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lor of arts had his license prælegendi, of lecturing; the master of arts his license profitendi, of being a professor, in a science. And does any one suppose that fellowships, although foundations for learners, were inconsistent with receiving or exercising these licenses to teach? Indeed, the very suggestion, that because a man was to be a learner, he was not therefore proper to be a teacher, is one we should scarce have expected in the quarters where it has been made. And as little could we have expected that it should be argued, on one and the same side of a question, that fellowships in the colleges were foundations for learners, and yet carried no design of residence.

We now turn to a second source of argument, by which the technical sense of the word fellow in Harvard College charter of 1650, is shown, viz. the previous use of the word in Harvard College itself. This institution was incorporated in 1642.* The institution had in its origin been a school, under the government of a master and usher. A year after it had been incorporated, as a College, with a President and Overseers, (viz. in 1643,) we find an order of the Overseers appointing two Bachelors" to read to the junior pupils, as the President shall see fit, and to be allowed, out of the college treasury, £4 per Ann. to each of them for their pains." It is highly probable therefore, that at this time, the name of Fellow had not been introduced. But two years after, 1645, "the Fellows' orchard" was given by Mr Bulkley and Mr Day to the President of Harvard College, and it was "ordered that the same should be for the use of the Fellows, that, from time to time, should belong to and be resident at the said Society." It seems therefore incorrectly stated that this term was first used in Harvard College about 1647, since a bequest for the use of the fellows was made in 1645. We next find them mentioned in 1647, in a conveyance of a real estate in Boston, which the tenant, after the expiration of his lease, was to surrender up to "the President and Fellows of Harvard College." This proves that the fellows were, at this time, trustees, authorized to hold the College property, an authority which they could have derived either from the

* Mr Lowell, in his first pamphlet, denies that it was incorporated till 1650. Judge Story, in his speech, was very particular in calling the Act of 1642, an incorporation. It is even called so by Hutchinson, who wrote after the charter of 1650 had in popular use got to be considered, almost technically, as the incorporation.

Overseers or the General Court. They were not therefore, as has been maintained, mere nominal, titular personages, poor graduates, supported in part to pursue their studies. From an address of President Dunster to the Commissioners of the United Colonies, the same year, 1647, it is proved that the President and Fellows administered the discipline of College; and a proposal is made for the permanent establishment of fellows, to be paid by tuition fees. This proposal the Commissioners refer to the General Court of Massachusetts Bay. The term fellow therefore was one already well known in Harvard College, in the sense contended for by the memorialists. The point could be illustrated much more at length, but what we have said, is decisive.

Let us now look at the charter of 1650, and the legislative acts that followed it. In pursuance of the hint of the Commissioners about two years before, the President applied to the Court, soliciting another act of incorporation, not to supersede the former, but to ordain the maintenance and prescribe the powers of the President and Fellows. The Court agreed to grant an act of incorporation, provided the persons designated were meet, "not magistrates, who are to be judges in points of difference [being Overseers], nor ministers, who are unwilling to accept thereof."

The Charter, with this proviso, was given. It sets forth, in its preamble, that "sundry gifts, legacies, lands, and revenues," have already been bestowed, among other objects, "for the maintenance of the President and Fellows ;" and it enacts that, "for the furthering of so good a work and for the purposes aforesaid," the College shall be a corporation consisting of seven persons, viz. a President, five fellows, and a

treasurer or bursar.

Now, how are these words to be construed? Within the space of ten lines, we meet the word fellow twice. We have shown that, in the preamble, it meant a resident instructer supported by tuition fees, or by the gifts, legacies, lands, and revenues, bestowed for their maintenance; the enacting clause states, that for the furthering of the work, and the purposes aforesaid, the College shall be a Corporation consisting of seven persons, a president, five fellows, and a bursar. What ground can there be for supposing, that, when used the second time, after a phrase of reference to the first, the meaning is totally changed? That in the preamble, the word means a resident, a stipendiary, an instructer, an immediate governor; and in

the enacting clause, it means something totally different? The memorialists did not argue (as was charged on them), that the word Fellow, of itself, meant any thing. Such a proposition would have been senseless. The meaning of all words is ascertained by their use and connection. And the memorialists contended, and, as we think, have proved, that the word fellow, before the charter of 1650, had a determinate meaning, ascertained by the usage of the College; the acts of the Overseers, of the Court, of the Commissioners of the Colonies, of the Registry of deeds, if there was one so early, and on the books of the treasurer;-and in this meaning of the word it is used in the preamble to the charter.

Several legislative acts followed the charter, at short intervals. In 1652, a contribution was recommended by the Court, for "the maintenance of the President and certain Fellows;" because, though the number was fixed at five in the charter, it was free for the court to alter the number, whenever they chose, and free for the Overseers to distribute the contributions as they chose. In 1653 two thousand acres of land were granted for "the more comfortable maintenance and provision of the President, Fellows, and Students." In 1653, a commission was raised to inquire into the state of the college stock, in reference to the yearly maintenance of the President and Fellows, to "examine what has been paid, and disbursed either for buildings, repairing, or otherwise paid or reserved annually, for the maintenance of the President, Fellows, and other officers," "to consider what number of Fellows may be necessary for carrying on the work of the College, and what yearly allowance they shall have, and how paid;" in order that the Court, if needful, might contract or enlarge the number, as they did in 1692, 1697, to the Corporation, and in 1690, 1780, and 1810, to the Overseers. At the close of the same year, on the return of this commission, the court ordered the proceeds of the public contribution to be "for the maintenance of the President, Fellows, and other necessary charges of the College, and the several yearly allowances to the President and Fellows to be proportioned, as the said Overseers of the College shall determine." In 1654 a yearly grant of one hundred pounds for the behoof and maintenance of the President and Fellows "to be distributed between the President and Fellows, according to the determination of the Overseers of the College." In like manner, several private grants are on record; one of which gives a piece of real

estate to "the President and Fellows" of the said College, as long "as they profess and teach the knowledge of God's holy word," &c. Now how is this mass of evidence met, we will not say answered? By alleging that the word fellow had, at this time, two totally different meanings, changing from one to the other, not merely as used in public acts and private grants; but from year to year, in the doings of the General Court; nay, from line to line, in the same instrument. So far has this been pushed, by creating a new kind of fellows for every occasion in which the argument of the memorialists must be met, that four different sorts of fellows have been imagined in our infant College, viz. persons who were fellows alone of the Corporation; those who were simply teaching fellows; thirdly, those who were fellows in both senses; fourthly, those who were fellows in neither, a kind of inexplicable tertium quid, or rather quartum quid, who are inferred to have existed from "an entry of the 6th of May, 1650," that is, previous to the charter. We might argue much at length against such a plan of interpretation, but we will make one observation, which entirely overthrows it,-which demonstrates its incorrectaess. Let it be remembered then, that the proposition that we would disprove is, that the fellows, for whose maintenance this public and private provision was made, were merely titular fellows, not the members of the Corporation, who were intrusted with the management of the funds and the appointment of salaries. Were this proposition correct, we should find, of course, that the distribution of the funds for the maintenance of the teaching fellows would have been left to the corporate fellows, this being a leading object of the incorporation. Now instead of that, it is expressly left to the Overseers. Is it conceivable that, if between the teaching fellows and the Overseers there had been another body, incorporated expressly to manage the funds and apportion the salaries of the officers, the Court, who had just created that body, would now have robbed it of its functions, and given them to the Overseers? It is not conceivable.

But we will state this case a little more strongly. The name is a very important thing in a Corporation. It is "the very being of it, without which it could not perform its functions."* President and Fellows is the name given in the charter to the Corporation of Harvard College. No gift for the

* Gilbert cited by Blackstone I. 474.

maintenance of the President and Fellows, could legally be applied to the maintenance of any other persons (whether called fellows or not), than the persons who composed the Corporation, called the President and Fellows. And even if a bequest or grant were made intentionally for some other sort of fellows, and yet were inadvertently expressed to be for the maintenance of the President and Fellows of the College, the latter, and no one else, would take. Now when we see the court in 1650 incorporating the President and Fellows, and in 1653 and 1654 making grants for the maintenance of the President and Fellows, it can only be that Corporation, which is to be maintained; and when we add that the Overseers, (and not the Corporation, as would have been the case, had another kind of fellows been the object of the grant,) are directed to apportion it among the President and Fellows, we really cannot see how any thing could be added to the strength of the argu

ment.

But the memorialists contended that in the terms of the enacting clause, it was prescribed that the Fellows must reside; for it is said, the College at Cambridge shall be a Corporation of seven persons. Mr Ticknor rejoins to this argument, that it implies that the President and Treasurer are bound to residence, which "I believe," says he, "is by no means insisted on in the Memorial." It is not insisted upon; we believe not mentioned. But residence is unquestionably obligatory on both those officers, as well as on the fellows. When in 1706, the Fellows of the College petitioned to have the election of President Leverett confirmed, they added the prayer "that according to the ancient rules of their house, the future heads of the College may be resident." There is no other rule preserved among the ancient college laws, than what the charter contains, which binds the President to residence; and it is undoubtedly this which is referred to. "But," says Mr Ticknor, "this argument, whatever it implies, is simply a mistake in point of law. Nothing is better settled than that a Corporation, like that of Harvard College, has no place of commorancy although the Corporators may have," and he cites in proof, 2 Mass. Rep. 544. The case in 2 Mass. Rep. referred to, is the County of Lincoln vs. Isaac Prince; and it might admit a doubt, whether the County of Lincoln be "a Corporation like that of Harvard College," to such a degree of similarity, as to make the law equally applicable to both. But what the memorialists are supposed to have been igno

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