all sects are
at this day eligible to seats at the Board of Overseers?
- Shall no credit be given to them for this pure and
elevated catholic spirit " " Certainly, Calvinists were
agents in effecting that great change in the elemen-
tal principles of selection of members of this Board.
And when the project was submitted to the Corpora-
tion for their sanction, I personally opposed its ac-
ceptance; not, however, from any illiberal or sectarian
feeling, but because I foresaw, what events have al-
ready proved, that this apparently liberal scheme would
result in constructing, out of the hopes and expecta-
tions of the members of other sects, a bridge, over
which Boston Calvinists might pass themselves into
possession of Harvard College. Does any man believe
that any one of these would give his vote and influence
to introduce an Episcopalian, a Baptist, a Methodist,
46
a Universalist, into the office of president, or of instruc-
tor in any moral, religious, or intellectual department
in Harvard College? I think not. And how has this
new principle been acted upon by these very Cal-
vinists' Since the change in the constitution of the
Board of Overseers, antecedent to the present session,
how have four out of five vacancies which have oc-
curred in this Board, one in the lay and three in the
clerical part of it, been filled? Did the Calvinists seize
the occasion to carry into speedy effect the generous
design of introducing into the Board members of
other sects '' Far from it. Three out of these four,
one layman and two clergymen, were Calvinists. The
fourth gentleman elected was a Universalist; and he
was indebted for his majority to the Unitarians. With
respect to the election of the present session I shall
say nothing; for, although a distinguished Unitarian
has been elected, and I have no doubt that some Cal-
vinists voted for him, I have no disposition, at present,
to remark upon the subject.
My argument, then, is this, – that Calvinists have at
this day, in Massachusetts, more worldly power and in-
fluence than any other sect, and probably than all other
sects put together; that they have enough colleges and
theological seminaries at their command for the safety
and permanence of religious freedom; and therefore,
whatever sect it may be deemed advisable to place in
possession of Harvard College, let it not be the Cal-
winistic.
In this connection it may be well for the members
of other sects to consider, and that, too, with some ear-
nestness and anxiety, whether, if Calvinism should be
substituted for Unitarianism in Harvard College, as is
the design. they would be likely to find more liber-
47
ality, more fair play, less bitterness, and a kinder or
more respectful construction and treatment of their pe-
culiar religious views than they experience at this day
from those who are now in possession of that institu-
tion. I ask the question without prejudice. In a sec-
tarian sense, I am not, and never was, a Unitarian.
Indeed, as I understand Unitarianism, it has no princi-
ple of sectarianism in it, — and from its very nature
cannot have.
The question, then, arises, What is meant by the term
sectarianism 2 In common speech, we understand
by this term that exclusive spirit which inculcates a
belief in certain peculiar tenets in religion, as afford-
ing either the only or the best hope of salvation. Now,
it is true, Unitarians do, in general, entertain certain
views relative to the nature and mission of our Saviour,
which are not in accordance with those held and main-
tained by the Calvinists. But did any man ever hear of
a Unitarian, who thought or taught that a belief in that,
or any other tenet of this denomination, deemed pe-
culiar, afforded the only, or would give a better, chance
for salvation? Did any man ever hear a Unitarian say
or teach that a Calvinist could not be a Christian or
that they who had adopted the Calvinistic creed, after
faithful and prayerful research of the Holy Scriptures,
were not full as likely to be accepted by the Great
Master, in the day of final retribution, as though they
had subscribed to every article of the Unitarian faith Q
I think not; although it is possible that some of that
denomination, more valorous than wise, may have been
tempted to gather up some of the spent shafts of their
adversaries, and return them into the enemy's Camp.
The foundations of Unitarianism, as I have been
taught and have surveyed them, are as broad as the
48
New Testament, which it receives as the inspiration of
the Divine Mind, neither desiring to add any thing to it,
nor daring to subtract any thing from it. All that is mys-
terious, miraculous, and beyond the comprehension of
the human intellect, Unitarians receive, not to doubtful
disputations, but reverently and prayerfully, as an article
of faith. Their belief in the birth, death, resurrection,
and ascension of our Saviour is as full and perfect as
that of any other sect; they rest their hopes of an-
other life on the cross, and look to him who suffered
upon it as their Saviour, Sanctifier, Redeemer, and
final Judge, with as much confidence and trust as
any other sect. But the great distinguishing charac-
teristic of the Unitarian body is, that they profess to
call no man master, upon earth ; and that they act up to
that profession. Their master is Christ. Their creed
is the New Testament, sealed by the blood of our
Saviour, whose teachings they receive and promulgate
in the language in which he uttered them ; not en-
deavouring to improve it by the use of technical terms,
nor perverting it to party purposes with a view to
clerical power; not believing, and not teaching, that
their views and opinions are the sole or even infallibly
the best way of salvation; and not calling every man a
heretic who does not adopt them. Such are the
views of Unitarians, as I have gathered them from the
preaching of the clergymen of that denomination, in the
College chapel and elsewhere. They insist on freedom
from creeds of men’s invention, and independence
of all human dictation in the articles of their faith ;
maintaining the right of every man to search the Scrip-
tures for himself, and to “prove all things” for himself,
unbiased by party names and technical dogmas. They
believe that every man must stand or fall, before the
49
final Judge, according to the faith he has drawn from
the Holy Scriptures by virtue of his own research, and
not by his belief in creeds framed by other men, and
taken upon trust; it being every man’s duty, as well
as right, in the language of that father of New Eng-
land, John Robinson,” “to think for himself, and mot,
like the Lutherans and Calvinists, stop short where
their leaders stopped "; — of consequence, that a
way devised by other men is not to any man the
way of salvation, unless, independently of human
guides, he has found that way by his own faithful and
prayerful research.
The Unitarian denomination, then, is, in my judg-
ment, not only not chargeable with sectarianism, but
it is fundamentally opposed to the whole spirit of secta-
rianism. The essence of sectarianism consists, as I
have said, in holding and maintaining one or other of
two principles, – either that a belief in the tenets
which the sect combine to maintain is the only Scrip-
tural way of salvation, or that it is of all ways the most
certain of salvation.
The history of the Church is illustrative of these
views. The Romish church assumed to itself the
principle, that “out of the pale of our faith there is no
Scriptural assurance of salvation.” This was the great
power which enabled it for so many ages to govern
the world. That church, through the instrumentality
of this principle, possessed itself of the position which
Archimedes sought, — a place out of the world, by
which to move the world. This power was figura-
tively expressed by the term St. Peter’s keys, which
alone were able to open heaven’s gate.
* See Quincy’s “History of Harvard University,” Vol. I., p. 50.
7
50
When the Reformation came, and sects multiplied,
the leaders of every sect realized the advantage the
Romish church possessed in St. Peter’s keys; and, as
they could not devest that church of those keys, they
set themselves to work and manufactured little pass-
keys, as like St. Peter's as possible, and taught their
converts to believe that they were quite as good, if not
a little better, than the great keys of St. Peter; being
made of the same material, a little lighter, not quite
so burdensome, and altogether as sure.
Now I cannot find that the sect called Unitarian
ever made to itself a pass-key, - that it ever taught
that a sincere believer in the divine inspiration of the
New Testament, receiving all its sublime truths, all its
mysterious annunciations, all its recorded miracles, the
death, resurrection, and ascension of our blessed Sa-'
viour, with a humble and childlike faith, whatever
might be his construction and peculiar views of the
other parts of the Sacred Scriptures, was not quite as
sure of salvation as though he believed every tenet
of the Unitarian creed.
Such are the grounds on which I said that Unitarian-
ism has not the vital principle of sectarianism in it. And
yet, I never did and never will call myself a Unitarian;
because the name has the aspect, and is loaded by
the world with the imputation, of sectarianism.
It may here properly, and will naturally, be asked,
If you are neither a Calvinist nor a Unitarian, of what
sect are you? I answer, in the language of John
Milton,” whose conversion from Calvinism was, ac-
cording to his own account of the process, effected in
the same way as was mine.
* See “A Treatise on Christian Doctrine compiled from the Holy Scrip-
tures alone,” by John Milton, Vol. I, p. 9. Boston. 1825.
51
“For my own part, I adhere to the Holy Scriptures
alone; — I follow no other heresy, or sect. I had not
even read any of the works of heretics, so called,
when the mistakes of those who are reckoned for
orthodoa, and their incautious handling of Scripture,
first taught me to agree with their opponents when-
ever those opponents agreed with Scripture. If this
be heresy, I confess, with St. Paul, Acts xxiv. 14,
‘that after the way which they call heresy so wor-
ship I the God of my fathers, believing all things which
are written in the law and in the prophets,'—to which
I add, whatever is written in the New Testament.”
I answer again, in the language of Scripture, I am
of the class of “the disciples, who were called Chris-
tians first in Antioch.” Acts xi. 26.
Whenever men will be content with the name
which the Apostles selected and by which they chose
to be called, and will use only the language which is
to be found in the Scriptures, and in the connection,
and with the meaning, when it is clear, and when it is
dubious, with the Christian spirit, in which it was used
by those Apostles, there will be an end of sectarianism,
and with it an end of clerical ambition, with no dim-
inution of clerical power; —all men will worship in the
same faith together, and be only, and altogether,
CHRISTIANs.
A P P E N D I X.
A.
T A B L E S
Of “College Expenses,” strictly so called, at Harvard College, – mean-
ing thereby those charges which are peculiarly and exclusively, inci-
dent to life in College, and of course excluding cost of Board, Text-
Books, and Fuel,-for the four Academic years 1813–14 to 1816–17,
and also for the Academic years 1840–41 to 1843–44.
TABLE I.
1813 – 14.
Average.
Steward and Commons,” each class, t . $ 10.00 10.00
Rent, Freshmen, e º º
Sophomores º g wº . 7.
i. 3 & g 7.00 } 8.00
Seniors, e e 2 . 11.00)
Instruction, Freshmen, . tº é e #}
Sophomores, . * & g sº
jº . § & § 56.00 } 50.00
Seniors, de & e . 56.00
Instruction in Nat. History, Juniors and Seniors, 12.00 3.00
Instruction, Medical, Seniors, . * ſº 10.00 2.50
Library, Freshmen, ſº & tº ſº %)
Sophomores, . º ty e 2 00 2.50
Juniors, & ſº e * 4.00 • O
Seniors, * • . e 4.00)
Repairs and Fuel of Lecture Rooms, each class, 3.96
Sweepers and Sand, 4% 2.61
Catalogue and Commencement Dinner, “ 1.76
Theses and Orders, Seniors, . © & 1.21 .30
Diploma, & 6 e e . 2.00 .50
85. 13
Fines, average to every student of every class, 2.40
Assessm’ts for delinquencies in pay’t of quarter-bills, average, .98
— 3.38
$ 88.51
* This charge was entirely independent of the charge for Board in Com-
7??,077 S.
54
TABLE II.
1814 – 15.
Average.
Steward and Commons, each class, º $ 10.00 $ 10.00
Rent, Freshmen, © . 10.00
Sophomores 10.00
Juniors, e ; 10.50
Seniors, e 12.00
Instruction, Freshmen, e ;
Sophomores, 45.50
Juniors, 57.50 51.50
Seniors, ſº e o o 57.50
Instruction in Natural History, Juniors and Seniors, 12.00 3.00
Instruction, Medical, Seniors, e 0.00 2.50
Library, Freshmen, . º © . 0.00
Sophomores, . e e o 2.00 | 2.50
Juniors, . 4.00 e
Seniors, º e e e 4.00 J
Repairs and Fuel of Lecture Rooms, each class, 9.67
Sweepers and Sand, {{ 1.02
Catalogue and Commencement Dinner, “ 1.76
Theses and Orders, Seniors, 1.14 .28
Diploma, 66 7.00 1.75
94.48
Fines, average to every student of every class, $ 2.48
Assessm’ts for delinquencies in pay’t of quarter-bills, average, .82 3,30
$ 97.78
TABLE III.
1815 – 16.
Average.
Steward and Commons, each class, © $ 10.00 $ 10.00
Rent, Freshmen, º e ... 10.00
Sophomores, 10.00
Juniors, 10.00 10.50
Seniors, . g 12.00
Instruction, Freshmen, 46.00
Sophomores, 46.00
Juniors, * & 61.00 | 53.50
Seniors, . e ſº tº 61.00)
Instruction, in Natural History, Juniors and Seniors, 12.00 3.00
Instruction, Medical, Seniors, © . 10.00 2.50
Library, Freshmen, 0.00
Sophomores, © 2.00 | 2.50
Juniors, 4.00 Q
Seniors, º © º 4.00 J
Repairs and Fuel of Lecture Rooms, each class, 7.32
Sweepers and Sand, 46 2.57
Catalogue and Commencement Dinner, “ 1.76
Theses and Orders, Seniors, 1.34 .33
Diploma, 6& 7.00 1.75
95.73
Fines, average to every student of every class, $ 2.49
Assessm’ts for delinquencies in pay’t of quarter-bills, average, 98 3.47
$99.20
55
TABLE IV.
1816 – 17.
Average.
Steward and Commons, each class, o $ 10.00 $ 10.00
Rent, Freshmen, c ſº ...]
Sophomores, .91
Juniors, išší 1174
Seniors, . 15.16 J
Instruction, Freshmen, º
Sophomores, 6.0 |
Juniors, • 64.00 55.00
Seniors, © & o e 64.00 J
Instruction in Natural History, Juniors and Seniors, -
Instruction, Medical, Seniors, 12.88 3.22
Library, Freshmen, 2.00
Sophomores, 4.00 3.50
Juniors, 4.00 &
Seniors, . e e o . 4.00
Repairs, and Fuel of Lecture Rooms, each class, 5.45
Sweepers and Sand, 6% © 2.55
Catalogue and Commencement Dinner, £6 1.76
Theses and Orders, Seniors, 1.12 .28
Diploma, 46 7.00 1.75
95.25
Fines, average to every student of every class, $ 1.85
Assessm’ts for delinquencies in pay’t of quarter-bills, average, 96 2.81
TABLE V.
$98.06
Expenses at Harvard College (exclusive of Board, Text-Books, and
Fuel) for the Academical years
1840 - 41.
Instruction, Library, and Lecture
Rooms, e e $ 75.00
Rent, and Care of Rooms, . 15.00
Special Repairs, e - 1.04
Diploma, (Seniors, $2.50,) average, .62
$ 91.66
1841 – 42.
$ 75.00
15.00
1.71
.62
$92,33
1842–43. 1843–44.
$ 75.00 $ 75.00
15.00 15.00
6.56 .85
.62 ,62
$ 97.18 $91.47
56
TABLE VI.
Summary, showing the average expenses of an undergraduate at Har-
vard College (exclusive of Board, Text-Books, and Fuel) for four years,
from 1813–14 to 1816–17, and for four years from 1840–41 to
1843–44.
&º
É 2, a; 5
& E 3 E *: O
* 5 5 # 5 = .
* * an
5 : G- ? g; # 3
a 3. &a 9 * >
:- Q t£ 3) C º
• * ºn C (Z. ;:- F =
tº ºn • - º Pi— 7 :
~ * sº * # 5
Ö ams 3 }
: E 3 E < 3.3
ſºl 3 = <3 << E
Year 1813–14, $85. 13 Year 1813–14, $88.51 Year 1840–41, $ 91.66
“ 1814–15, 94.48 “ 1814–15, 97.78 “ 1841–42, 92.33
“ 1815–16, 95.73 “ 1815–16, 99.20 “ 1842–43, 97.18
“ 1816–17, 95.25 “ 1816 – 17, 98.06 “ 1843–44, 91.47
Total for 4 yrs, $370.59 $383.55 $ 372.64
Average for 1 yr., 92.64 $ 95.88 $ 93.16
Cambridge, April 9, 1845.
I hereby certify that the foregoing tables, numbered from I. to V. in-
clusive, are abstracts, carefully made, from the original Quarter-bill
Books and Term-bill Books remaining in the Steward's office. Table VI.,
as will appear upon inspection, shows the result derived from the addi-
tion of the several sums total of the preceding tables. The abstract
which follows, marked B., showing the sums total of certain College
bills, is carefully made from the original entries in the Bill Books above
mentioned.
W. G. STEARNs, Steward of Harvard College.
57
B.
Aggregate of the Quarter-bills of two students at Harvard College,
(Mr. Bancroft and Mr. Cushing,) during the four Academic years
1813–14 to 1816 – 17; and of one student, (Mr. Charles J. Capen,)*
during the four Academic years 1840–41 to 1843–44.
Footings of Quarter-bills, four years, from 1813–14 to 1816-17.
eo. Bancroft. Caleb Cushing.
G
Freshman yr., 1st Quarter, 1813–14, $14.34 $ 17.08
2d 4% {{ 16.52 46.54
3d 66 {{ 22.95 45.47
4th “ 4% 13.71 42.97
-— $67.52 —- $ 152.06
Sophomore year, 1st Quarter, 1814–15, 18.79 53.49
2d 46 << 55.25 66.37
3d (£ % 64.38 74.21
4th “ “ 53.01 60.71
-— 191.43 -— 254.78
Junior year, 1st Quarter, 1815–16, 55.77 68.95
2d 44 40 53.82 64.91
3d {{ 4% 89.92 82.55
4th “ {{ 61.52 67.24
-— 261.03 -— 283.65
Senior year, 1st Quarter, 1816–17, 62.42 66.80
2d 49 {{ 64.17 89.98
3d {{ {{ 67.04 84.42
4th “ 46 63.59 69.53
Codicil to 4th Quarter-bill, 38.19 45.89
-— 295.41 — 356.62
Total for the four years, $815.39 $ 1,047.11
Footings of Term-bills, for four years, from 1840–41 to 1843–44.
Charles J. Capen.
Freshman Year, 1840–41, 1st Term, . © $ 99.47
2d “ © 92.62
- - $ 192.09
Sophomore Year, 1841–42, 1st Term, e . 99.01
- 2d “ e © 93.25
-— 192.26
Junior Year, 1842–43, 1st Term, e e ... 104.28
2d “ to & 104.16
208.44
Senior Year, 1843–44, 1st Term, e e . 97.69
2d “ e e 92.70
-— 190.39
Total for four years, $783.18
* The reasons for selecting Mr. Capen were, that, like Mr. Bancroft, he was
the son of a clergyman in moderate circumstances, and (adds the Steward)
“that he lived in College and boarded in commons, during his whole College
life; a very rare thing in these days. He is charged in every term-bill with
every one of the six items of Instruction, Rent, Special Repairs, Books, Fuel,
and Board.”
8
58
It appears, however, by the subjoined letter, that Mr. Bancroft, during
the first year of his College life, and the first quarter of the second year,
lived out of commons; whereas Mr. Capen, with whom he is compared,
boarded in commons during every term of his four years. In order,
therefore, to a just comparison of the present expenses of a College ed:
ucation with those when Mr. Bancroft was in College, the cost of the
College board for five quarters ought to be added to the account of Mr.
Bancroft's expenses, thus:–
Footing of Mr. Bancroft's Quarter-bills, as stated in the Tables, $815.39
Add for Board during five quarters, as by letter below, 105.66
$ 921.05
But the amount charged to Mr. Bancroft, for Text-books,
WaS © e o • * © $ 78.15
While the amount charged to Mr. Capen for the same was
only . © e e e º e 35.09
Deducting the difference, º © e 43.06
Mr. Bancroft's College expenses amount to e e $ 877.99
Mr. Capen's College expenses were . e te e 783.18
So that the real excess in the cost of an education at Harvard,
in 1813–17, beyond that at the present day, according to Mr.
Bancroft's and Mr. Capen's expenses, is . e e $94.81
instead of $ 32.21, as stated in the text.
JMarch 11.
Dear Sir,
The following statement shows the amount which would have been
charged to Mr. Bancroft for Board, if he had been in Commons during
the early part of his College life : —
Freshman year, 1st Quarter, . © e $ 3.24%
- 2d “. . e e . 28.00
3d {{ © e © 24.57
4th “ . . c. o . 24.50
Sophomore year, 1st “ e © e 25.35
$105.66
The whole of this amount, $ 105.66, should be added to the gross
amount of Mr. Bancroft's bills in your possession, in order to find what his
expenses would have been, had he been always a boarder in Commons. Mr.
Bancroft ought also to be credited with the sum of $ 43.06, that being
the difference between the amounts charged to him and Mr. Capen for
Text-books.
Very respectfully, yours,
W. G. STEARNs.
President Quincy.
* At the period referred to, the quarter-bills did not correspond at all with
the terms of study. There were three terms and four quarter-bills. The
first quarter ended, and the second commenced, a little more than a week after
the commencement of the College year. This fact accounts for the small
charge, in the first quarter-bill of the Freshman year, for board in Commons,
and also for the Codicil at the end of the Senior year.
59
C.
List of Professors, Lecturers, and Tutors, who instruct at Yale.
President Day, - Intellectual and Moral Philosophy and Political Econ-
omy.
Professor Daggett, — Constitutional Law.
$6 Silliman,— Chemistry.
“ Kingsley, - Latin and History.
$6 Knight, — Anatomy.
4& Fitch, – Moral Philosophy.
6% Goodrich, – Criticism.
46 Olmsted,— Natural Philosophy and Astronomy.
46 Woolsey, - Greek.
“. Larned, – Rhetoric and Logic.
4% Stanley, - Mathematics.
49 Thacher, — Latin and Greek.
Lecturer Shepard, – Natural History.
Instructor North, – Elocution.
The above constituting an aggregate of Professors and Instructors, 14
In addition to the above, there are Tutors, who teach Greek, Latin,
and Mathematics, tº & & * e wº
and an assistant Lecturer in Chemistry, * e e 1.
22
I put aside, in Yale, Professors Ives, Taylor, Beers, Gibbs, Hitchcock,
Hooker, Bronson, Salisbury, and Instructor Townsend, because I cannot
find that they either instruct or lecture to undergraduates.
List of the Professors, Lecturers, and Tutors, in Harvard College.
Professor Warren, – Anatomy.
6% E. T. Channing, — Rhetoric and Oratory.
66 Webster, — Chemistry and Mineralogy.
6% W; — Natural Religion, Moral Philosophy, and Civil
olity.
6% sº- History.
6% Beck, - Latin.
66 Felton, — Greek.
£6 Peirce, — Astronomy and Mathematics.
46 Gray, — Natural History.
6% Lovering, — Natural Philosophy and Mathematics.
Constituting an aggregate of Professors, {} & & 10
In addition to the above, there is one Tutor who instructs in Elocution
and Constitutional Law, . ſº tº gº o
and in teaching Latin and Greek, & * o † 2
13
I put aside, in Harvard, Professors Jackson, Story, Greenleaf, Bige-
low, W. Channing, Hayward, Bond, Francis, and Noyes, because they
neither lecture to nor instruct undergraduates; and also Ware and
Treadwell, who lecture on subjects on which there is no corresponding
lecturing in Yale. Also, in respect of both institutions, the professors
and instructors in modern languages are put aside.
60
D.
At a meeting of the President, Professors, and Tutors of Harvard
College, March 15, 1786, -
John Quincy Adams, of Braintree, born July 11, 1767, son to his Ex-
cellency, John Adams, Esq., Ambassador from the United States at the
Court of London, now applied for admission into the Class of Junior
Sophisters in this University, and, after examination had, –
Voted, That, upon his complying with the laws respecting admission,
he be admitted into such class. -
N. B. No money was required from Adams, for his admission to this
advanced standing; the Corporation and Overseers having voted, some
time before, as a mark of gratitude to his father for the important ser-
vices rendered by him to the United States, that he should be admitted,
free from all charge, to whatever standing he should, on examination,
be found qualified for.
E.
Vote passed, June 29, 1839, by the Corporation.
Voted, That the Treasurer be authorized, on the application of any
candidate for advanced standing in the College, to postpone any demand
of the usually required fee, for one year; and if such applicant shall
prove himself to have need and merit, after trial of one year, that he be
authorized to remit it altogether.
EXTRACT FROM MR. BANCROFT'S “ MINORITY REPORT,”
SO FAR AS IT IS THE SUBJECT OF COMMENT IN THE PRECED IN G.
SPEECH.
The undersigned, as one of the Committee of Visitation, attended to
the duty assigned him, by repeated visits to the College, by personal
observation, and by continued inquiries.
The undersigned dissents totally from the suggestion that higher
qualifications should be the requirement of admission. Such additional
requirements could easily be made a part of instruction in the excellent
public school in Boston, and in some few academies and private schools.
They could not be made general in the preparatory schools of the
country; and they would, therefore, shut the doors of Harvard College
still more effectually against almost all but the sons of residents in Bos-
ton, and a few favored places. The adoption of the elective system of
studies diminishes the motive to such additional requirements.
The undersigned, acting as one of your Committee, has been more
deeply impressed than ever with the disproportion between the magnifi-
cent endowments of Cambridge and the comparatively small number
who derive a benefit from them. The increase of students has not
kept pace with the increase of the population of the Commonwealth.
The resort to the College is also becoming more and more con-
fined to the sons of residents in Boston and its immediate vicinity.
Were the whole Commonwealth as well represented there as this city,
the number of students would be at least three-fold greater than at
present. It is a serious fact, well worthy the most grave consideration
of this Board, that eight prosperous and intelligent counties, which
elect a majority of the Senate of this Commonwealth, send to Harvard
College fewer pupils than they return Senators to this Board. The
counties of Worcester, Franklin, Hampshire, Hampden, and Berkshire,
Norfolk, Bristol, and Barnstable, send this year, through the Senate,
more Overseers to Harvard College than their constituents send of their
sons. This desertion of the College, by half the Commonwealth, is
most deeply to be regretted. The excellent apparatus for instruction,
the scientific collections, the library, and the merits of the professors, –
among whom are men venerable for their ability, learning, and consci-
entious fidelity as instructors, – conspire to nourish the wish, that the
resort to the College may be quickened.
62
The present year, the students from Massachusetts are but one hun-
dred and eighty-four. Of these, one hundred and four are from Boston
and its three suburbs of Roxbury, Cambridge, and Charlestown; and
but eighty from the rest of the Commonwealth. Leaving out of the
account the three counties of Suffolk, Middlesex, and Essex, and all
Massachusetts sends but twenty-nine pupils to Harvard College. Yet
the Constitution of this State makes it the duty of the Legislature to
cherish the University at Cambridge, in order that knowledge may be
diffused generally among the body of the people.
Two causes conspire to diminish the throng to Harvard College. An
apprehension exists, that a sectarian character attaches to its govern-
ment. Harvard College belongs to no sect. It is the child of the Com-
monwealth. It is the house of learning which the people have erected,
and which they have founded on the Constitution itself. No sect has a
right to the possession of it. No party, religious or political, should
control it. In the selection of its teachers, a single eye should be had
to capacity and fidelity; in the selection of the clerical part of the per-
manent board of its overseers, ascendency should be given to no one
religious denomination. Were every apprehension on this subject dis-
pelled, it would go far towards winning for the College universal confi-
dence.
The second cause of the diminution of public favor is the increasing
expense of education at Cambridge. The habits of economy at a place
of education are affected by the character of the collective body of the
pupils. As expenses increase, the sons of the less affluent begin to
remain away, and the absence of their influence aggravates the ten-
dency to expensive gratifications. But the old-fashioned frugality and
rustic simplicity are the best allies of discipline. The undersigned, as
one of the Board of Visiters, is not prepared to confirm the remark,
that, “in point of disposition to good order and assiduity in study, little
more is to be hoped or even to be wished.” There remains great room
for desirable improvement, which would be promoted by the greater
influx of recruits from the country, and from the families of the less
wealthy.
The expenses of tuition have been increased at least fifty per cent.
beyond what they formerly were, and for some of the classes thirty-
three and a third per cent. beyond what they were when the under-
signed was a student. Yet the College has all the time been growing
more opulent. The charge for tuition is greater at Cambridge than at
those institutions where there are no endowments, and where the pro-
fessors depend for their whole livelihood on their success in attracting
pupils. It is preposterous to say that this is necessary.
A diminution of the expense of tuition might bring with it, perhaps,
a very small diminution of the number of those engaged in the govern-
ment and instruction of the College ; and perhaps a slight increase of
63
duty to some who are now the least burdened; yet not such an increase
as would affect the character of their places as the most agreeable,
most desirable, and least onerous in the country. Or it might leave
some inconsiderable portion of their salaries contingent on the number
of pupils whom they might draw around them. If so, it would only
require them to share, in some little degree, the lot of every lawyer,
physician, editor, and private teacher in the community.
In regard to expense, the undersigned must add a reprobation of a
practice of the College, of demanding from students admitted to an ad-
vanced standing the tuition, in part, of the previous instruction, which
they did not enjoy. In European Universities, such a thing, it is believ-
ed, is not heard of. It is extortion, and ought instantly to be abolished.
To give the Board an opportunity of expressing an opinion on the
subject discussed in this report, the undersigned concludes by offering
the following resolutions.
Resolved, That this Board do not advise an increase in the require-
ments for admission to Harvard College.
Resolved, That, in filling up vacancies in the clerical part of the per-
manent Board, care should be taken to avoid giving a majority to any
one religious denomination. -
Resolved, That the charge for tuition, in Harvard College, where most
of the professorships are endowed, ought not to exceed the charge for
tuition in those Colleges which are wholly or principally dependent for
support on the tuition fees from students.
Resolved, That, where students are admitted to an advanced standing,
the Board do advise that no charge whatever should be made to them
for tuition which they have never received.
Resolved, That a special committee of three, from the Board, be ap-
pointed by the nomination of the chair, to mature and report a plan for
the immediate reduction of the expense of tuition in Harvard College,
and that the President and Fellows of Harvard College be requested
to coöperate with said committee.
All which is respectfully submitted.
GEORGE BANCROFT.
Boston, January, 1845.
Lest it should be suggested that full justice has not been done
to Mr. Bancroft's statements and views, in the preceding Speech, I
have deemed it proper to publish the above extract, which in fact con-
tains the whole of the Minority Report, so far as it relates to Har-
vard College. The part omitted being introductory, and relating
to a controversy, of a somewhat personal nature, between Mr. Bancroft
64
and Mr. Morey, the Chairman of the Sub-committee of Visitation,
it could not, with propriety, be retained and published, without also
publishing a long letter from Mr. Morey, controverting the statements
of Mr. Bancroft. As the subject of that controversy is not alluded to
in the preceding Speech, I have deemed it more proper to omit whatever
related to it in the Minority Report.
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