c 
 
 YieAe 
 
YALE COLLEGE 
 
 IN 1890 
 
 REFLECTIONS ON ITS CHARTER 
 
The articles composing this pamphlet were 
 written at odd times when the writer was in the 
 humor, and were published at odd times when the 
 newspapers to which they were addressed cared to 
 publish them. 
 
 They are now put together as a contribution to 
 the information graduates will have in their posses- 
 sion before they commence any a6lion in the pre- 
 mises. 
 
 D. Cady Eaton. 
 
:iA 
 
 YALE COLLEGE IN 1890 
 
 I. 
 
 There is a radical difference between a college 
 and a university. This difference should be em- 
 phasized in a country where there is danger of the 
 terms being confounded and where there is appar- 
 ent a disposition to regard a university as a college 
 of a larger growth, or as the logical expansion of 
 a successfully condu(?ted college institution. The 
 misconception is already beginning to injure the 
 cause of education by impeding progress in some 
 directions and by wasting and scattering force in 
 others. The difference is both philological and 
 historic. Both terms are of Roman origin. " Uni- 
 versitas " designated any corporate body of which 
 the fundlions and powders were not only common 
 to all its members, but were generic in charadler. 
 ^' Universitas Civium '' meant the whole body of 
 citizens in most generic acceptation, without refer- 
 ence to specific duties, or occupations. The term 
 could be applied to a city, town, or province ; and 
 
 3 
 
then nearly corresponded to the modern term 
 ^' Mnnicipal Corporation.'' So generic a term 
 conld not fail to be misused ; but through all the 
 misuse there survived the fundamental notion of 
 some particular universality. Otherwise the term 
 would have been meaningless. The term was 
 diffuse, stretching over all who could be covered 
 by one political, or other economic, principle : over 
 all who could be brought within defined topograph- 
 ical limits. 
 
 '' Collegium " was, in a certain sense, the con- 
 verse of " Universitas.'' It indicated a limited and 
 restridled body ; a body drawn from the " Univer- 
 sitas " for certain purposes and united b}^ simi- 
 larity of occupation or interest. Such was the 
 '^ Collegium Pontificorm '' ; the college of the Ves- 
 tal Virgins, etc., etc. The term survives in its 
 original use in such titles as " The New York 
 College of Pj^sicians and Surgeons," for instance. 
 The " Guilds " of the middle ages were the legiti- 
 mate successors of the Roman " Collegia." The 
 term is concentric ; not necessarily narrow and 
 selfish, but individual. A collegiate philanthropy 
 is limited ; not cosmical. 
 
 When the darkness of the middle ages began 
 
 to gleam with the light of modern civilization the 
 
 term '^ Universitas " reappears to designate not 
 
 only a large union of masters and scholars, but 
 
 4 
 
also the town where they assemble to teach and 
 to be tanght. The University of Paris, for 
 instance, designated not only the corporate body 
 of teachers and scholars, but also that part of 
 the city where the schools were held ; where 
 prevailed special university laws administered by 
 specially sele(?ted nniversity officers. Down to 
 the time of Richelien ^^ I'Universite '' was as 
 independent of the rest of Paris as if it had 
 been miles away. 
 
 The origin of the great European nniversities 
 of the twelfth and thirteenth centuries is as ob- 
 scure as the origin of most things. That large 
 and famous schools existed as early as the seventh 
 century is evident, and that the term ^' University " 
 was used may be inferred ; but the term first offi- 
 cially appears at the end of the twelfth century ; 
 and then in bulls, decrees and charters, issued by 
 popes, emperors and kings, confirming rights and 
 privileges which as customs had undoubtedlj^ ex- 
 isted for centuries. 
 
 In 1 158 Frederick Barbarossa issued a decree to 
 the '^ Universitas Magistrorum et Scholorum '' of 
 Bolognia ; conveying among other rights, the 
 right of students to be tried by their masters ; 
 thus freeing them from the jurisdidlion of the town 
 and recognizing the university as an independent 
 and juristic body. 
 
 5 
 
In 1 194 Pope Celestin III. issued a decree of 
 similar import to the '' clercs residaiits a Paris." 
 This was followed in 1200 by an edi6l of Philip 
 Augustus to the " Universitas-Scholorum " of 
 Paris prohibiting the Provost of Paris from inter- 
 fering with the students in any way whatsoever, 
 and freeing them from the city's criminal and civil 
 processes. 
 
 To follow the history of universities is too long 
 a matter for articles intended for quick reading and 
 for calling attention to present issues. 
 
 After the thirteenth century universities owe 
 their origin to popes and to secular sovereigns. 
 A few were established by free cities, but their 
 degrees were little esteemed. 
 
 The conclusion sure to be reached from a study 
 of the past and of the present, is that a university 
 should be a place of universal learning ; where 
 faculties should subsist in substantial indepen- 
 dence ; where no particular denominational notions, 
 or personal prejudices, should prevail to the injury 
 of any legitimate study ; and where the presiding 
 officer, call him what you please ; redlor, chancel- 
 lor, or president, should be an executive officer, and 
 nothing more, ele(?ted at short intervals by the body 
 '' Magistrorum Scholorumque " to see to it that the 
 laws of the university are carried out ; the dignity 
 of the institution upheld and its interests advanced. 
 
A college, throughout the vicissitudes of history 
 from the time of the Romans down has come to be 
 an institution of different and limited purposes. 
 An institution whose particular and individual 
 notions may express themselves and legitimately 
 prevail without injury to the general body. At 
 the universities of England the difference is so 
 sharply presented as to be most easily- understood. 
 A college, as the term was used during the middle 
 ages, designated a foundation, or charit}^, to assist 
 poor students in pursuing their university studies. 
 The donor, or donors, could limit the enjoyment 
 of the charity by any conditions within reason 
 and not opposed to the fundamental regulations of 
 the universit}^ Race and national restri(?tions 
 were permitted as well as limitations to selected 
 studies. Certain monastic orders might be favored, 
 or certain social ranks. Colleges in this primitive 
 acceptation have almost entirely disappeared from 
 the Continent. In France successive revolutions 
 have so frequently broken up and changed institu- 
 tions that connedlion with the past is little more 
 than traditional. Italy has fared no better ; though 
 Bolognia claims organic life and continued univer- 
 sity succession for a thousand years. In Germany, 
 the universities are of more recent origin and sub- 
 sist without the aid, or support, of colleges. In 
 England, however, the colleges have weathered 
 
 7 
 
political gales ; have increased in strength and 
 power with the increasing power of the country, 
 and are to-day magnificent evidences of private 
 contributions to the glorious permanency of the 
 foremost institutions of learning in the civilized 
 world. At Oxford, perhaps better known to 
 Americans than Cambridge, the colleges have 
 grown with the centuries till now they are the 
 richest and most influential of all institutions of 
 learning ; possessing lands and revenues ; build- 
 ings, ecclesiastical, scholastic and domestic — 
 models of architedlure ; distributing clerical liv- 
 ings and lay fellowships ; bountifully rewarding 
 diligent study; furnishing learning with honor 
 and power. Each college still has its particular 
 laws governing the acceptance of students and 
 their behavior during residence. The instru(?tion 
 in each is different. Though the university alone 
 confers degrees, each college requires of students 
 certain collegiate work before they may present 
 themselves to the university as candidates, and the 
 requirements vary. This colle6lion of independ- 
 ent institutions w4thin the universality of a uni- 
 versity, and under its protedlion, is the form which 
 the past of the Anglo-Saxon race has accepted as 
 the best for its educational development. The 
 present should study it. Legislators and teachers 
 should understand it and should discuss modifica- 
 
tions the country may require. But it is high 
 time plans were laid ; general divisions marked, 
 and general principles established ; that schools 
 and colleges may grow up to, and properly fill, 
 their respective places ; and, above all, that univer- 
 sity learning may ever be kept free from seClional 
 and sectarian domination. 
 
 In view of the faAs thus rapidly set forth and 
 of the self-deducing principles a private aA passed 
 by the legislature March, 1887, is significant and 
 alarming. The a6l reads as follows : 
 
 Resolved by this assembly : That the use of the 
 title ^^ Yale University " by the corporation exist- 
 ing under the name of ^'The President and Fel- 
 lows of Yale College, in New Haven," is hereby 
 authorized ; and all gifts to, contrails with, con- 
 veyances to or by, or other a6ls affedling said cor- 
 poration, by either of said names shall be valid ; 
 and the acceptance of this adl by said corporation, 
 shall not operate to subject its charter to repeal, 
 alteration or amendment within its consent. 
 
 Approved, March 8, 1887. 
 
II. 
 
 New Haven has a Law school at the head of 
 which is a Congregational clergyman. New Haven 
 has a Medical school at the head of which is a 
 Congregational clergyman. New Haven has a 
 Scientific school at the head of which is a Congre- 
 gational clergyman. New Haven has a school, 
 called the Department of Philosophy and Arts, at 
 the head of which is a Congregational clergyman. 
 New Haven has a school of Fine Arts at the head 
 of which is a Congregational clergyman. New 
 Haven has a school of Astronomy at the head of 
 which is a Congregational clergyman. And New 
 Haven has a school of Theology at the head of 
 which is a Congregational clergyman. There 
 wonld be no obje6lions to this latter arrangement, 
 at least on the part of the Congregationlists, pro- 
 vided the school had the privilege of sele6ling its 
 own head, prescribing his duties and limiting his 
 term of office ; though of the twenty odd millions 
 of church members in the United States only about 
 four hundred and fifty thousand are Congregation- 
 alists. Oddly, the Congregational clergyman who 
 is at the head of the Law school is the very same 
 Congregational clergyman who is at the head of 
 the Medical school and at the head of all the other 
 
schools ; so that special fitness, apart from being a 
 Congregational clergyman, is not, and cannot be, 
 considered in the appointment. More oddh^ still, 
 these schools have no voice whatsoever in selecting 
 their one and supreme head. He holds this most 
 important, most anthoritative, and most inflnential 
 position ex-officio, and merel}' as an appendage of 
 his headship of Yale College ; to which latter posi- 
 tion he is ele(?ted for life b\' a board of which the 
 majorit}^ is a self-perpetnating bodj^ composed of 
 Congregational clergymen like himself, except that 
 their choice is limited by the still narrower restric-. 
 tion that they mnst be residents of Conne(?ticnt. 
 
 Nor is the position merel}^ nominal and execn- 
 tive. The head of Yale College claims the right 
 of vetoing the a6ls of all the faculties, while no 
 change in, or addition to them, except in the Med- 
 ical school, can be made without the consent of 
 this extraordinary educational pontiff, and without 
 the concurrence of the modern American sacred 
 college back of him ! One is inclined to rub one's 
 eyes and ask in wonder: " Can these things be; 
 and in this the nineteenth century ; and in this 
 land where freedom from denominational control 
 in every department of life has ever been a brave 
 boast ? It must be a dream ; for never in history 
 since learning declared, conquered, and maintained, 
 independence of the church, have such things been 
 
tolerated. Have we gone back to the middle ages, 
 to the times of Jesuitical supremacy?" 
 
 No, it is not a dream, but another instance of 
 the success of that slow, silent, skillful working 
 for power which has charaAerized churchmen since 
 the church first possessed secularities. The rise 
 and progress of this hierarchy can be traced in the 
 public and private aAs of the representatives of 
 Connedlicut all the way from the year 1701 when 
 the first charter of Yale College was granted by 
 the colony legislature. For full knowledge the 
 a(?ts of the college itself should be before the inves- 
 tigator. But as well ask to be shown the secret 
 transactions of the followers of Loyola. Still 
 enough of the past can be got at to fairly under- 
 stand the present and the duties it imposes upon 
 State representatives on the one hand, and upon 
 all true lovers of their Alma Mater on the other. 
 
 The position taken by those in opposition to the 
 present regime is this. Far be it from them to 
 detra(5l from the accomplishments of the college. 
 They are not disposed to question its usefulness 
 within the limits prescribed by its charter. But 
 they claim it should be kept within its charter ; and 
 that its narrow and denominational government is 
 not the government to be spread over a university 
 containing all the faculties and claiming national 
 recognition. They maintain that the state has 
 
power to interfere and that it should exercise the 
 power. They are conscious of practical injury re- 
 sulting from the present regime. They honestly 
 believe that if denominational superintendence and 
 control were removed, and the various departments 
 made free under a generic liberal and university 
 government, thousands of gifts and bequests would 
 flow into the various treasuries which are now, 
 year bj^ year, almost day by day, lost, or diverted 
 to other and more liberal institutions. 
 
 How many graduates of one's acquaintance have 
 personal cognizance of such diversions and losses 
 immediatelj^ traceable to peculiarities in the com- 
 position, in the a6ls, and in the manners of the 
 governing body of Yale College ? It is a sad com- 
 mentary that Yale's largest gifts come from out- 
 siders, unacquainted with the workings of its policy, 
 while graduates hesitate to put their money into the 
 hands of a body where enlightened progress and 
 cosmopolitan culture are of necessity limited, and 
 where the a(?tivity of the forces at work in the 
 outside world may be only dimly seen through 
 the veil of denominational opposition, or the haze 
 of clerical indifference. But let the matter be con- 
 sidered seriously and earnestly, and be judged 
 calmly and justly. 
 
 Three points present themselves : First, Is the 
 continuance of the present condition desirable ? 
 
 13 
 
Second, Has the legislature power to terminate it ; 
 and third, If it have the power, will it exercise it ? 
 That the clerical party now governing the college 
 and the various schools subjected to its sway will 
 ever of its own accord abdicate, might as well be 
 left out of the calculation at once. That it con- 
 siders itself eminently fitted for the performance 
 of these, as well as of all other possible duties, is 
 clerical. A clerical never surrenders power. His 
 grip remains tight till it is broken by force ; espe- 
 cially is this the case when he is aggregated and 
 is not acfting personally, that is under a sense of 
 personal justice or benevolence. The task, there- 
 fore, is to convince the legislature of its rights, 
 and to move it to their assertion. A long, dreary, 
 and well nigh hopeless task, but not to be shunned 
 by earnest conviction ; worthy of sacrifice ; attrac- 
 tive to pugnacity, and to legal subtlety and erudi- 
 tion. 
 
 The legal points are of generic law and of the 
 interpretation of special statutes. 
 
 A point without legal intricacies, and patent to 
 a common sense understanding of the fundamental 
 notion of law, is this: ^' Has Yale college the 
 power now, has it ever had the power, of creating 
 faculties outside of itself, independent of itself in 
 teaching and in the object of teaching, but depen- 
 dent upon itself and subordinate to itself in all 
 14 
 
other particulars?'' Yale college has certainly 
 exercised this right, and so far the state has not 
 questioned it. But has not its exercise been in 
 usurpation of rights of which the state cannot 
 divest itself, of which it cannot surrender control, 
 so long as it remains a sovereign state ? 
 
 The extremest clerical would not claim for the 
 college the power to establish, for instance, a School 
 of Law endowed with all the automatical powers 
 necessary to make it an honor and glory to the 
 state ; the power of regulating its own affairs ; of 
 dealing its own head in accordance with its own 
 regulations ; of holding its own property ; and of 
 conferring its own degrees. Then, pray, what 
 right has the college to ere(?t a law faculty bereft 
 of these attributes ; a faculty belittled, hampered 
 and confined by clerical dominations and limita- 
 tions ? 
 
 Can the state permit the clerical to say to the 
 lawyer : ^^ I have better understanding of the 
 laws of property than you, so I will hold and man- 
 age your possessions. I am better judge of legal 
 merit than you, so I will appoint to your professor- 
 ships. I can estimate desert with a clear insight 
 to you unknown, so I will distribute your degrees 
 and your honors, your LL.B's and your LL.D's. 
 
 One must pause awhile and reflect to recover 
 from the apparent absurdity of the position. 
 
 15 
 
III. 
 
 There is a radical difiference between a contradl 
 and a charter. A contrail is the voluntary a(?t of 
 parties between whom there is parity of position as 
 to the subje6l matter of the contradl and above 
 whom there is a superior party possessing requisite 
 power to enforce the instrument, or to inflidl pen- 
 alty for its violation. A sovereign state cannot 
 technically be a party to a contrail because there 
 is no superior sovereignty to enforce it. A sover- 
 eign state can be sued only in matters over which 
 it has surrendered sovereignty, or of which it per- 
 mits question. 
 
 According to the theory of the government of 
 the United States rights surrendered to the United 
 States b}^ individual states cannot be resumed, but 
 all rights not surrendered are still enjoyed by in- 
 dividual states in their sovereign capacity. Among 
 these reserved rights is the right to issue charters, 
 and with the right to issue is necessarily joined the 
 right to modify and repeal. Such is the teaching 
 of the common law ; such has ever been the prac- 
 tice of governments. ^' Cujus est dare ejus est de- 
 ponere." For stability in political life there must 
 be somewhere an absolute and final power from 
 which there is no appeal, of which the adls cannot 
 
 i6 
 
be questioned. In a republican form of govern- 
 ment the ultimate power is in the people. Their 
 Constitutions and statutes show the methods for its 
 manifestation. 
 
 A charter is an instrument issued by a state con- 
 ferring upon individuals privileges or powers, which 
 are sn^pposed to reside in the bosom of the state. 
 Among these rights no one is more honored than 
 the right to confer degrees. Any one can open a 
 school and give instruction, but in the state alone 
 resides the power to ennoble learning by giving it 
 a title. If the State delegate this power to others, 
 it must be exercised stridlly in accordance with the 
 wording of the instrument conveying the power. 
 A charter is in derogation of common right. By 
 this legal term is meant that a charter conveys to 
 a few rights to which they have no more natural 
 right than others. The few are favored to the ex- 
 clusion of the many. Therefore a charter must be 
 stri(?tly construed. The rights to be exercised 
 must be most clearly and distinctly specified. Any 
 doubt or ambiguity is fatal. A college chartered 
 for certain purposes must confine its acclivities 
 strictly to those purposes. A school of divinity 
 cannot confer degrees of law, nor a school of law 
 degrees of divinity. The same principles apply to 
 other corporations, public or private. A charter 
 to build and operate a railroad does not carry per- 
 
 17 
 
mission to open a bank ; though the bank would 
 be of use to the road. A charter to a car manufac- 
 turing companj' does not permit the company to 
 lay rails and run its cars thereon. A charter to a 
 savings bank does not create a bank of issue. A 
 charter to a mining company does not convey power 
 to move its ore to market unless that particular 
 power be granted in its charter ; unless the company 
 be chartered both as a mining and as a transporta- 
 tion company. These simple principles are beyond 
 dispute. Nor was the principle of the right of a 
 state of the Union to alter, or recall, its grants 
 seriously questioned, so far as the writer knows, 
 till the time of the celebrated Dartmouth case. 
 This case is so remarkable in itself, and so perti- 
 nent to the present inquiry that a few of its details 
 must be presented. To fully discuss the case 
 would exhaust the patience of the ordinary reader. 
 In 1816 the legislature of the State of New Hamp- 
 shire passed a bill increasing the number of trus- 
 tees of Dartmouth College from 12 to 21, and 
 changing the name of the institution to Dartmouth 
 University. Two of the old trustees joined them- 
 selves to the new trustees, thus giving the new 
 body a majority. One of the two was a W. H. 
 Woodward, treasurer and secretary of the old body. 
 When he went over he took with him the original 
 
 charter granted by George III., the corporate seal, 
 18 
 
etc., etc. The case is known as Dartmouth Col- 
 lege vs. Woodward as pro forma^ the a6lion was 
 brought against him for the recovery of the afore- 
 mentioned property. The a6lion of the legislature 
 was extremely arbitrary. It amounted to the de- 
 strudlion of the old body and to the creation of an 
 entirely new one. Subsequently the legislature 
 went still further and imposed a fine of $500 on 
 any member of the old body who refused to a6l 
 with the new. The case in time came up before 
 the highest court in the State of New Hampshire 
 and was there argued at length. It is to be re- 
 gretted that the New Hampshire reports do not 
 contain the arguments of counsel. The court de- 
 cided in favor of the legislature. The decision 
 given by Richardson, C. J., should be read by 
 all interested in college legislation. The broad 
 ground was taken that the state could not surren- 
 der the supervision of its chartered institutions of 
 learning, especially if they had attained a promi- 
 nence equal to that of the institution in question, 
 which, by its growth, had ceased to be a private 
 corporation and had become a public institution ; 
 that the affairs of such a college concerned the 
 entire population ; that, as it was a glorj^ to the 
 state, so it was the state's dutj^ to preserve it in- 
 tact, to hold it strictly to its duties, and to prevent 
 improper use of its privileges and powers. 
 
 19 
 
On a statement of the fadls the^case went up to 
 the Supreme Court of the United States ; the state 
 failing to oppose the appeal. It was argued at 
 great length during the month of March, 1818. 
 Mr. Webster spoke for two days. His brief covers 
 over fifty pages of Wheaton 4. He was on the 
 side of the original trustees and held the argument 
 firmly to technicalities. His eloquence and his 
 logic wxre irresistible. He fairly carried the court 
 ofi" its feet and out of its head. There was but one 
 dissenting justice, Duvall. The decision was that 
 the a6ls of the legislature of New Hampshire '' are 
 repugnant to the constitution of the United States 
 and so, not valid." John Marshall w^as Chief Jus- 
 tice and gave the decision of the court ; but Justice 
 Joseph Story's opinion, also given in Wheaton 4, 
 shows the superior lawyer. It must not be for- 
 gotten that at the time the decision was given the 
 federalist party, to which the majority of the Jus- 
 tices were attached, was engaged in a life-and-death 
 struggle with the new Democratic and State's 
 Rights party established by Jefferson, then known 
 as the Republican party, but subsequently and 
 still known as the Democratic party. Politics are 
 apt to have their full share in the important de- 
 cisions of the Supreme Court. 
 
 The decision w^as accepted, by Federalists at 
 
 least, as establishing the principle that the clause 
 20 
 
of the Constitution prohibiting States from passing 
 laws impairing the validity of contra(?ls applies to 
 charters, which, once granted, can neither be mod- 
 ified nor repealed without the consent of the bene- 
 ficiaries. It would be difficult nowadays to find a 
 disinterested lawyer of eminence not of the opinion, 
 either that the court went too far, or that too gen- 
 eral dedu6lions have been made from its decision. 
 There is no better reading in law literature than 
 Webster's argument and Storej^'s opinion. They 
 are the first things to be read by those interested 
 in the matter under discussion. Far be it from me 
 to pass judgment. The legal advisers of the state 
 were outclassed. They should have made their 
 fight on the legality of appeal. By consenting to 
 the appeal they placed the case in the hands of 
 their enemies. Their arguments as reported in 
 Wheaton 4. are weak, dreary, timid and illogical. 
 They knew they were whipped. The decision ex- 
 cited as much uproar as did the Dread Scott case 
 many years after, and as did the legal tender case 
 within recent memor3^ Contemporary literature 
 is full of it. In spite of the outcry of opposition 
 the decision was not only accepted by state and 
 Federal Courts, but expanded beyond the limits 
 originally contemplated. Banks, railroads, all con- 
 ceivable corporations took advantage of a ruling 
 which seemed in a fair way to do more for the per- 
 
manency of federalism, and for the destru(?tion of 
 state's rights, than had ever entered the head of the 
 extremist partisan ; for if a charter were to be re- 
 garded as a contrail what a6l of man, or of a body 
 of men, would be safe from the classification, and 
 from the domination of the central government? 
 What would prevent even an ele(?tion from being 
 brought under this far-reaching dodlrine? The 
 several states, thereafter, were careful to insert in 
 charters clauses reserving the right to repeal or 
 change. Many, as a safeguard against future 
 carelessness, passed general laws to the effedl that 
 all charters should hereafter be granted with the 
 understanding that the power to alter or terminate 
 was especially reserved. A law to this efifedl was 
 passed by the legislature of Connec^ticut, but not 
 till 1875. Of late years, whenever the Supreme 
 Court has had the chance, there has been mani- 
 fested an inclination to modify the ruling of the 
 Dartmouth case. It has been held, for instance, 
 that the ruling does not apply to public corpora- 
 tions — that is, those in which the public is inter- 
 ested, but must be restric^ted to private and eleemo- 
 synary corporations, such as hospitals, and schools 
 endowed by private individuals for specific pur- 
 poses and in no way receiving aid from the state. 
 In 1848 it was held that a legislature can retake 
 a franchise granted by a charter upon making 
 
compensation. In 1879 a still severer blow was 
 struck at the Dartmouth case by the court holding 
 that the charter is not thereby protected, but only 
 any contrail the charter may contain. These two 
 decisions seem to reduce the matter to a question 
 of an assessment of damages. So that if legisla- 
 tion were of pradlicable advantage to a college the 
 boot would be altogether on the other leg. There 
 can be little doubt that if a similar case was again 
 before the Supreme Court, the ruling in the Dart- 
 mouth case would be very much modified, if not 
 entirely reversed. The Dartmouth case was de- 
 cided in 1 8 19. The old charter of Yale was con- 
 firmed by the new state government of Connedlicut 
 in 18 18, so that in any case the Dartmouth ruling 
 would be retrospedlive and would require a renewed 
 judicial decision. 
 
 This very hasty sketch may serve as an intro- 
 dudlion to a more careful review of the a6ls of legis- 
 lation Avhich relate to Yale College. If a person 
 take up to-day's catalogue of Dartmouth, with the 
 celebrated case fresh in his mind, he will be sur- 
 prised to find that to the names of the successors of 
 the famous twelve, eight ex-officio names have been 
 added. He will be, perhaps, still more surprised 
 to find that to this body have been added : one ad- 
 junct body of thirteen members ; another, of two ; 
 and a third, of five. How the heroic twelve were 
 
 23 
 
forced from their high horses is recorded in the 
 a(?ts of the legislature of New Hampshire. That 
 the subjedl matter from which the Dartmouth case 
 sprang, and upon the preservation of the integrity 
 of which so many old fogy decisions seem to rest, 
 should itself have been disintegrated by the force 
 of public opinion and by the onward march of lib- 
 eral ideas, is an instructive circumstance for the 
 student of the legal history of the United States, 
 and of great encouragement to those warring 
 against denominational, and all other, limitations 
 and restri6lions in the government of American 
 universities. 
 
 24 
 
IV. 
 
 The first charter of the school of which Yale 
 College is successor was granted in 1701. It was 
 granted '' for the fonnding, suitably endowing and 
 ordering a collegiate school * ^ '^ wherein 
 youth may be instru(?ted in the arts and sciences, 
 who through the blessing of Almighty God may 
 be fitted /or public employme^tt both in church and 
 civil state.'' It was granted on the petition of 
 ^' several well disposed and public spirited per- 
 sons/' prompted by ^^ their sincere regard to, and 
 zeal for the upholding and propagating of the 
 Christian Protestant religion/' and its intent was 
 that '^ encouragement be given to such pious reso- 
 lutions and that so necessary and religious an 
 undertaking may be set forward, supported and 
 well managed." 
 
 The provisions of this charter are well known. 
 The rights and privileges asked were granted to 
 ten persons ^^ being all reverend ministers of the 
 Gospel and inhabitants within this said colony," 
 with power to increase the number to eleven and 
 with power to appoint successors drawn from the 
 same body to which they belonged, ^^ being over 
 forty years of age." With the charter came a 
 grant of ;^i20 a year ^^ until this court order other- 
 
 25 
 
 X 
 
wise." This grant and the words '^ for public em- 
 ployment " sufficiently indicate that the school was 
 chartered as a public institution. Corporate rights 
 were accorded, including the right of holding real 
 property to the value of XS^o. This is about all 
 there is to the original charter. 
 
 The part that discontented Harvardites played 
 in the foundation of Yale is recorded in Trumbull's 
 History of Conne6licut, Vol. I., pp. 500, 501, and 
 in Josiah Quincy's History of Harvard University, 
 Vol. I., p. 199 et seq. 
 
 In 1 701 William III. was still alive and un- 
 doubtedly had not ceased grieving for the loss of 
 his royal consort. It was part of the policy of 
 William and Mary to deal well and fairly with the 
 colonies, and these kind regards were continued by 
 Queen Anne. Connedlicut's troubles were not, 
 therefore, with the mother country, but with her 
 two powerful neighbors, Massachusetts and New 
 York — each greedy of her territories and hostile to 
 her liberties. The new school was founded and 
 fostered, that candidates for the ministry should 
 not be obliged to pursue their primary studies 
 at the school established at Cambridge, and that 
 Connedlicut might have good excuse for discon- 
 tinuing its subsidies to that institution. 
 
 From the founding of the colony, and for many 
 
 years after, the clergy were foremost in society for 
 26 
 
learning and for inflnence. Religious freedom was 
 the foundation stone of the commonwealth. Re- 
 ligious matters were the matters of chief concern. 
 Secular matters were referred to the church for 
 adjudication. The church represented the courts 
 of justice of to-day. No wonder it attra6led the 
 strongest manhood and the ablest intellect: in a 
 community where lawyers were exposed to arrest 
 and imprisonment as common barrators though 
 guilty of nothing unusual in the profession. The 
 jealous church arrogated to itself censorship over 
 all public and private activities. For years in 
 New Haven colony the right to vote was limited 
 to church members in good standing ; and you 
 would not have to travel very far from the Green 
 in any dire6lion to find folks who would like to see 
 the law revived. By the church was meant the Puri- 
 tan church, the Congregational church of to-day. 
 If the particular name be not specified it is because 
 the existence of other denominations w^as ignored. 
 When the New Haven colony was joined to Con- 
 necticut, and there appeared a small show for civil 
 government, John Davenport, in spite of his ex- 
 treme age, was so mad that in a grand huff he wxnt 
 back to Boston leaving his flock to shift for itself. 
 One point about this charter. It was granted 
 to individuals and on their petition. Story, in his 
 
 opinion in the Dartmouth case, stated as follows : 
 
 27 
 
^'It is a general rule of the common law that a 
 grant of the king at the suit of the grantee is to be 
 construed most beneficially for the king, and most 
 stri(?i:ly against the grantee. Wherefore, it is usual 
 to insert in the king's grants a clause that they 
 are made, not at the suit of the grantee, but of the 
 special grace, certain knowledge, and mere motion 
 of the king, and then they receive more liberal 
 construction." These words occur in the Dart- 
 mouth charter. No similar expression is to be 
 found in any of the Yale charters. 
 
 According to the triennial catalogue, the college 
 at the start must have had a hard time of it. In 
 1702 there was one graduate. It seems to have 
 been the custom to confer the ALA. degree and the 
 B.A. degree at the same time. In 1703 there was 
 another graduate. In 1704 there were four. After 
 the name of one of the four is '' M. A. Harv." As 
 his name is not in italics, the trustees and the one 
 tutor representing a faculty, probably found out 
 that he was not clerically inclined, and so fired him 
 out to finish his education at Harvard, where a bit 
 of secularity was beginning to show itself. In 
 sixteen years there were but sixty-one graduates. 
 Of these but fourteen are not honored with clerical 
 italics. As the clergy had the best of everything 
 in those days, and were consequently long-lived 
 
 the supply was undoubtedly sufl&cient. 
 
 28 
 
The next legislation, so far as the writer knows, 
 bnt his knowledge is limited and snbje6l to authori- 
 tative correcftion, occurred in 1723, when George I., 
 the German, was b}^ his ways and manners making 
 some Englishmen think they had been over hasty 
 in expelling the Stuarts ; when the last French 
 war was under way ; when the first state house at 
 Hartford had been ere(5led and the conception of 
 our own classical antiquity had still before it more 
 than a century of repose in the womb of time ; 
 when the Saybrook platform was in full swing, 
 and w^hen citizens were being fined twenty shillings 
 for absenting themselves on Sundays from their 
 '^lawful congregations.'' 
 
 The a(?t of 1723 removes the forty year limit by 
 reducing it to thirty. It also enables a majority 
 of the trustees present to a6l under circumstances 
 which, under the old adl, required the presence of 
 a quorum. Either venerable clergymen ^'residing 
 in Connedlicut " were becoming scarce or they 
 were failing to appreciate the honor of the posi- 
 tion. In the adl the school is sometimes called a 
 college, sometimes a collegiate school. The school 
 is said to have been " eredled ;'' as if the building 
 defined the term. The title ''Yale College'' 
 appears. The trustees moreover are given power 
 to appoint a re6lor and a clerk. The point of im- 
 portance to this discussion is that it nowhere 
 
 29 
 
appears in the a(?t that the changes were efFecfted 
 with the consent, or even on the application, of the 
 trustees. The general assembly had no doubt of its 
 authority to regulate a college of its own creation. 
 
 Then comes the a(?t of 1745. As this a(?t created 
 the charter substantially as it exists to-day, some 
 of its provisions must be carefully examined. The 
 a6l sets forth the adls of 170 1 and 1723 ; and then, 
 stating that the present a(5l is on the petition of the 
 trustees, ena6ls, ordains and declares as follows : 
 
 I St. That the trustees shall be an incorporate 
 society or body corporate, and known by the name 
 of " The President and Fellows of Yale College." 
 
 2d. That gifts and bequests made to the college 
 under any name, when the intent is clear, shall be 
 vested in the president and fellows aforesaid. 
 
 3d. That the president and fellows may, and 
 shall, have a common seal. 
 
 The fifth paragraph regulates meetings. 
 
 The sixth relates to the perpetuating of the 
 body by eledlions, and apparently gives the body, 
 by special grant, the power of removing a member. 
 The wording is obscure. A trustee, or president, 
 may be removed " whom the said Governor and 
 company hereby declares for any misdemeanor, 
 unfaithfulness, or incapacity, shall be removed by 
 the president and the fellows of the said college, 
 six of them concurring in the such adl.'' This 
 30 
 
probablj^ means that it was recognized that the 
 power to expel was lodged in the hands of the 
 Governor and company, that is, the General As- 
 sembly ; and that this power was granted in antici- 
 pation for each case as it might arise. Whether 
 the fellows would, under the clause, have the 
 power to remove a president, is doubtful. Prob- 
 ably this could only be done by direcft a6l of the 
 legislature. In this paragraph the word '^ univer- 
 sity " occurs for the first time. The trustees are 
 given the power to appoint all such officers, pro- 
 fessors, etc., usually appointed in '^colleges, or 
 universities." Conne6licut legislators even as late 
 as 1745 had vague notions of the distindlive fea- 
 tures of schools, colleges and universities. 
 
 The eighth paragraph is very important. The 
 power of the president and fellows to manage the 
 affairs of the college in all detail is fully and clearly 
 set forth. The important part is the last clause. 
 ^^ Which," that is, the a6ls of the president and 
 fellows, '' shall be laid before this assembly as 
 often as required, and may also be repealed or dis- 
 allowed by this assembly when they shall think 
 proper." If this clause has not been repealed, then 
 the people of Conne6licut have through their rep- 
 resentatives all necessary power for correcting 
 abuses, and are responsible for their continuance. 
 The writer so far has failed to find any record of 
 
 31 
 
such repeal though the clause does not appear in 
 the charter as published in last year's catalogue, 
 and the catalogue states that all permanent provis- 
 ions of the charter ate given. Until this point is 
 settled in favor of the clerical party, it is unneces- 
 sary to argue on general principles against them, 
 for with that clause in continuing existence they 
 have not a leg to stand on. 
 
 Under the clause the legislature can render the 
 charter inoperative, and thus kill it deader than a 
 door nail. 
 
 The ninth paragraph gives the president and 
 fellows power to confer all degrees as are usually 
 given in ^' colleges or universities." This para- 
 graph is also of great importance, for on it, as is 
 understood, the college bases its powers to establish 
 schools and confer degrees outside of its own im- 
 mediate funcftions, and to continue the same Puri- 
 tanical superintendence of law, medicine, science 
 and art which existed in 1692, for instance, when 
 good old souls who could not stand long sermons 
 and nasal psalm squealing were called witches and 
 condemned to death accordingly. A little whole- 
 some and common sense legislation may be neces- 
 sary to make clear to Congregational insight the 
 difference between the two words. 
 
 The tenth paragraph is delightful. A pity it 
 were not in existence. Under it any soul in any 
 32 
 
way permanently conneAed with the college, both 
 he and his possessions enjoyed freedom from rates, 
 taxes, military service, etc., etc. Even the modern 
 sweep would have reaped the benefit. 
 
 The eleventh paragraph grants the president 
 and fellows for the nse of the college " one hnndred 
 ponnds silver money a year at the rate of six shil- 
 lings and eight pence.'' How mnch that would 
 amount to to-day may be figured out by the curious. 
 ^' This payment to be continued during the pleas- 
 ure of this assembly." 
 
 The ruling in the Dartmouth case has as little 
 to do with the construing of such a charter as it 
 has to do with the regulating of the planetary 
 system. 
 
 33 
 
V. 
 
 The charter of 1745 was framed and granted — 
 ^' imposed " might be a better term — dnring the 
 presidency of Thomas Clapp, the sturdy upholder 
 of the college's autonomJ^ The clause giving the 
 General Assembly power to " repeal or disallow " 
 all a6ls of the corporation must have sent a cold 
 chill down his venerable back, but such unpopu- 
 larity had followed his bigoted opposition to the 
 Whitefield revivalists that he and his followers 
 swallowed the prescribed dose in discretionary 
 silence. 
 
 The charter of 1745 is a well constru6led docu- 
 ment. It is clearly and succin(?tly worded. No 
 better example had as yet been given by a legisla- 
 tive body. 
 
 Next in chronological order comes the very im- 
 portant amendment of 1792. In this year, to be 
 brief, the state having on hand a large amount of 
 surplus money and being willing to grant a portion 
 to the college, desiring, moreover, that the question 
 of authority should be settled once for all, and peace- 
 fully if possible, made a proposition to the president 
 and fellows. The proposition was substantially to 
 theeffe6l that the sum of " two thousand five hun- 
 dred pounds, lawful money " should be donated to 
 34 
 
the college '' for the ere6lion of a new building or 
 college, for the reception and accommodation of the 
 students;'' and that the residue, if any, should be 
 turned into a fund " for raising an annual revenue 
 forever hereafter to be applied to, and for the sup- 
 port of, necessary professors in the various arts 
 and sciences, for the benefit of said college." The 
 condition affixed to the gift was that the Governor 
 and Lieutenant Governor and " six senior assist- 
 ants in the council of the state " should be fellows 
 of the college, and that the presence of at least 
 four of these new members should be necessarj^ to 
 constitute a quorum for the transadlion of any and 
 all college business. After a month's considera- 
 tion, finding no way out of the dilemma. President 
 Stiles and his clerical associates, making virtue of 
 necessity, accepted. The new college, now South 
 college, was called Union college to commemorate 
 the termination of strife ; the new fellows entered 
 upon the discharge of their duties ; all was serene ; 
 only an occasional bump disturbed happiness. It 
 is the greatest pity in the world that the arrange- 
 ment was ever disturbed and terminated. The 
 reader will perceive that up to this time " college " 
 was a vague term ; as applicable to a building as 
 to an institution. Here might be inserted a dis- 
 cussion of the necessity a state is under to preserve 
 a superintendence of all the institutions of learning 
 
 35 
 
within its borders. The theme is as old as the 
 dialogues of Plato. Argnments in its support 
 could be drawn from history since the establish- 
 ment of the first republic. Certainly a state 
 should create no institution of learning which 
 it is not capable of understanding and superintend- 
 ing, and which is not in practical sympathy with its 
 own growth. But these papers are simply for the 
 presentation of a few fadls with the hope of eliciting 
 more facets, so that all the facets of Yale's position 
 and necessities may be known to the alumni. 
 
 Between 1792 and 1834 sundry ac^ts were passed 
 by the legislature to accommodate old provisions 
 to the new constitution of the state and to make 
 efFe(?tual the state's grants. There is nothing in 
 these a6ls to change the fundamental provisions of 
 the charter of 1745, though one most important 
 fa6l must be noticed. 
 
 The new state constitution was adopted in 1818, 
 one year before the decision in the Dartmouth case. 
 One of its clauses is as follows : " The charter of 
 Yale College, as modified by agreement with the 
 corporation thereof, in pursuance of an a(?t of the 
 General Assembly, passed in May, 1792, is hereby 
 confirmed.'' The question naturally arises, does 
 this confirmation in a distin(?t article of the consti- 
 tution operate to make the charter such a compo- 
 nent part of the constitution that its terms can 
 36 
 
only be altered in the manner the constitution pro- 
 vides for its own revision ; that is, by submission 
 to the people on a two-thirds vote of the assembly. 
 If this be so, then all college legislation since 1818, 
 not consistent with the charter of 1745 as modified 
 in 1792, is void. But as such legislation has taken 
 place, it must be concluded that in the opinion of 
 Connedlicut lawyers and legislators the article in 
 question was only an announcement on the part 
 of the people of the state that they took Yale Col- 
 lege under their particular care and protedlion. 
 That no amendment to the constitution has been 
 offered confirming the charter of Trinity, formerly 
 Washington, or of Wesleyan, emphasizes this dis- 
 tin(?tion. Yale is preeminently the state's insti- 
 tution. Or it may be that the article was intro- 
 duced for buncombe ; as a sop to the Puritan 
 clericals who, as is well known, were bitterly 
 opposed to the new constitution as they recognized 
 in its adoption the termination of their supremacy 
 in civil matters. 
 
 Another point. If the charter be part of the 
 constitution, then it certainly cannot be regarded 
 as a contra6l under the Dartmouth case, for the 
 free a6l of a people as expressed in a constitution 
 has nothing in common with a contract. 
 
 The fourth se6lion of the first article of the con- 
 stitution is also of importance in the matter under 
 
 37 
 
discussion. It reads : " No preference shall be 
 given bj^ law to any Christian sedl or mode of 
 worship." The existing government of Yale is in 
 violation of this fundamental law of the state. 
 
 The next a6l of general interest is the adl of 
 1838. The important part of the a6l is as follows : 
 ^' Whenever there shall be present at any future 
 meetings of the corporation of Yale College a 
 majority of the fellows thereof, such majority shall 
 constitute a quorum for the transaction of business, 
 provided there be present a majority of those who 
 are by eledlion successors of the original trustees 
 thereof This was a great victory for the cleri- 
 cals, as it enabled them to proceed to business, 
 without the presence of the four state members, 
 whose presence was required by the adi of 1792. 
 It also, by requiring the presence of the clerical 
 members, took from the other members all power 
 of contributing to the formation of a quorum. For 
 instance ; if the Governor, the Lieutenant Gover- 
 nor, and their six ^'assistants'' were present, and 
 but two clericals, this would constitute a majority 
 of the whole body. But they could not proceed to 
 business till four more clericals had arrived ; that 
 is, without the presence of a majority of the cleri- 
 cals. The state members must have grown very 
 careless in the discharge of their duty to make 
 such a law necessary, and state legislators must 
 38 
 
have grown lax in the discharge of their duty to 
 make the passage of such a law possible. This 
 surrender of state interest and superintendence is 
 the worst piece of legislation in the history of the 
 institution. Thereafter and ever since the clericals 
 have had their own way. Their discussions are 
 held behind closed doors. Their adls are shrouded 
 in darkness. Their fiats alone come to light. 
 Attendance on the part of the state members 
 naturally fell off till it virtually ceased. 
 
 From 1838 till 187 1 there does not seem to have 
 been any legislation of public interest. The cleri- 
 cals were in full swing. The college could not 
 help having a share in the general growth and 
 prosperity of the country. Besides, the Congre- 
 gational church was still large and influential, and 
 modern notions were not as yet prevalent. 
 
 About i860 there was a revival of the interest of 
 graduates in the institution. The idea was started 
 that graduates were still members and that as 
 members they had duties and rights ; the right of 
 representation ; the right of knowing how the 
 institution was governed ; how its property was 
 managed ; what use w^as made of their gifts, etc. 
 This spirit once alive soon became so strong that 
 the clericals were forced to recognize it. They 
 undoubtedly thought, '' How can we satisfy this 
 manifestation with the least sacrifice of our own 
 
 39 
 
position?" The device they excogitated was so 
 clever that graduates are still admiring the astute- 
 ness of the clerical intelledl when pushed. It con- 
 sisted in substituting graduates for the " assistant '' 
 state members, leaving the Governor and Lieu- 
 tenant Governor. The clericals knew the state 
 members would be glad to quit positions their care- 
 lessness had permitted to be shorn of power ; and 
 they thought the graduates would be so puffed up 
 with their new honor that it would be quite a time 
 before they discovered its emptiness. They were 
 right in their calculations ; but the time of dis- 
 covery has fully come. 
 
 The provisions of the a6l of 187 1 are well known. 
 The graduates may ele6l each year a representa- 
 tive to serve six years. So there are always six 
 graduate members of the corporation ; bu.t the 
 restri6lions of the law of 1838 subsist, and gradu- 
 ate members count for nothing in the formation of 
 a quorum. 
 
 The law of 187 1 contains moreover the singular 
 provision that the eledlions shall be '' under such 
 regulations as the president and fellows shall pre- 
 scribe.'' As a majority of the graduates are not 
 supposed to be in sympathetic harmony with the 
 clericals, this is very much as if the voting of the 
 democratic partj^, for instance, were to be done 
 under regulations prescribed b}^ the republican 
 40 
 
party. iVs a matter of fa6l not a graduate has been 
 eledled, or probably ever will be, without clerical 
 endorsement. 
 
 Positions are generally bestowed upon such men 
 as Evarts, Depew or Phelps, who regard them as 
 sinecure honors, and who have neither time nor 
 volition to devote themselves seriously to college 
 affairs. Besides, if all the graduate members and 
 the two state officials should combine, the odds 
 would still be ten to eight against them, with a 
 clerical president over all who claims the power to 
 veto the a(?ts of the very body that created him. 
 No sensible graduate will, under the circumstances, 
 allow himself to be put in nomination unless he 
 be backed by the machine and be prepared to run 
 with it. Among the " regulations " " prescribed " 
 by the party in power, s©me are peculiar. 
 
 Every graduate has read the slip he receives 
 each spring inviting him to make a nomination. 
 The slip states that '^ the names of all persons who 
 are nominated by as many as twenty-five eledlors 
 shall be announced after Maj^ ist." The plain, 
 common sense meaning of this is, that if the right 
 to nominate be exercised at all, it must be exercised 
 before the first of May. The legal interpretation 
 of the term ^' after May ist'' would undoubtedly 
 be "^ immediately after May ist," precluding the 
 •reception of votes after that date, and demanding 
 
 41 
 
the announcement of the result as soon after as 
 possible. This is not, however, the interpretation 
 put on the term b\^ the part}^' in power. It claims, 
 and exercises, the right of keeping the polls open 
 as long as it pleases, and of not announcing the 
 result till it is ready. Under such an arrangement 
 all sorts of queer things are possible. For instance ; 
 if on May ist it should appear that no friend of 
 the clericals had been nominated, and a pronounced 
 enemy had, it would not require very much scurry- 
 ing about to secure the few votes necessarj^ to put up 
 against him the party best equipped to smash him. 
 Again, Regulation No. 2. The powers that be 
 proclaim the right of throwing out all ballots of 
 which all the written part is not in the same hand- 
 writing. They don't say they will, they say they 
 may. They propose exercising discretion in the 
 matter. They moreover state that they themselves 
 are to be the judges of the handwriting. As it is 
 not safe for a man nowadays to swear to his own 
 handwriting, think of the power reserved in this 
 " regulation." The editor of the Hartford Cotirant 
 was quite right in stating that it would be far better 
 and easier for the clericals to appoint the graduate 
 members diredlly and immediately. No graduate 
 in opposition can possibly be ele(?ted. He can't 
 carry the handicap. He is a fool to try. Do let 
 
 the ridiculous farce be stopped. 
 42 
 
One point is unanswerable. If representative 
 graduates be admitted to the corporation, the cor- 
 poration by that adl becomes a public and repre- 
 sentative body, and its deliberations must be made 
 public. Otherwise the fundamental rule govern- 
 ing all representative bodies is violated. Gradu- 
 ates have the same right to know how their 
 representatives are representing them, that citizens 
 have to know how their representatives in Con- 
 gress, or in State Legislatures, are performing the 
 duties with which they have been entrusted. 
 
 43 
 
VI. 
 
 The last clause of the a(?t of 187 1 is as follows : 
 '' The acceptance of this a(?t by said corporation 
 shall not operate to make the charter of said cor- 
 poration as heretofore amended, subjedl to repeal, 
 alteration or amendment, without the consent of. 
 said corporation." 
 
 This needs explanation. Certain laws govern- 
 ing corporations were passed in 1845. These laws 
 stand to-day substantially as they were passed. 
 The one to the point provides (G. S. of 1888, page 
 416, Sec. 191 1) that the acceptance of an amendment 
 to a charter '' shall operate to make the original 
 charter and all resolutions amending and altering 
 the same, subje6l to amendment, alteration, or re- 
 peal, at the pleasure of the General Assembly," '' if 
 it be not otherwise specially provided in the resolu- 
 tion." Therefore if this final clause had not been 
 added there would remain no doubt as to the pres- 
 ent power of the General Assembly over the 
 college. 
 
 The objed of the law of 1845 is evident. The 
 people of Connedlicut determined to observe the 
 constitution and to put an end to all monopolies so 
 far as in them lay. A method devised was to pre- 
 vent corporations possessing independent charters 
 44 
 
from changing, or amending them, without surren- 
 der of independence and acceptance of the general 
 corporation laws of the state. The pity is that a 
 saving clause was introduced into the a6l, and that 
 the a6l in its simplicity was not made a part of the 
 constitution. 
 
 As in the college charter of 1745, as already seen, 
 the General Assembly reserved the right to repeal, 
 or disallow, the a6ls of the president and fellows, 
 it does not at first appear why a clause should have 
 been added to the college law of 187 1 which, accord- 
 ing to the reading of the law of 1845, was only to 
 be used in the case of corporations over which the 
 General Assembly had no control, and over which 
 it did not propose to assume control. If, however, 
 it be the policy of the college to ignore the existence 
 of the clauses of the charter of 1745 which give 
 the General Assembly power over it ; if it claim 
 independence of the legislative body ; then, to be 
 consistent, it must demean itself as one of those 
 antiquated and inconsequent bodies, fortunately 
 few in number, which still possess a being inde- 
 pendent of the state by which they are surrounded 
 and nourished. If this be the reason, then the 
 addition of the final clause is but a sorry device to 
 blind the eyes of the superficial enquirer and de- 
 ceive the wits of the careless investigator. It 
 certainly can have no effecft in classing the charter 
 
 45 
 
of Yale with those charters which, like the charter 
 of the Derby turnpike, for instance, are still beyond 
 the reach of legislative a(?tion. This final clause 
 leaves the charter precisely in the same relations 
 to the General Assembly as before the passage of 
 the a(?t. It cannot be that a clause of a law in- 
 tended to make charters amenable to legislative 
 enactments should have the efifeCls of making a 
 charter heretofore amenable no longer amenable. 
 It is more becoming, however, in these investiga- 
 tions to suppose that the parties who drafted these 
 various a6ls were firm and honest believers in the 
 college's autonomy. 
 
 From 187 1 till 1887 no college legislation ap- 
 pears. In 1887 an adl was passed which at the 
 first glance seems insignificant, but which the 
 more closely it is examined the more pregnant it 
 appears. It is worded as follows : '' That the use 
 of the title ' Yale University ' by the corporation 
 existing under the name of ' the president and 
 fellows of Yale College, in New Haven,' is hereby 
 authorized, and all gifts to, contra6ls with, convey- 
 ance to or by, or other a6ls affeCling said corpora- 
 tion, by either of said names, shall be valid ; and 
 the acceptance of this adi by said corporation shall 
 not operate to subject its charter to repeal, altera- 
 tion or amendment without its consent. 
 
 '' Approved March 8, 1887." 
 46 
 
The final clause, being similar to the final clause 
 of the a6l of 1871, needs no further explanation. 
 The body of the a6l confers upon Yale College the 
 privilege of calling itself Yale University whenever 
 it chooses ; and apparently that is the whole of it. 
 College authorities state that the obje(?t of the a6l 
 is to prevent the loss of gifts and bequests from 
 parties w^ho in wills and deeds might carelessly 
 use the word '' University " instead of the word 
 '' College." 
 
 If John Smith tire of his plebeian name and pre- 
 fer to be known as Vanderbilt Astor McAlister 
 Smith no one will oppose his harmless vanity. In 
 fa6l there is a statute expressly provided for such 
 mild eccentricities. If a John Smith keep a store 
 and think the addition of '' & Co." to his name 
 would attra6l more customers, there is no terrible 
 penalty in the way of the addition. i\n explana- 
 tion to the enquiring officials that the addition 
 was for buncombe would be accepted. Not one 
 customer in a hundred would insist upon seeing 
 the '' Co." John Smith would rarely be called 
 on to fib. But if John Smith turn himself into 
 ^' The John Smith Manufa(?turing Company/' then 
 John Smith will cease to be an individual and 
 must have himself properly incorporated. As far 
 as he is a company so far he ceases to be under 
 the laws of persons and comes under the laws of 
 
 47 
 
corporations. By parity of reasoning, when a 
 college ceases to be a college and becomes a uni- 
 versity it becomes subje(?t to the laws governing 
 universities. If there be no laws in a state relat- 
 ing to universities, no university can legally exist 
 till laws be made and provided thereunto relating. 
 If the difference between a college and a univer- 
 sity has been made clear, then it is evident that a 
 college can no more become a university by calling 
 itself a university than John Smith can become 
 the John Smith Manufac^turing Company by 
 change of title and by nothing more. The object 
 of this legislation is becoming obvious. Is it not 
 to spread the laws of Yale College over the other 
 departments of learning bearing the name of Yale, 
 and to confirm the policy by which the absurd 
 spe6lacle is presented of schools of law, medicine, 
 science, and art, controlled and governed by a self- 
 perpetuating body of Congregational clergymen ? 
 And may not its indirect objec?t be to prevent here- 
 after moneys being donated, or bequeathed, to any 
 department of the institution but the one known 
 as Yale College ? Is this not the technical mean- 
 ing, may it not be the latent intent, of the a(?t ? 
 Have any graduates had their attention called to 
 the possibilities of this extraordinary bit of legis- 
 lation ? That the college authorities propose 
 
 regarding the a6l as conferring something more 
 
 48 
 
than the permission to use the name " Univer- 
 sity " at will is evident. It seems, as has already 
 been intimated, as if they proposed regarding the 
 a6l as an a(?t creating a university, and conferring 
 the powers and position of a university on Yale 
 College by confirming it in its control or the other 
 parts of the institution : thus miaking a part 
 superior to the whole and supreme over the whole. 
 The catalogues published since the passage of the 
 a6l are evidence. They bear the title " Catalogue 
 of Yale University." Then comes the list of the 
 faculty and instructors : President, Rev. Timothy 
 Dwight, D.D., LIv.D. President of what? Presi- 
 dent of the university of course. Nothing else 
 has as yet been mentioned. Subsequenth^ appear 
 the pages devoted to the academic department, 
 which, in brackets, is proclaimed to be Yale Col- 
 lege proper. Here the distincftion is clearly in- 
 dicated and the existence of a university apart 
 from the college frankly admitted. President of 
 the academic department — Rev. Timothy Dwight, 
 D.D., LL.D., and so on throughout; his name 
 appearing at the head of each department, and as 
 its president. If he w^ere president of the univer- 
 sity, to begin with, and ex-officio president of the 
 various departments, it might appear a trifle less 
 singular. But he is all these presidents simply 
 and solel}^ because he is the president of the aca- 
 
 49 
 
demic and undergraduate department ; a depart- 
 ment which in scholarship takes rank below all 
 the others. It is difficult to write seriously of so 
 extraordinary a condition. How odd it is that the 
 absurdity of placing one and the same Congrega- 
 tional clergyman over the various schools consti- 
 tuting Yale should never have occurred to Connec- 
 ticut's legislators ! How quickly the incongruity 
 would have been made evident to them if a physi- 
 cian, for instance, had been placed over the theo- 
 logical school ; or a body of lawyers had been 
 placed in charge of the medical department ! And 
 yet the existing condition is no less opposed to 
 common sense. If the adl be allowed to stand, 
 year by year advantage will be taken of it till age 
 has solidified the provisions which in it are vague 
 and obscure, as if put timidly and tentatively. 
 
 The objedl of these papers has been to put before 
 graduates the statutory history of the college. 
 This task seems sufficiently accomplished. There 
 is growing in the minds of graduates a persuasion 
 that the present state of things cannot last much 
 longer. May the present generation live to enjoy 
 the realization of their fondest hopes. 
 
 The clerical answer to objedlions is always: 
 ^^ Who could manage the institution better?" If 
 the a6ls of the corporation relating to the depart- 
 ment with which I was connedled could be exposed 
 50 
 
the rejoinder would be: ^' Who could have man- 
 aged a department Avorse ?" Not for me the task, 
 however, unless on citation ; for even at this dis- 
 tance of time I am sure I could not approach the 
 subje6l dispassionately and with a stridlly impar- 
 tial and judicial mind. 
 
 It is not fair, however, to infer from the condudl 
 of the corporation towards the art department, that 
 the same chara(?teristics have marked its condudl 
 towards other departments. But it is fair to antici- 
 pate from this condu6l the probable attitude of the 
 corporation towards those departments of an Uni- 
 versity which are either not within the sphere of 
 clerical sympathy, or are outside the boundary of 
 clerical inquiry. 
 
 Three things so far are clear : ist, The differ- 
 ence between a college and an university ; 2d, That 
 the state has never surrendered control of Yale 
 College, and 3d, That it is the duty of the state 
 to pass laws for the governing of Yale University. 
 
 Nothing will be done until graduates and others 
 interested in the matter insist upon adlion. They 
 must unite, consult, determine and contribute. 
 Cash is a fadlor in everything now-a-days. Cash 
 to print ; cash to circulate printed matter ; cash to 
 retain the best of legal advice, etc. : even cash for a 
 lobby. It will be comparatively easy to frame a 
 body of laws for Yale satisfactory to nine-tenths 
 
 51 
 
of her graduates ; excepting of course, the clericals 
 and their adherents. In fa(?t so far as opinions 
 have been expressed they all point in the same 
 general direction : 
 
 4 I St, Virtual autonomy of the several depart- 
 ments. 
 
 2d, A central body, call it what you may, com- 
 posed of state representation ; delegates from the 
 several departments ; and an increased number of 
 ele(?ted graduates. 
 
 3d, A chief executive eledled by the central 
 body for a limited number of years. 
 
 These, in the rough, outline the desired reform. 
 
 Many Yale men, however, who have given the 
 subject study, regard the queer and. complex gov- 
 ernment of Harvard as the very best one for a 
 university the country has yet developed. 
 
 Any change would be acceptable which would 
 terminate the denominational character of the in- 
 stitution and admit to the governing board the 
 best intelligence, the widest experience and the 
 highest culture of all branches of American life. 
 
 52 
 
pi-^Tfi/lZ. YALE UNIVERSITY 
 
 GRADUATE SCHOOL 
 
 Bishop Museum Fellowships. 
 
 TWO Fellowships, of the value of One Thou- 
 sand Dollars each, are offered for study and 
 research in Anthropology, Botany, Zoology, Ge- 
 ology, or Geography. The Fellowships are open 
 to men and women, in the United States and 
 other countries, who have completed at least one 
 year of graduate study at an institution of high 
 standing; preference is given to candidates who 
 have already obtained the degree of Doctor of 
 Philosophy or who have otherwise demonstrated 
 their fitness to undertake original research. 
 
 The Fellowships are primarily intended to pro- 
 mote scientific investigation within the Pacific 
 Ocean region. The results of all research must be 
 submitted to the Bishop Museum for publication. 
 
 Applications for these Fellowships should be 
 made to the Dean of the Graduate School of Yale 
 University, New Haven, Connecticut, or to the 
 Director of the Bishop Museum, Honolulu, Ha- 
 waii, before March i, on blanks which may be ob- 
 tained from them, and should be accompanied by 
 
 1 . Official transcript of applicant's academic record. 
 
 2. Reprints of his scientific publications. 
 
 3. Letters of recommendation. 
 
 4. A recent photograph. 
 A statement of the nature of the proposed investi- 
 
Y 
 
 \^- 
 
 YALE UNIVERSITY 
 GRADUATE SCHOOL ^, ^ 
 
 Seessel Fellowship for Research. 
 
 ASEESSEL Fellowship, of the value of Fifteen 
 L Hundred Dollars, is offered for original re- 
 search in Biological Studies at Yale University. 
 Competition for this Fellow^ship is open to both 
 men and women in the United States and other 
 countries. In making the award, preference is 
 given to graduates of universities who have al- 
 ready obtained the Ph.D. degree, and who have 
 demonstrated by previous work their fitness to 
 carry on successfully original research of a high 
 order in one of the three departments of Biologi- 
 cal Studies: Physiology (including Physiological 
 Chemistry), Zoology, and Botany. 
 
 Applications for this Fellowship must be made 
 to the Dean of the Graduate School, Yale Uni- 
 versity, New Haven, Connecticut, before March 
 I, and should be accompanied by 
 
 1. An official transcript of the applicant's academic 
 record. 
 
 2. Reprints of his scientific publications. 
 
 3. Letters of recommendation. 
 
 4. A recent photograph. 
 
 5. A statement of the particular problem to be inves- 
 tigated. 
 
 Application blanks may be obtained from the office of the 
 Graduate School. 
 

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 YALE UNIVERSITY ^^ /r^ 
 
 GRADUATE SCHOOL \ ^\ 
 
 _______ ^o "?>. 
 
 Sterling Fellowships for Research in the Humanistic 
 Studies and the Natural Sciences. 
 
 THE Sterling Fellowships have been established by a gift of One Million Dollars 
 from the Trustees of the Estate of the late John W. Sterling to stimulate schol- 
 arship and advanced research in all fields of knowledge. They are open to graduates of 
 Yale University and other approved universities and colleges in the United States and 
 foreign countries, to both men and women, whether graduate students, or instructors 
 or professors when on leave of absence, who desire to carry on studies and investigations 
 under the direction of the Faculty of the Graduate School of Yale University or in 
 affiliation with that body. 
 
 The Sterling Fellowships are awarded primarily to persons who have had such train- 
 ing and experience in research as is indicated by the degree of Doctor of Philosophy. 
 In some instances awards are made to students who desire to complete their work for 
 the Ph.D. degree. They must, however, be far advanced in their work towards this de- 
 gree and be able to devote substantially all of their time to investigation. Fellow- 
 ships are awarded on the understanding that the recipients shall not engage in teaching 
 during the tenure of appointment. A holder of a Fellowship who has been in residence 
 at Yale University for a year or more, may be permitted in exceptional circumstances 
 to carry on his investigations in part elsewhere. 
 
 The stipends of the Fellowships range from |i,ooo to $2,500 or more, dependent 
 upon the previous experience of the recipient and the character of the proposed inves- 
 tigation. For special purposes, such as completing a specific investigation, awards of less 
 than $1,000 may be made. Fellows who are candidates for the Ph.D. degree are sub- 
 ject to the usual tuition and laboratory fees. All fellows are appointed for a single year, 
 but may be reappointed with or without change in stipend. 
 
 Holders of Sterling Fellowships are required to submit reports on their work, either 
 at stated intervals or at the expiration of their Fellowships ; and when the results are pub- 
 lished they are expected to give proper credit to the assistance they have received as 
 Sterling Fellows. 
 
 Applications for these Fellowships must be submitted by March i, addressed to the 
 Dean of the Graduate School of Yale University, New Haven, Connecticut, on blanks 
 which may be obtained from him. 
 
Pren of Tuttle, Morehouie <fc Taylor, New Haven.