The memorialists speak of their claim, as a matter of "chartered right." Fairly weighed, perhaps, in the context of the Memorial, these terms do not ill express the ground on which the memorialists meant to rest their pretensions. But they do not appear to have been aware, that, in considering a claim resting on a written document, there are always two questions; the first, What do the terms of the document, in legal obligation, convey? which is a question that the courts of law settle on their own principles: the other, What was the intention of the instrument? and this must be ascertained by very different rules of research and analogy. There is no kind of doubt, that the law aims to enforce the intention as a general object. There is as little doubt, that all instru ments-some more and some less severely-are legally interpreted by certain technical rules and forms. Now it is very plain that, in the case in hand, the memorialists argued to the intention; and the Overseers, and the members of that body who opposed the Memorial, argued to the law. Nay, some of the arguments were such as went to prove, that although the charter had formally given the right to the memorialists, they do not now possess it. We allude to the argument, that the Constitution of the State, being a sovereign organic law, recognized the non-resident Fellows.

The object of the Memorial, as stated in the first sentence, is to show "the mode in which, according to the charter of the Institution, the Corporation ought, of right, to be constituted." If there be any difference, then, between a rightful and a legal claim (and who can deny it); if it be possible, that the charter can be proved to have intended what, nevertheless, it did not make legal provision to enforce; if silent encroachment, grown at length into prescription, have sanctioned a different construction, where so much depends on construction; or if, finally, an instrument of sovereign power,

* In the debates on the subject of the College, in the Massachusetts Convention for Revising the Constitution, Mr Webster very justly observed, "That the original laws and charters were very short and imperfect, and that much was left to construction." This sentiment was quoted in the Memorial. Mr Lowell, in reply, p. 19. pronounced the College charter not to be one of those thus characterized by Mr Webster. This, however, is a mistake. The College charter is the very instrument of which Mr W. was speaking, and to which the remark is applied by him.

like the Constitution of the State, have put the seal upon all which it found in existence; and if, in consequence of any or all of these circumstances, the original intention of the charter cannot now be enforced on legal grounds,-while the question of law is settled against it, the question of right, according to the intention of the instrument, remains unaffected; and this is evidently the question which the memorialists discuss. They do indeed appear to have supposedand who that has ever watched the progress of an important lawsuit could doubt it-that the purely legal question might bear an argument on both sides, could it be fairly brought into court, by counsel learned in the law. But they could not themselves undertake to discuss it on technical principles.

With these views, it is of course unnecessary to say much on the purely legal question. Considering the high legal character of the gentlemen who led in the discussion against the Memorial, it may be considered that this question is settled, as far as authority can do it. Law characters, whose opinions would be thought decisive on almost any pointwho, some of them in stations far more important than that of an Overseer of the College, do pronounce, and in pronouncing, settle the law in questions closely concerning life, rights, and property, have settled that the claim of the Memorial has no legal foundation. Mr Justice Story particularly stated, that it was this proposition which he should attempt to establish; and he was followed, on the same side, by other gentlemen of the highest authority. Mr Ticknor observes, that the decision made in conformity with this authority, has been universally acceptable, particularly to the members of the profession of the law. We are not disposed to controvert it. It is true, we have never met with a single individual (beyond the parties to the discussion) either in the profession or out of it, who had read the documents and collected the arguments, sufficiently to understand, or to profess to understand, the whole of the case. But it is precisely under these circumstances, that the authority of learned and upright men ought to prevail. With this qualification, we do not profess a blind allegiance to authority, not even in the law. To allude to a case somewhat in point, the famous one of Phillips and Bury. By the authority of the three puisne judges, the law was settled against Chief Justice Holt. In this country, that decision would have been final, for want of

as

a higher Appellate Court. In England, it went to the House of Lords; the judgment of the court below was reversed, and that of the Chief Justice became, and remains, the rule of law relative to visitation.* In the recent history of Harvard College itself, we may learn that legal authority is not infallible. In 1810, an act was passed by the General Court, to alter the Constitution of the Overseers. That act is understood to have been drafted under the direction of the late Chief Justice Parsons, a lawyer of as great ability ever lived in this, or perhaps any country. It was supposed, as it was designed by him, to put the College forever after beyond the reach of the legislative power of the Commonwealth, except so far as the same should be exercised by consent of the Corporation and Overseers. That such was the legal effect of this act is maintained in a document addressed by the Corporation to the General Court in 1812, evidently written by the Chief Justice, and equal (we are sure there is no disrespect in the remark) for legal acuteness and cogency of argument, to any thing which has been written or spoken against the Memorial. But the late Mr Dexter, not to name distinguished living counsel, thought otherwise; and this law, whose duration and power were to know no end, was repealed in two years. Again, we can quote the highest legal authorities to prove, severally, that the Corporation, the Overseers, and the General Court, are the visitors of the College. With respect to any single question, therefore, of the legal provisions of the charter, which had been legally argued only on one side, and where private pains were taken to interest the ablest law characters in the Board of Overseers on that side; we do not think a very loud proclamation of deference to authority necessary, to protect us from the charge of arrogance.

It is not, however, our design to say any more on this point. We consider the question as one of construction and of intention. The memorialists so treated it; and it is therefore in this form only that their argument ought to be considered. On the ground of construction and intention, the authority is stronger for, than against the Memorial. The Committee of both houses of the Provincial General Court, who, in 1722,

* Dr Brown, in his approved work, in the elaborate chapter on Corporations, reverses the facts; and states the opinion of the three judges, as the present rule of law.

pronounced that it was the intent of the College charter, that the Tutors of 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,"-comprehended an amount of law character, as great as was arrayed against the Memorial last winter. In this opinion the Representatives and the Council concurred. This authority of lawyers in the highest judicial stations, living one hundred years nearer than we do to the date of the instrument on whose intent they decide, with records in their hands, now lost, is as strong as any thing can be. Nothing on the score of authority can, at the present day, be opposed to it.

An attempt is made, indeed, to weaken the effect of this authority, by saying it was pronounced ex parte. We intend, in the sequel, to place in a distinct light, the history of this affair of 1722 and 1723, when this allegation will be examined. We will now only say a word of the improbability a priori, that a Committee, containing more than a full bench of judges and justices, and those the most honoured names which the history of Massachusetts can produce, should have taken upon themselves to make a decision, which could fairly be called ex parte. A hearing is called, in the language of Mr Ticknor, a mere matter of "decent justice." Had Paul Dudley, had Edmund Quincy, had Chief Justice Lynde no sense of justice, none of decency? Will it be believed of men in that station, and of their characters? We trust not; and never, in fact, had a question been more thoroughly discussed, under all its forms, than this had been, before the Committee brought in that decision, which is now called ex parte, because the Corporation were not permitted to argue a fourth time, a question which they had argued three times before.

While, therefore, the opinions pronounced last winter by the highest law characters among us, go only to the legal provisions; law authorities as numerous and respectable, and a century nearer the date of the instrument which they explain, support the memorialists in their view of the intention of the charter. What, then, is this point as to the intention of the charter, and how is it made out?

The charter of 1650 provides, "that the College in Cambridge, in Middlesex, in New England, shall be a corporation consisting of seven persons, to wit, a President, five fellows,

and a treasurer or bursar; and that Henry Dunster shall be the first president; Samuel Mather, Samuel Danforth, Masters of Art, Jonathan Mitchell, Comfort Star, and Samuel Eaton, Bachelors of Arts, shall be the five fellows; and Thomas Danforth to be the present treasurer, all of them being inhabitants of the Bay, &c."

The Memorial pretends, that it was the intent of the Charter that these five fellows should be resident at the College, employed in instruction or government. It is stated in Mr Ticknor's pamphlet that the whole argument of the Memorial rests on the construction of this word. Though the construction of this word is an important part of the argument, we shall soon see, it is by no means the whole nor the major part of it.

The first consideration in support of this point is, that fellow of a college is a technical term, and according to a well known principle" terms of art, or technical, terms, must be taken, according to the acceptation of the learned in each art, trade, and science."* As there was then no other college in Ameri ca, and as it is a well known term in the English Colleges, in which some of our forefathers were educated, we look to them to find what a fellow technically is. The memorialists contended that fellows, as known in the English Colleges, resided in the walls, administered the government of the society, were employed (as many as were needed) in instruction, and received their support from the college funds. The chief authorities, which they quoted, were, the Statutes of Trinity, the chief college at Cambridge, of Jesus and New College, Oxford, and of Trinity College, Dublin; all of which prescribe the residence of fellows under severe restrictions; in all of which the government is administered by the Fellows or a part of them; in all of which the Fellows have their support from the funds, and furnish from their number the tutors who instruct. Our limits do not permit us to quote these Statutes. They were read by Mr Everett, in his defence, last winter, from manuscript copies of the Statutes of Trinity and Jesus; from the printed copy of the Dublin Statutes, and in the case of University College, Oxford, from Dr Ayliffe's work.-The inference drawn from these authorities was strengthened, in the memorial, by reference to a singular practice at Pembroke Hall, Cambridge. Dr Edmund Calamy was, on ac

Blackstone, i. 60.