rial was referred to that most respectable Committee, of whom we have already spoken, ten in number, and five of them members of the Overseers. In a question which had been so often agitated by the Overseers, and which now came before them by a memorial of that body, the visiters of the College, the Committee, half of whose number were Overseers, before whom the Corporation had already had at least three opportunities of being heard, proceeded, without calling upon the Corporation for a new argument, to make their report, which was as ample as language could make it, covering the whole ground of the controversy, in the following terms:

"The Committee appointed to consider the Memorial of the Overseers of Harvard College in Cambridge, having perused and considered the Charter granted to the said College, by the General Court of the Colony of Massachusetts Bay in the year 1650, (which is their present constitution,) and also the Memorial aforesaid, came to the following resolutions, which being put in practice would answer the end of the Memorial and be more beneficial to that Society, than enlarging the number of the Corporation.

1. That it was the intent of the said College Charter, that the Tutors of the said College, or such as have the instruction and government of the Students, should be the Fellows and members of the Corporation of the said College, provided they exceed not five in number.

2. That none of the said Fellows be Overseers.

3. That the said President and Fellows of the said College, or the major part of them, are not warranted by the said Charter of the College to fix or establish any salary or allowance for their services, without the consent of the Overseers."

This report was made in the Council. The Council, being Overseers, out of delicacy desired the House to act first. The House accepted the report, and passed a resolution in conformity. The Council (a majority of the Overseers) concurred, and the Governor signed his name to the resolution, adding, however, a proviso, that the three present non-residents should not lose their seats. This proviso was unconstitutional, the Governor having no power with regard to bills, but to sign them or not sign them. For, if after signing,-which completes the enactment, he had power to subjoin a proviso inconsistent with the terms of the act, he would possess himself the sole power of repealing or suspending laws. The proviso was absurd, for what can be more idle, than for a governor to sign a law, subjoining a proviso inconsistent with it. The only course

he could reasonably and constitutionally have taken, would have been, to return the bill with his reasons, leaving the Houses to re-enact it, with the proviso, if they chose.

On the point of this proviso, the House and the Governor went into a war of messages, in the progress of which the Council, as was to be expected, fell in with the Governor; but adopted at first the course of postponement, rather than break with the House by a non-concurrence. After some delay, Messrs Sever and Welsted, whose rights were at stake, urged the House by a memorial, and the House urged the Council to proceed. The latter, backed by the Governor, still held out; the Corporation, now stepped in, and wanted to be heard; the house refused, and, on a repetition of the request, refused unanimously; the Council then alone gave the Corporation the opportunity of a hearing, the fourth which they had enjoyed before that body, and then non-concurred in the resolution of the House.

How then was the thing settled? In point of strict law it was settled in favour of the Tutors. For the Governor's signature constituted the resolution of the two Houses a law, which his proviso could not repeal; and which no subsequent law has repealed. In point of form, in consequence of the controversy about this proviso, it was never settled at all. The law was signed, though with a proviso; and no legislative act was ever passed repealing that proviso, nor did the Governor ever recall it. But how was the principle settled? By unanimous consent in favour of the residents. The Representatives, the Council, the Governor, the Overseers, (for the Governor stated, that they had advised him to sign with this proviso,) every man in fact in Massachusetts Bay, with the exception of the majority of the Corporation, was in favour of the principle. How was the fact settled? By choosing Tutor Robie to the first vacancy in the Corporation, Professor Wigglesworth to the second, and Tutor Sever to the third.

We have an additional remark to make with respect to the hearing, had by the Corporation before the Council, and the supposed effect of that hearing, in procuring the non-concurrence of the Council. It has been said, that in this hearing, the Corporation brought forward important and convincing matter from their old and now lost records, and that the effect was decisive in their favour. But, as we have seen, the disagreement had already arisen between the House and the Council, the latter naturally taking the government side. The Council had already for two sessions eluded the resolution of the House, by postponement.

As to the facts supposed to have been brought forward by the Corporation, their memorial, which was read at this hearing, is still in existence, and speaks for itself. A duller piece of prose we never perused. Instead of containing, from records now lost, important matter bearing on the question; it does not give nearly the strength of the argument on their own side, as it may be stated at the present day. We hazard nothing in saying, that in any one paragraph of Mr Justice Story's speech, there was more cogent argument on the same side of the question, than in all this memorial. And reason good. The Corporation did not appeal to their ancient records for any facts, because the facts were against them. Why did they not produce a list of non-resident Fellows under the first Charter; would they not have done it if they could? Why did they not name Mr Danforth's case? There were living, those who took their degrees before his death. We submit to the impartial, that this negativé testimony is very strong to the absence in the ancient records of any facts in favour of their argument.

An opinion can now be formed, how justly these transactions, from first to last, have been ascribed to the uneasiness of two discontented Tutors, assisted by an "unholy faction" in the House, countenanced by the Council, till the opposite side of the question was heard, and then put down. It can now be judged with what propriety the result is called a triumph for the Corporation.

During the discussions, an event took place, which had nearly settled the question on a safe basis, by a salutary precedent. The professorship of Divinity was founded. A chief objection, no doubt, to the introduction of all the Tutors into the Corporation had been, that most of them were, from the nature of the case, young men, not permanently settled at College. The foundation of a professorship provided for the permanent establishment of an instructer of higher rank; Mr Wigglesworth was immediately chosen a Fellow of the Corporation; and a law was passed, and for seventy years observed, that "the Professor of Divinity should always be a Fellow of the Corporation."* The next professorship founded was that of Mathematics and Natural Philosophy. The first incumbent on that foundation,—however

Such a law very strongly illustrates the sense, which even the Corporation had of the expediency of resident members of that board, whenever individuals of age and permanent tenure in office could be procured. They did not content themselves with electing the Professor of Divinity, but ordained that this professor should always be a member of the Corporation.

skilful in his department,—was not of a character to fit him for the Corporation, and the precedent of the Professor of Divinity was not followed. Still, however, a sort of compromise prevailed, by which sometimes three, and generally two of the Corporation, were resident, till the period of the revolution.

It remains only to consider the argument against the Memorial, drawn from the guaranty of the privileges and property of the Corporation, by the Constitution of the Commonwealth. It is said, that when this guaranty was made by the people, four out of five of the Fellows were non-resident, and this argument is pronounced irresistible. We apprehend it to be

otherwise.

The Constitution confirms "the President and Fellows of Harvard College in their corporate capacity, their officers and servants, in all the powers, authorities, rights, liberties, privileges, immunities, and franchises, which they now have, or are entitled to have." No persons are named; no persons are confirmed in the office of President or Fellows. Though each of those offices had been vacant, not a word would have required to be altered in this chapter of the constitution, which would still have guarantied to the President and Fellows the rights which they now have or are entitled to have. It was not surely the object of the framers of the Constitution to sift the titles of the corporators individually to their seats. There would have been inconsistency, nay, possible contradiction in it. For having confirmed and established the Charter, it was conceivable that by the conditions of the Charter, some one or more of the Fellows were not entitled to a seat. To say that the actual incumbents were confirmed as Fellows, is to say, that, in the very moment of establishing the Charter, the Constitution declared that its provisions should not be enforced, if they happened to militate with the continuance of any one of these five gentlemen in their The Constitution confirmed the citizens of the state, each in the enjoyment of his property. Can it be supposed that such confirmation was designed as a bar to legal investigation, in each single case, who might or might not be in rightful possession? The very terms of the grant to the Fellows go only to their "authorities, rights, liberties, privileges, immunities, and franchises," not to wrongs, abuses, or violations of Charter. The question, therefore, remains to be settled, what their rights were? It is too much to say that the Corporation were confirmed in any thing and every thing, they might happen rightfully or wrongfully to claim or actually possess.

seats.

Further, taking this confirmation in all its parts, it is by no means the unconditional and unlimited grant, that it has been represented. The donations of the various benefactors to College are confirmed, not simply and positively, but "according to the true intent and meaning of the donor, or donors," &c. And shall the true intent and meaning of every little gift, of a few acres of land and a few pounds of money, be sacred, and the true intent and meaning of the Charter itself, the great gift, the foundation of all others, the government's gift, shall not that be respected? Moreover, at this day, when there are no Fellows but those of the Corporation, how, we would fain be informed, is the enacting clause of the Charter fulfilled, which declares one of the objects, for which the Charter was given, to be, "the maintenance of the President and Fellows?" Is any one of the five Fellows now maintained, in whole or in part?

Again, the Constitution, after this so much cited confirmation, provides, that "Nothing herein shall be construed, to prevent the legislature of this Commonwealth, from making such alterations in the government of the said University, as shall be conducive to its advantage, &c.—in as full a manner as might have been done by the legislature of the late province of Massachusetts Bay." Now the most signal and notorious instance of interference, exercised by the provincial legislature, was that of 1722-23, when they asserted the intent of the Charter against its actual interpretation. No one doubted their right to take this course. It was not alleged by the Corporation, that they exceeded their powers; the Council, forming a majority of the Overseers, concurred in the act, by which the house of representatives had set up the intent against the received interpretation of the Charter. Now the Constitution reserves to the legislature all the powers of the provincial assembly; and therefore reserves to it the power of saying that the Fellows ought to reside. The Constitution of the State has not therefore immutably guarantied the non-residence of the Fellows.

We have now gone through the main argument. We designed to follow Mr Ticknor through that part of his remarks, where he separately inquires, whether a Fellow must be resident, must instruct or govern, and must receive a stipend ;—and answer in the negative, except to the last inquiry. The argument principally turns on the usage of the English colleges, and the memorialists are represented as reasoning from the alleged nature of fellowships there to a similar import of the office of fellow here. It is sufficient, however, if the memorialists show that Fellow was a