A letter to John Lowell, esq. in reply to a publication entitled Remarks on a pamphlet, printed by the professors and tutors of Harvard university, touching their right to the exclusive government of that seminary

Front matter

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Hollinger Corp.

II

In June 1653, a noble donation was made by the court to the same end, and in the following words,

" For the encouragement of Harvard College and the society thereof, and for the more comfortable maintenance and provision of the President, Fellows and Students thereof, in time to come, this court doth grant unto the said society and corporation, for the ends aforesaid, two thousand acres of land, within this jurisdiction, not formerly granted to any other, to be taken up in two or three places, where it may be found convenient, and to this end it is desired that the said corporation of the college will appoint some persons, in their

JJj behalf, to find out the places where said land may be freely taken, and to make return as soon as they may, that the court may more particularly and expressly confirm the same."

In 1658 this liberal grant was laid out to the college, for the more comfortable maintenance and provision of the President, Fellows, and Students, in time to come.

III

Again in August 1653, we have on the records of the court a document of some length, but of such particularity and interest, in this connexion, that I shall venture to quote the whole of it.

" The court being informed that the present condition of the college at Cambridge calls for supply, do order that Cambridge rate for this year, now to be collected, be paid in to the steward of the college, for the discharge of any debt due from the country to the said college ; and if there be any overplus, to be and remain for the college stock and for further clearing and settling all matters, in the college, in reference to the yearly maintenance of the President, Fellows, and necessary officers thereof, and repairing the houses, that so yearly complaints may be prevented, and a certain way settled, for the due encouragement of all persons concerned in that work. The court doth hereby appoint Mr I. Nowell, Capt. Daniel Gookin, Capt. John Leverett, Capt. Edward Johnson,* and Mr Edward Jackson, or any three of them to be a committee to examine the state of the college, in all re > spects, as is hereafter expressed, Mr Nowell to give notice of the time and place of meeting :

1. To take account of all the incomes of the college and profits arising due to the officers thereof, either by gift, revenues, study rent, tuition fees, commencements, or any other profits, arising due from time to time, as near as may be since first the President undertook the work.

2. To examine what has been paid and disbursed either for buildings, repairing, or any otherwise paid or reserved annually for maintenance of the President, Fellows, and other officers thereof

3. To consider what may have been yearly received by the President, out of any of the incomes and profits aforesaid, for his own use and maintenance as near as conveniently may be, ever since he came to the place of President ; also what allowances have been made yearly to the Fellows and other officers.

4. To weigh and consider what may be fit for an honorable and comfortable allowance annually to the President heretofore, and for the future, and how it may be paid hereafter.

5. To consider what number of Fellows may be necessary for carrying on the work in the college, and what yearly allowance they shall have and how to be paid.

6. To direct some way how the necessary officers, as steward, butler, and cook may be provided for, that so the scholars' commons may not be so short, as they are now occasioned thereby.

7. To take cognizance of all and every matter and thing concerning the said college, in reference to the welfare thereof, in outward things and to present a way how to regulate and rectify any thing that is out of order.

8. To examine what sums have been and of late are promised, by several towns and persons, for the use of the college and to give order for the collection thereof, and propose a way how such monies may be improved for the best benefit of that society for the future, and this committee are hereby authorised to make return of what they do to the next court of election to be confirmed, if they shall judge meet."

From this important document many inferences might be drawn. It is superfluous to say, that it establishes, in the most ample manner, the residence of the Fellows, the point now under consideration. It proves, that the government claimed and exercised the visitatorial power : and whereas you have intimated, (p. 25) that the instructors of the college were alluded to, by that provision of the charter, which authorizes the President and Fellows to choose the necessary officers, you here see, by the sixth article of these instructions, that in the officers alluded to are steward, butler, and cook.

IV

The committee thus raised made a report, which is not preserved, but the records of the court contain the doings had thereon, August, 1653.

" The court on perusal of the return of the committee appointed to consider the college business, do judge, that the ten pounds brought in upon account by the President of the college, for his care and pains for this twelve years last past, in looking after the affairs of the college in respect of building, repairing, or otherwise be respited, till this court take further order thereon ; and that the contribution and subscriptions lately given in, or which shall hereafter be given in, by several towns and persons, together with all other stock appertaining to the college shall be committed to the care and trust of the overseers of the college, who have hereby power to give order to the Treasurer of the college to collect the several subscriptions, which are or shall be hereafter due from time to time ; and in case of non-payment thereof, that it be secured by the several towns and persons, so long as it shall remain unpaid, and the produce of it to be paid to the said Treasurer, and to be for the maintenance of the President, Fellows, and other necessary charges of the college, and the several yearly allowances of the President and Fellows, to be proportioned as the said overseers shall determine concerning the same."

This document is of very great importance. It

proves that the subscriptions so often alluded to

made one fund with the other college stock, which

fund was pledged, among other necessary charges,

J1A to the maintenance of the President and Fellows. It proves that the distinction of two sorts of Fellows, those of " the House" and of " the Corporation" was not yet known ; since had it been, the Fellows of the corporation, and not the overseers, would have fixed the stated salaries. Of the stock alluded to, the rents of Charlestown ferry were of course a part. Those rents were given as early as 1638, and considering the antiquity of the appropriation, its increased value, and its permanency, it is much the most valuable donation ever made the college. It is as solemnly pledged, as any act of those who gave it could pledge it, to " the maintenance of the President and Fellows of the college, and other necessary charges."

V

To put this matter beyond question, I quote the following act of the year 1654. As it has been often printed* and the preamble, though interesting, contains nothing particularly to the point, I shall only quote the body of the act.

" It is therefore ordered by this Court and the authority thereof, that, besides the profit of the ferry formerly granted to the college, which shall be continued, there shall be yearly levied by addition to the country rate, one hundred pounds to be paid by the Treasurer of the country to the college Treasurer, 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, and this to continue during the pleasure of the country."

The document proves, if it needed proof, that the income of Charlestown ferry was appropriated to the maintenance of the President and Fellows.

* The General Laws and Liberties of the Massachusetts Colonv, Cambridge, 1672, p. 30.

Charters and Laws of the Colony and Province, p. 80.

as

This act expressly says, that besides the profits of the ferry formerly granted to the college, there shall be yearly levied one hundred pounds for the behoof and maintenance of the President and Fellows. The mention of the gift of the ferry was not merely a historical mention of it as a fact ; for then the original donation of 400/. which was laid out in erecting the buildings, would have been also commemorated, or alone commemorated, as the more important at that time. Instead of this, it is said, that besides the ferry formerly given, one hundred pounds more shall now be given, for the maintenance of the President and Fellows. — The proceeds of the ferry, without reckoning interest upon them, have probably amounted to as much as all the other unappropriated funds of the college at the present day, and in the plain interpretation of the acts and laws of those who gave them, they cannot legally be applied to any other object. But whatever be thought of this, which it was no part of my present object to urge, I apprehend that we shall not again be told, that the proposition relative to the residence of Fellows, in the intendment of the charter, rests upon " supposed analogies and gratuitous conjectures." — The acts I have cited were passed by the men, who gave the charter, and knew what they intended to provide in it.

There is one remark relative to these donations, which irresistibly forces itself upon the mind. This annual grant of one hundred pounds to the President and Fellows — a munificent sum considered in reference to the poverty of the times — though annually expended in the support of these personages, is in reality to be considered a permanent stock or fund, of which the college, at the present day, is deriving the full benefit. It was given to support and uphold the college ;

di6 it did support and uphold it in times and circumstances, trying beyond the imagination of these prosperous days. It therefore lays the present generation as much under an obligation to administer the college according to the charter, as then understood, as if all those sums given, and all the interest on them, were now at interest and ready to lapse to the Commonwealth, if not appropriated agreeably to the conditions on which they were bestowed. It is observed in your pamphlet, that M a very large proportion of the college funds have been given to the college, under the present organzation ; and much larger sums since the non-resident fellows constituted the majority than before ; and it is fair to presume, that the donors placed a confidence in the corporation as at present constituted," &c. — I have often heard statements like this, but never with full conviction of their justice. If money properly expended in the necessary service of the college be as truly invested in a perpetual fund, as if it had been put out at interest, there is no question but that the donations of the first thirty years are more important and valuable, than all the munificence of modern days. The contributions raised " in pecks, in half bushels, and bushels of corn," and turned in kind into the college buttery, look humble at the present day ; but had it not been for them, not only the college would not have existed, but the State might never have attained and supported that character, which our fathers constantly ascribed in part to the happy influence of this seat of letters.

Having thus gone through a list of some public acts, I shall mention some private donations, expressly given for the support of resident Fellows, and which I must leave it to gentlemen " conversant m

with judicial inquiries," to pronounce upon, in the present administration of the college charter, by which there are no Fellows to be supported.

To the first of these I have already alluded. It is the " Fellows' orchard," afterwards called " Tutors' orchard" and "Tutors' lot," given in 1645, for the use of the resident Fellows ; and though about twenty five years ago claimed by the nonresident corporation to be their property, yet still rented by the tutors on their own account, down to the present day. I would fain know why this alone of all the college property has been separated from the stock of the corporation, and retained in the hands of the residents ?

II.

In 1652, two years after the charter, a merchant of Boston, named Coggan, gave a piece of real estate to Henry Dunster, President of Harvard College, "for the use of the President and Fellows of the said college, so long as they and their successors profess and teach the good knowledge of God's holy word and works, and such languages, arts, and sciences as truly and christianly further the said good and profitable ends." — Here, I apprehend it to be exceedingly obvious, that the Fellows, for whom this foundation was made, were actually teachers. It cannot be said, that any of the present Fellows of the college teach any languages, arts, or sciences whatever.

III.

In 1653, John Glover of Boston, in his last will, bearing date April 11, gave a legacy to Harvard

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College at Cambridge, "for and towards the maintenance of a Fellow there, jive pounds forever"

IV.

In 1653, also Robert Keyne left three hundred and twenty pounds, and about as much more contingently, " for poor and hopeful scholars, and for some addition yearly to the poorer sort of Fellows"

V.

In 1670, the Pennoyer fund was given, by which it was ordered, that " two Fellows and two scholars forever, should be educated, brought up, and maintained in the college at Cambridge."

These foundations, some as I know, all as I presume, are still in existence and still productive. Terrific representations have been made, openly and privately, of the effect that the claim of the Memorial would have on the college funds, if it should be sustained. I should be glad to be informed what is the effect, on funds given for the maintenance of resident Fellows, of an administration of the charter, by which no such Fellows exist. Who receives that money given, on their death beds, by pious men, in times of small things, for the support and maintenance of the resident Fellows ? How much or how little was given in this way, I do not know. The five foundations I have enumerated are all, of which I made a note in cursorily examining some of the college books, more than a year since, and with no view to this controversy. Very possibly much larger sums were given in the same way. I find in a document of Randolph, addressed to the privy council and bearing date October 12, 1676, after the new college char-

&3 ter, the following account of the support of the Fellows, which would lead us to suppose, that very considerable permanent foundations were made for them, were it not that a part of their maintenance was derived from the annual State grant and from tuition fees. " The allowance of the President," says Randolph, " is one hundred pounds a year and a good house. There are but four fellowships; the two seniors have each thirty pounds per annum ; the two juniors fifteen pounds, but no diet is allowed. These are tutors to all such as are admitted students.*"

I consider it, by this time, pretty well made out, that the Fellows, by the intendment and provisions of the charter, by many laws, and many foundations, were resident. It is obvious to enquire how the departure could be made at the first ; and in what mode the consciences of those, who made it, were satisfied. — Though the paucity of documents does not enable us to point out the precise dates of the different stages of the progress, there can be but little division of opinion, as to the mode in which it was effected. I agree entirely with you, in thinking, that five Fellows were more than was wanted for the instruction of the small number of students, who resorted to the college in its early periods, especially as the President took part in the business of instruction. Though it is probable that some duty was required of all the Fellows, as a quid pro quo for the stipends they received, yet it is highly probable that three or four only had a considerable maintenance and one or two only a trifle toward their support. But in the process of time, as the country increased in population, and numerous establishments in the church were opened to the

* Hutchinson's Papers, 502.

JW graduates, the necessity of a provision for them at college became less urgent ; and as the funds of the college at the same time were straightened, it was extremely natural that instead of fae resident Fellows, non-residents should be introduced to fill the places not actually wanted for instructers. The habits of administering law were very loose, and unbounded liberties were taken with the college. Hutchinson says " the president of the colony and afterwards the governor assumed the whole authority, when they thought fit." The overseers, in their turn, were equally arbitrary, and even the president, Dr Hoar, expelled a Fellow for being of the church of England.* In 1672, a charter, with a majority of non-residents, was enacted. In 1673, according to Hutchinson, more members were added to the corporation. In 1692, a charter with eight Fellows was ordered; in 1697, another with a vice president and fourteen Fellows ; nor was it till 1707, after an interregnum of thirty five years, that the charter of 1650 was professedly re-established. So long and in part so stormy a period for the college was sufficient to break up all steady administration, on the primitive construction.

The immediate salvo, made use of to cover the most important deviation from the charter, was the discrimination between Fellows of the house and Fellows of the corporation. When this discrimination was first made, it is out of my power to say. There is not the shadow of evidence, that it was coeval with the charter of 1650, and there are traces of its non-existence as late as 1707. Hutchinson, quoting the public records, says that Leverett was declared President January 14, 1707, and the

* Hutchinson's Papers, 502. This however rests on Randolph's authority and may be exaggerated.

Jli college was put under his care, " agreeably to the choice of the Fellows of the house, approbation of the overseers, and votes of the council and assembly in their last preceding session."* Here Fellows of the house, in the official records of the government, are plainly put for the whole corporation. Moreover, in the controversy relative to Messrs Sever and Welsted, they are repeatedly called Fellows by the Overseers, without any such qualification as that of Fellows of the house. When this name was devised is of little consequence. It is sufficient that it is unknown to the charter, and that as has already been shown it entirely changes the legal constitution of the college.

One word more, with respect to the nature of this change and the consequent introduction into the college of a new board of non-residents, interposed between the overseers and the resident immediate government. You observe (p. 5) that as the president, a resident officer, is ex officio a member of the corporation, and as the memorialists contend that for nearly fifty years there was, besides the president, a majority of residents in the board, " how the non-resident fellows could have forced themselves into the board, against the will of the officers, and against the will of the overseers, who are visiters, it is not easy to perceive." — Though the difficulty is not great in my mind, I will endeavor to remove it. The first non-residents were introduced by acts of the government, altering the charter. When in 1707 the board was reduced from fifteen to five, it was made to consist of three non-residents and two residents. By what process this was effected I know not. By no process which you would call legal, for neither the general court, nor overseers have

* Hutchinson, i. 175.

the power to do such an act, (on the principles, which you maintain,) and there was no legal corporation. — When in subsequent times the board has been constituted of three residents, and two non-residents, the death or removal of one of the former would of course leave the residents and non-residents balanced ; and the president naturally inclines to the former, because the introduction of other residents into the corporation lessens his weight there. As to the overseers, their power is only negative, and could extend only to defeating the election of individual candidates. — They might indefinitely negative non-residents, as decidedly as they did Dr Sewall in 1720; but the corporation could indefinitely choose them. — Besides both they, the resident Fellows, the public, and the non-resident members of the corporation themselves appear to have been willing, that the affair should rest on the loose footing of a compromise. It is only till our own day, and since the year 1806, that the non-residents seem finally to have settled it, that no member of the immediate government, is fit to be introduced into the corporation. You say you read with wonder the statement of the memorialists, that " this privilege (that of being of the corporation) was in 1806, after one hundred and seventy years possession, entirely wrested from them by the non-resident members of the corporation." — The statement, however wonderful, is strictly true. Till 1806, with the exception of one short period at the end of the last century, some one at least, commonly two, often three residents had for one hundred years been Fellows. And it is only since 1806, that out of a body of instructers more numerous, and I hope not less respectable, than at any former period, the non-resident gentlemen have not found

JW> a man worthy to sit by their side. Dr Ware was proposed, and strongly recommended, on your resignation, two years ago. His long connexion with the college, his devotedness to its interests, his thorough acquaintance with its concerns, his acknowledged energy and efficiency in administering its government, taken in connexion with the resolution adopted, when his professorship was founded, and adhered to for seventy years, that " the professor of divinity should always be a member of the corporation" led to a very strong hope, on the part of many, that he would be admitted. But the non-resident gentlemen judged that the Hon. H. G. Otis was better acquainted with the college affairs, and more conversant with the administration of literary institutions, and he was accordingly elected.

It is now necessary to say something of the case of Sever and Welsted, " the tools with which an unholy and illiberal work was to be accomplished," as you call them, by rather a strong phrase, considering that the work in question is one, which you only " think you have discovered." — I would first premise, that you have taken no notice of the refusal of the overseers to confirm the election of Mr Sewall of Boston to the vacancy occasioned by Mr Stevens' death, and their requisition, that the vacancy be filled up by a resident Fellow. Since Mr Sewall's character was unexceptionable, and Mr Robie (the resident) had no particular recommendation beyond residence, you ought, I think, to propose some explanation of this step, on the part of the overseers.

But to return to the case of Sever and Welsted, which I think I shall show you have hastily treated. You first demur to the jurisdiction of the court, and argue that ".the legislature had no authority in d^ the case," and intimate, that instead of quoting it as a precedent " the memorialists ought to blush for the legislature." Reserving the right of blushing, as one of those franchises which we are all free to exercise at our own discretion, let me observe that the legislature acted by request of the overseers. Yes, this " barefaced usurpation," as you call it, was actually undertaken by the general court, in consequence of a Memorial presented to them by the overseers, a body consisting of the governor, the eighteen councillors, and the ministers of the six neighboring towns, in which memorial, bearing date June 13, 1722, the overseers prayed the general court, 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 that number." — And now, dear sir, what becomes of this " barefaced usurpation ;" of your position, that the legislature had no authority in the ca^e, that they attempted " to exercise powers truly despotic," that two discontented tutors " instead of applying for a mandamus or a quo warranto to settle the question of right, went directly to the legislature to ask them to judge upon private rights," and that in so doing they were but " the tools of an unholy and illiberal work," of which the authors and plotters, by a rather comprehensive denunciation, you assume to be " the Mathers and the rulers of the church and State generally ?" It is, you perceive, entirely imaginary. The motion was given by the overseers, who asked an enlargement of the numbers of the Corporation, in order that the resident Fellows might be brought in.

This memorial of the overseers was committed to a joint committee of both houses, which consisted of the following persons, — for it is important to ii

name the individuals, that stood forward, in dealing out "the fury of the popular branch" on this occasion. — The committee consisted of ten, five from the house and five from the council. The members from the house were John Clark, very often a representative from Boston, and whose character may in some degree be inferred from his place as speaker of the house ; Elisha Cook also a Boston member, clerk of the Supreme Court, and at a subsequent period agent of the colony at London and a councillor. He was a very decided member of the popular party, but receives from Hutchinson, whose testimony on such a point is certainly impartial, the character of " a fair, honest man, open in his conduct and actuated by love of his country." John Wainwright, of Ipswich, another of the committee was often employed in high trusts. John Stoddard, of Northampton, was a fourth. "Few men, says Hutchinson, were more universally esteemed ;" and his father, famous Solomon Stoddard, whose memory is still as a pot of frankincense in Northampton, who was graduated twelve years after the charter of 1650 was given, and who had been a Fellow under it, was still living and able to inform his «on, what the provisions of the charter, in those primitive times, were understood to be. Lastly, of the committee of the house was, John Quincy, an honorable name of an honorable man, whom I shall not waste words in vindicating from the general charges, which you make against the promoters of this measure. Now let us look at the committee of the council.

They were, first, Thomas Hutchinson, father of the governor, a distinguished Boston merchant ; for twenty five years consecutively a member of his majesty's council ; a man allowed to merit the pious testimony of his son, " that regardless of the frowns of a governor or the threats of the people, he spoke and voted according to his judgment, attaching himself to no party, any further than he found their measures tend to the public interest." Next was Edmund Quincy, a man in whose praise the pages of our history are eloquent. From youth till death, he was an object of love, confidence, and pride ; an active and skilful soldier ; an eloquent speaker, an upright and honorable judge ; one of the most useful and accomplished gentlemen in the province, who died as he had lived, in the service of his country, and was honorably buried at London, at the public expense of his native land. Another of this committee was Addington Davenport ; of his history and character I know nothing, but that he was Chief Justice of the Supreme Judicial Court. Another was Benjamin Lynde, also Chief Justice of the Supreme Judicial Court. He was chairman of the committee ; of which, finally, the last member was Paul Dudley, then the first name in the province, son of the veteran governor, Chief Justice of the Supreme Court, Fellow of the Royal Society of London. Let me have the pleasure of transcribing his character, in the glowing words of his successor, Chief Justice Sewall.

" Here (on the bench) he displayed his admirable talents, his quick apprehension, his uncommon strength of memory and extensive knowledge ; and at the same time his great abhorrence of vice, together with that impartial justice, which neither respected the rich, nor countenanced the poor man in his cause. Thus, while with pure hands and an upright heart he administered justice, in his circuit through the province, he gained the general esteem and veneration of the people. As his presence always commanded respect, so it might justly be said of him, that he scattered iniquity with his eyes, which struck with awe the most daring offenders.