whereas to examine critically, and to fix in the memory a very great number of important cases printed at the same time, is no trifling task for the intellect. We make these intimations with perfect friendliness to the state-reporter, whose interest we think would be materially promoted by the change; and who, in the volume which he has already published, has discharged his duty in such manner as to deserve the applause and confidence of the profession.

Reform of Harvard College.

[Concluded from page 171.]

IT may fairly be asked, in what way the change from residence to non-residence of the Fellows of the College proceeded. The earliest records are known to be imperfect, but we shall state our view of this subject. The Charter provided five Fellows, besides the President and Treasurer. Five Fellows with the President were, of course, not wanted for instruction; and two or three of the Fellows must have either been employed in other small posts of the College, or have been merely resident graduates. The funds of the College were exceedingly limited; and it must have immediately appeared, that all that could possibly be compassed, was to support the President and such Fellows as were needed "to carry on the College work." The first step therefore probably was, to leave vacancies in the Corporation unfilled. We find, in 1664, but four Fellows, and in 1667, but three. Up to 1672 (with the exception of Mr Danforth's case, which has been considered, and Mr Mather's, who left the country a month or two after the Charter of 1650) we find on the list of Fellows contained in the College Catalogue, no one supposed to be nonresident. Even Mr Mitchell, one of the charter Fellows, who became the minister of Cambridge, ceased to be a Fellow. In the Charter of 1672, the ministers of Cambridge, Roxbury, and Charlestown (the three nearest, before the erection of the Boston bridges), and the two Tutors were constituted the Corporation. It is very important to observe, that when non-residence, on the part of the Corporation, began, it was not to the exclusion of the resident instructers. The two Tutors were, we believe, without exception, members of the Corporation up to 1697, as were also two individuals, severally called "a probationer Fel

low" and a "Fellow on the place," either immediately on their election, or shortly after. The authority of Randolph, that there were in 1676 four Fellows with salaries, who were also Tutors, is quoted, to prove, that at this time, there were Tutors who were not Fellows; it being certain that three of the Fellows were then non-resident. But as to the number of Tutors, Randolph is evidently in error; for it was about forty years later, before they amounted to four. In 1697, the College, having considerably increased, a third Tutor was chosen. The then existing Charter, one of President Leverett's " precarious Charters,"-creating a Corporation of fourteen, of which two Tutors only (all that there were, when the Charter was framed) were members, the third Tutor, when elected in 1697, was not a member of the Corporation. It being the practice, after Fellows began to be chosen out of the limits of the College, to make the pastor of the church of Cambridge one, and the Treasurer being also for a long time a resident of Cambridge, five out of the seven members of the board resided in or near the College walls, and three of these five being for a long time the whole, and for a much longer time the major part of the resident instructers, the evil of non-residence existed in a very mild form; and as a very striking illustration of this, it may be added, that no separate record of the immediate academic board, apart from the records of the Corporation, was kept, we believe, till the close of President Leverett's administration. We have already stated, that so late as 1707, the technical names of these two sorts of Fellows were not fixed; for President Leverett calls Mr Hobart, the settled minister of Newtown, a Fellow of the house; and Hutchinson, apparently quoting the public records, says, that the College was put under President Leverett, "agreeably to the choice of the Fellows of the house, approbation of the Overseers," &c.* For the first years of Leverett's presidency, there were but three Tutors; and two of them were members of the Corporation. It was not till the fourth Tutor was chosen; and an attempt was made by the Corporation to limit the election of "Fellows of the house," as they now called them, to three years, that the question began to be sifted, whether the ancient Charter, so long disused and violated, had in 1707 been restored in whole or only in part.

There were three topics, in reference to which this question was agitated. As the whole subject is closely connected with

*Hutchinson. I. 175.

the argument, and has not been stated in any of the publications, we shall lay before our readers a rapid but faithful sketch of the course of proceedings.

In the beginning of 1722, the five Fellows of the Corporation, so called, were Dr Appleton of Cambridge, Dr Colman and Mr Wadsworth of Boston, Mr Stevens of Charlestown, and Mr Tutor Flynt. There were three other Tutors not members of the Corporation. Mr Stevens of Charlestown died, and the Tutors preferred a memorial to the Corporation and Overseers, praying that the vacancy might be filled up by a resident. The memorial to the Overseers was presented to that body, by Chief Justice Sewall, the oldest Counsellor, in early life for many years a resident Fellow of the Corporation, a graduate under the old Charter of 1650, at the time of which we speak Chief Justice of the Supreme Court, on the bench of which he had sat thirty years. By him was the memorial of the resident Tutors presented, and to a committee, of which he was chairman, was it referred. On the 23d of January, 1722, the Corporation met to fill up the vacancy; and, disregarding the claim of the residents, adroitly chose the Rev. Dr Sewall of the Old South, the son of the Chief Justice, who, as chairman of the committee of the Overseers, and from his great weight of character, might be considered as holding the fate of the Tutors' petition in his hands. Dr Sewall was presented to the Overseers for concurrence. The Overseers thought it neither "indelicate nor unwise," to entertain the question submitted to them by the residents, and returned for answer to the Corporation, that they had received a memorial on the subject of the vacancy, and must await the result. On the 9th of March ensuing, a report was presented by the venerable Chief Justice, that "the Overseers judge it proper that the vacancy in the Corporation be filled up by the election of a resident Fellow." This report was debated in the Overseers, of which body Dr Colman, Dr Appleton, Mr Wadsworth, and President Leverett, being four out of six of the Corporation, were also members, and of course enjoyed an opportunity of being heard against it; nevertheless the report was accepted by the board.

This report, thus accepted, was sent down to the Corporation; they entered a protest against it in their journals, but nevertheless chose Mr Tutor Robie.

Here then (to pause a moment in the narrative) is a full precedent, of one hundred years standing, in favour of the memorialists at the present day. A vacancy existed in the

Corporation; the Tutors address the Corporation and the Overseers, and tell them they think the Charter intended the members of the Corporation to be resident; the Corporation, disregarding their statement, choose a gentleman of signal piety and prudence, the pastor as well as the son of the chairman of the Overseers' committee, to whom the Tutors' statement is referred; this committee report, that it is proper to choose a resident Fellow; and the Overseers, instead of concurring in the choice made by the Corporation, adopt this report, against which four out of the five surviving members of the Corporation, had the opportunity of being heard; and in consequence of this step a Tutor was chosen. And yet it is constantly said, that when the pretensions of the present memorialists were started one hundred years ago, as soon as the Corporation were heard, they prevailed. But to return to the narrative; the Overseers were not satisfied with an acquiescence in fact, on the part of the Corporation, which was guarded by a caveat as to the principle. Accordingly, when Tutor Robie's election came up from the Corporation, the Overseers refused to confirm him, till the subject of the Tutor's memorial was settled on principle. At this meeting of the Overseers, the non-resident members of the Corporation were present, they were heard against the Tutors' petition in a long debate which arose, and the Governor broke up the meeting without any decision.

On the 28th of April, the controversy returned in another and slightly different form. The Corporation, in the gradual progress of assuming power, had introduced a rule, that Fellows of the house, as they were now called, should be subject to a triennial re-election. Mr Tutor Sever's second term of three years expiring on the 28th of April, the Corporation voted (such are the pains and penalties of memorializing) that he should no longer be a Fellow of the house. This gentleman had already been a settled minister at Dover, New Hampshire; an impediment in his speech induced him to leave the desk, and he is the same individval who afterwards, in a civil career, reached the years and reputation of a patriarch, in Plymouth county, the Honourable Nicholas Sever. This "discontented Tutor," as he has been called in this discussion, in a pet at being turned out of his daily bread, presented a memorial to the Overseers, invoking their protection. Previous to the meeting of the Overseers, the Corporation met and took order for a counter memorial. On the 13th of June, the Overseers met, the subject was considered, the Corporation, by the non-resident members of it, again enjoyed

the opportunity of being heard, and the question was settled by the vote of the Overseers, "that the said Mr Sever still continues a Fellow, notwithstanding what has been done with reference to him by the Corporation." When this vote was sent down to the Corporation, they protested, entered a saving clause, and submitted.

Here we may pause again in the narrative, to point out a second distinct precedent in favour of the memorialists of the present day. The Corporation undertook to act upon their distinction fixed, but not yet well rooted, of Fellows of the Corporation and Fellows of the house, by subjecting the latter to a triennial re-election by the former. The Overseers, justly feeling that there was no authority in the Charter for a triennial re-election of Fellows, resisted the attempt to put it in practice. But if, as is now urged, a Fellow of the house was merely a Tutor, no reason, good or bad,-can be given, why the Corporation might not elect him triennially or oftener.

But the Overseers felt the perplexity of the state, in which the College stood. By acting in concurrence with the Corporation, consisting, as it did, of a majority of non-residents, they recognised them as a legal Corporation; at the same time, that when the question was formally presented to them, they had decided that the Tutors were Fellows by permanent tenure, and that it was proper to fill vacancies in the Corporation by choosing residents. It was not easy for the Overseers, under the provisions of the Charter, to extricate the College or themselves from the confused situation, into which silent encroachment on the principles of the Charter had brought them. Two courses presented themselves, one to procure a new Charter, enlarging the Corporation, so that the residents should be brought in; the other simply enacting that the old Charter of 1650 should be rigidly enforced, and that the resident Fellows should be the Corporation. A majority of the Overseers, and even the non-resident members of the Corporation (as they say themselves in their memorial the next year) were in favour of the first course; the public, and especially the profession, of the second. The thing had been long debated, the non-resident members of the Corporation had had an opportunity of being heard on three several occasions upon it; and it was ripe for legislative decision. The Overseers sent in a memorial to the Court on the 13th of June, praying that the number of the Corporation might be enlarged, and that in so doing regard be had to the resident Fellows or Tutors, that they be of the number." This memo