The constitution and government of Harvard-College.

An ACCOUNT Of the Constitution and Government of Harvard-College, from its first Forma∣tion in the Year 1636 to the Year 1742.

THE subsequent Collection of Laws, which founded the Government of Harvard-College, was made on a late extraordinary Case, wherein the Overseers of said College assumed to themselves a SOVEREIGN Power over that College, and the SOLE Right to judge and censure and dismiss the PRESIDENT or ANY Member of the Corpo∣ration of said College, without the Consent or any Act of that Corporation for the same. This occasion'd the following Examination into the Constitution and Government of Har∣vard-College, beginning at the first Formation of that Col∣lege in the Year 1636 and ending with the present Year of our Lord 1742, wherein all the Laws that constitute the Go∣vernment of said College are laid together and compared; and then from these Laws an Argument is formed to prove "What Powers belong to the Corporation and to the Overseers of said College; and what Powers over that College still remain in the GENERAL COURT. And from the whole 'tis finally concluded "Who are the VISITORS of said College and have the Right at ALL Times to look into the State of the COLLEGE-STOCK and see that it is not embezzled or any Part of it alienated from its proper Uses.

I. THE First Erecting a SCHOOL or COLLEGE at Newtown (afterwards Cambridge) before the General Court in 1642 appointed OVERSEERS for said College.

Taken from the Court Records.

Sept. 1636. The Court agreed to give 400 l. towards a SCHOOL or COLLEGE, whereof 200 l. to be paid the next Year, and 200 l. when the Work is finished; and the next Court to appoint where and what Building.

Court Rec. B. 1. P. 183.

Anno 1637. "The College is ORDERED to be at Newtown.

Court Rec. B. 1. P. 204.

"For the College;* 1.1 The Governour Mr. Winthrop, the Deputy Mr. Dudley, the Treasurer Mr. Bel∣lingham, Mr. Humphry, Mr. Herlackendon, Mr. Stoughton, Mr. Cotton, Mr. Wilson, Mr. Damport, Mr. Wells, Mr. Shepherd, Mr. Peters; these or the greater Part of them, whereof Mr. Winthrop, Mr. Dudley or Mr. Bellingham, to be always one; to TAKE ORDER for a College at Newtown.

Court Rec. B. 1. P. 213.

May 1638. "It is ordered that Newtown shall be henceforth called Cambridge.

Co. R. B. 1. P. 221.

March 1638, 9. "It is ordered that the College agreed on formerly to be built at Cambridge, be called HAR∣VARD COLLEGE.

Court Rec. B. 1. 241.

Anno 1639. "The Court granted to Mr. Nathanael Eaton 500 Acres of Land, if he continue his Employ∣ment, for his Life, to be to him and his Heirs.

Court Rec. B. 1. P. 252.

Mr. Nathaniel Eaton being accused for cruel and barbarous beating of Mr. Naz. Brisco, and for other neglecting and misusing of his Scholars,‖ 1.2 It was ORDERED that Mr. Eaton should be DISCHARGED from keeping School with us without License. And Mr. Eaton is fined to the Country 66 l. 13 s. 4 d. which Fine is respited to the next Court, unless he remove in the mean while; the Court agreed Mr. Eaton should give Mr. Naz. Brisco 30 l. for Satisfaction for the Wrong done him, and to be paid presently. Capt. Jennison and Mr. Mayhow were appointed‡ 1.3 to call Mr. Eaton to Account the begin∣ning of next Week, and to desire Mr. Samuel 〈◊〉〈◊〉 and Mr. Joseph Cook to help them the best they can.

Court Rec. B. 1. P. 262, 3.

Anno 1640. "The FERRY between Boston and Charlestown is granted to the College.

Court Rec. B. 1. P. 283.

I. THE First Erecting a SCHOOL or COLLEGE at Newtown (afterwards Cambridge) before the General Court in 1642 appointed OVERSEERS for said College.

Taken from the College Records.

A. Sept. 1636. "At a General Court held at Boston, The Court voted for the erecting a publick SCHOOL "or COLLEGE in Cambridge 400 l. to be paid out of the Country Treasury.

Coll. Rec. B. 3. P. 1.

B. Anno 1637. Mr. Nathaniel Eaton was chosen Professor of said SCHOOL. To whose Care the Ma∣nagement of the Donations were betrusted; for the erecting such Edifices as were meet and necessary for A College and for his own Lodgings.

Col. Rec. B. 3. P. 2.

C. Sept. 1639. Mr. Nathaniel Eaton appearing in the Court held at Boston, and being there convicted of sundry Abuses and inhumane Severities, by him acted towards the Scholars under his Charge, ‡ was openly sentenced and removed from his abovesaid Trust. The Care of carrying on the Building begun by Mr. Eaton was ‡ then committed to the Management of Mr. Samuel Shepherd; and ‡ the College-Stock put into his Hands.

Coll. Rec. B. 3. P. 2.

D. Aug. 27. 1640. At a Meeting of the Magistrates and Elders at Boston, The Reverend Mr. HENRY DUNSTER was by them invited to accept the Place of President of the College, which he accordingly accepted; to whom was committed the Care and Trust of finishing the College Buildings and his own Lodgings, and the C••••••••••y of the ••spand••, and such Do••••ti•••••• a•• might further be added to the ••ncrease thereof.

Coll. Rec. B. 3, P. 3.

II. The Act of the General Court in 1642, which consti∣tuted and appointed OVERSEERS to said Harvard-College, before that College was made a CORPORATION.

WHEREAS through the good Hand of God upon us, there is a College founded in Cambridge in the County of Middlesex† 1.4, called HARVARD COLLEGE; For the Encouragement whereof this Court hath given the Sum of 400 l. and also the Revenue of the FERRY betwixt Charlestown and Boston, and that the well-ordering and managing of the said College is of great Concernment.

It is therefore ordered by this Court and the Authority thereof, that the Governour and Deputy Cover∣nour, for the Time being, and all the Magistrates of this Jurisdiction, together with the teaching Elders of the six next adjoining Towns, viz. Cambridge, Watertown, Charlestown, Boston, Roxbury and Dor∣chester, And the President of the said College, for the Time being, SHALL from Time to Time Have Full Power and Authority to make and establish all such Orders, Statutes and Constitutions as they shall see necessary for the instituting guiding and furthering of the said College, and the several Members thereof, from Time to Time, in Picty Morality and Learning: And also to Dispose, Order and Manage to the Use and Behoof of the said College, and Members thereof, all Gists, Legacies, Bequeaths, Revenues, Lands and Donations, as either have been, are, or shall be conferred, bestowed, or any Way shall fall, or come to the said College.

And whereas is may come to pass that Many of the said Megistrates and said Elders may be Absent, or otherwise Employed about other weighty Affairs, when the said College may need their present Help and Counsel, it is therefore ordered that the greater Number of Magistrates and Elders which shall be present with the President shall have the Power of the Whole; PROVIDED that if any Constitution Order or Or∣ders by them made shall be found burtful unto the said College or the Members thereof of to the Weal∣publick; Then upon APPEAL of the Party or Parties grieved unto the Company of Overseers first menti∣oned, they shall repeal the said Order or Orders (if they see Cause) at their next Meeting, or Stand Ac∣countable thereof to the Next GENERAL COURT.

III. The Colony Law or Charter which incorporated said Harvard-College, May 31. 1650.

WHEREAS thro' the good Hand of God many well-devoted Persons have been and daily are moved and stirred up to give and bestow sundry Gifts, Legacies, Lands and Revenues, for the Advancement of all good Literature, Arts and Sciences, in Harvard-College in Cambridge in the County of Middlesex, and to the Maintenance of the President and Fellows, and for all Accommodations of Buildings, and all other necessary Provisions, that may conduce to the Education of the English and Indian Youth of this Country in Knowledge and Godliness,

It is therefore Ordered and Enacted by this Court, and the Authority thereof, that for the furthering so good a Work and for the Purposes aforesaid, from HENCEFORTH, that the said 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 Burser; and that HENRY DUNSTER shall be the first President, Samuel Mother, Samuel Danforth Masters of Art, Jonathan Mitchel, Comfort Star and Samuel Eaton Batchelors of Art, shall be the five Fellows, and Thomas Danforth to be present Treasurer; all of them being In∣habitants in the Bay, and shal be the first Seven Persons of which the said Corporation shall consist.

And that the said seven Persons or the greater Number of them, procuring the Present of the OVER∣SEERS of the College and by their Councel and Consent shall have Power and are her••by authorized at any Time or Times to ELECT a new President, Fellows or Treasurer so oft and f•••••• Time to Time as any of the said Person or Persons shall DIE or be REMOVED.

Which said President and Fellows for the Time being shall for ever hereafter 〈◊〉〈◊〉 ••ame and Fact be one Body Politick and Corporate in Law to ALL Intents and Purposes; and 〈◊〉〈◊〉 have perpe∣tual Succession, and shall be called by the Name of "Pr•••••••••••• and Fellows of ••••••••••ard College" and shall from Time to Time be eligible as aforesaid, and 〈…〉〈…〉 that Name th•••• 〈◊〉〈◊〉 their Succes∣so•• shall and may purchase and require to themselves, 〈…〉〈…〉 free Gift and Donation, any Lands. Ten•••••••••• ••spand•• with•••• this J••••i••••••••tion ••spand•• Massachuset••s, not exceeding the Value of 500 l. per Annum, and any Goods and Sums of ••••••••y whatsover, to the Use and Behoof of the said President, Fellows and Scholars of the said ••••••••ge; and also may sue and plead or be sued and impleaded by the Name aforesaid in all Co••••s and Places of Judicature within the Jurisdiction aforesaid.

And that the said President with any three of the Fellows shall have Powers, and are hereby authorized, when they shall think fit, to make and appoint a common Seal for 〈◊〉〈◊〉 Use of the said Corporation

And the President and Fellows or the major Part of them, from Time to Time, may meet and CHUSE such Officers and Servants for the College, and make such Allowance to them and THEM also to REMOVE, and after DEATH or REMOVAL to CHUSE such others, and to make from Time to Time such ORDERS and By-Laws for the better ordering and carrying on the Work of the College, as they shall think fit. Provided the said ORDERS be allowed by the OVERSEERS.

And also that the President and Fellows or major Part of them with the Treasurer shall have Power to make conclusive Bargains for Lands and Tenements to be Purchased by the said Corporation for valuable Consideration.

And for the better ordering of the Government of the said College and Corporation, be it enacted by the Authority aforesaid, that the President and three more of the Fellows shall and may from Time to Time, upon due Warning or Notice given by the President to the rest, hold a Meeting for the deba∣ting and concluding of Affairs concerning the Profits and Revenues of any Lands, and disposing of their Goods; provided that all the said Disposings be according to the Will of the Donors; and for Direction in all emergent Occasions. Execution of all Orders and By-Laws, and for the procuring of a General Meeting of ALL the OVERSEERS and SOCIETY in GREAT and DIFFICULT Cases and in Cases of NON-AGREEMENT; in ALL which Cases aforesaid, the Conclusion shall be made by the major

Part, the said President having a casting Voice, the OVERSEERS consenting thereunto. And that all the aforesaid Transactions shall tend to and for the Use and Behoof of the President, Fellows, Scholars and Officers of the said College, and for all Accommodations of Buildings, Books, and all other ne∣cessary Provisions and Furnitures, as may be for the Advancement and Education of Youth in all manner of good Literature, Arts and Sciences.

The two remaining Clauses of this Charter have no Relation to the Overseers of said College, but only exempt the Estate of the College and Scholars from Rates, Toll and Excise; and the Corporation, Scholars, and Servants of said College, from civil and military Offices and Services; and the Estates of said Servants, to 100 l. a Man, from Country Rates.

IV. The Appendix to the College Charter of 1650. At a General Court held at Boston, Oct. 1657

In Answer to certain Proposals presented to this Court by the OVERSEERS of Harvard-College; As an Appendix to the College-Charter, it is Ordered:

The Corporation shall have Power from Time to Time to make such Orders and By-Laws for the better ordering and carrying on of the Work of the College as they shall see Cause without De∣pendance on the Consent of the Overseers foregoing; Provided always that the Corporation shall be responsible unto and those Orders and By-Laws shall be alterable by the Overseers according to their Discretion.

And when the Corporation shall hold 〈◊〉〈◊〉 Meeting for agreeing with College Servants, for making of Orders and By-Laws, for debating and concluding of Affairs concerning the Profits and Reve∣nues of any Lands or Gifts and the d••••posing thereof (Provided that all the said Disposals be according to the Wil•• of the Donors) for managing all emergent Occasions, for the procuring of a GEN••••AL Meeting of the OVERSEERS and SOCIETY in great and difficut Cases and in Cases of New-Agr••••∣ment, and for all other College Affairs to them 〈…〉〈…〉 all thse Cases the Conclusion shall be valid being made by the major Part of the Corporation, the President having casting Vote; Provided always that in these Things also they be responsible to the Overseers aforesaid.

And in Case the Corporation shall see cause to call a Meeting of the Overseers, or the Over∣seers shall see good to meet of themselves; it shall be sufficient unto the Validity of College Acts that Notice be given to the Overseers in the six Towns mentioned in the printed Law Anno 1642, when the rest of the Overseers by Reason of the Remoteness of their Habitations cannot conveniently be ac∣quainted therewith.

This APPENDIX, or the greater Part of it, seems to be NULLED by a succeeding Law of the Colony (called the College Charter of 1672) which ends with this Sanction of the Court.

All and every of which Premises we do ••nd••in and enact to be FULLY established for LAW; any L••••, GRANT, or Us••ge to the CONTRARY, in any wise notwithstanding.

Now the greater Part of ••••d Appendix is contrary to this posteriour Law of 72. And indeed this latter Law is the most proper Appendix to the Charter of 50; for in express Terms ••us grounded on said Charter as on its Foun∣dation; not does it alter any Thing in that Charter but in some ••ew Cases. So there is no Oc∣casion to infort it here, Reference being had there•••• in the Court Records. The greatest Alteration it makes in said Charter of 50 〈◊〉〈◊〉 that in some Things it gives more Power to the Corporation of said College, and less to the O••••er••••e••s, than the Charter of 50 does. Which may be one Reason why this Law of 72 was not entered in due Form into some College Records, as the said Appendix of 50 has been.

PRACTICES upon the Preceeding Laws of 42 and 50, which originally constituted the Overseers and Corporation of Harvard-College.

The four preceeding Laws of 42, 50, 57, 72, were all the standing Laws, on which the Govern∣ment of said College was founded, in old Charter Times. And since Practices upon ancient Laws, nearest the Times wherein such Laws were made, do best explain and interpret them; here are sub∣joined some Acts of the Court, in those early Times, which show what Sense the Court put upon these two Laws which originally constituted the Overseers and Corporation of said College; and what Powers the Court, without Reserve to themselves, had been pleased to grant in these Laws to the Overseers and Corporation of said College. Thus;

Ann•• 1654. After the Court had constituted the Overseers and Corporation of said College; it appears from the Province Records, (Vol. 3. P. 245) That the Court

on Perusal of the RETURN of the Committee appointed to consider of the College-Business, ORDER that all the STOCK ap∣pertaining to the College should be committed to the Care and TRUST of the Overseers of said College.

Now by the Act of 42 the Overseers had the College-Stock given to them; but after∣wards the Charter of 50 takes it out of their Hands and puts it into the Hands of the Corpora∣tion; and now in 54 the Court in an extraordinary Case INTERPOSE and susp••nd the Powers of the Charter, and, for a Time, put that Stock back again into the Hands of the Overseers. At first View this may seem an extraordinary Act in the Court, who by a solemn Grant of the Charter of 50 had vested the Property of that Stock in the said Corporation. But there is ••••ally nothing extr••••rdinary in this Act. For as VISITORS, of their OWN College, the Court had a Right at ALL Times to see that this STOCK was well ••••hen Care of! And therefore this Year when the said Corporation were so few in Number, and President Dunster being now about to quit his Place, and so the said College be lo•••• with•••••• a HEAD: In the•••• weak State of that Society, the Court seem for the 〈◊〉〈◊〉 of that Stock ••••commit it, for a Time, to the Care and TRUST of the Overseers. This was on Act that, in Com••••••••••o••, the VISI∣TORS of a College had a Right to do.

Ann•• 1654. The Court ordered (Prov. Rec. Vol. 3. p. 274) that

Mr. Whi•••••• and Mr. Cobbet Pastors or Teachers of the Churches of Dedham and Lyn and Mr. Norton an unsettled Teacher in Boston, should BE Overseers; and JOIN with the rest of the Overseers, in the Work of the College.

And thus, notwithstanding the Acts of 42 and 50, the Court in the Year 54 made NEW Over∣seers; and by the same Power the Court could have unmade the Former Overseers. So dependent were the Overseers of the said College in those Times upon the Court. Such a state of Depen∣dency, for the Continuance of their Being on the Court, does not seem to imply that the Overseers of said College were, in and by their Constitution, the VISITORS of said College; For Visitors, as such, have not a dependent precarious Existence.

Anno 1654. Mr. Henry Dunster, the President appointed and named in the College Charter of 50, resigned his Place; while that Charter and all the Powers granted in it (as well as the Powers granted in the Act of 42 to the Overseers) were so well understood by ALL Parties concerned! For the Court had granted that Charter but four Years before. Now from the publick Histories of this Country, and from the large Account of the Matter in the College Records, it appears that Mr. Dunster (like Mr. K••nt at Mar 〈◊〉〈◊〉) was forced either to resign his Place or to recant some of his religious Tenets, and he chose the former. So this forced Resignation was in effect the same Thing with a Dismission of him from his Place. And now let it be observed, "To WHOM He resigns; and how far the Overseers or Corporation of said College were concerned in the Business of his Resignation, which here follows.

The President's Resignation exhibited to the GENERAL COURT held at Boston June 10. 1654.

To the Worshipful and Honoured RICHARD BELLINGHAM, Esq Governour of the Massachusetts Colony, with the rest of the Honour∣ed Assistants and Deputies in General Court at Boston now assembled.

Worshipful and Honoured Gentlemen and faithful Trustees of your Colony.

Whereas now at last I understand that the Call or Invitation I had unto my present Business in the College, together with the Promises, Encouragements and Allurenments thereto on Aug. 27. 1640, by about Ten Gentlemen, whom I then understood to be Magistrates with Mr. DUDLEY then Governour and about Sixteen Ministers or Elders, whom I also then took to be and st•••• from my Heart do think to continue the Persons that seriously and cordially consult for the Wel∣fare of the Colony, and that especially in the liberal and learned Education of the Youth of the Country; yet seeing that now† 2.1 I FULLY understand that the said Persons had NO Authority to do any such Act or Acts as to give such a* 2.2 CALL or to promise any such Encouragements or Allure∣ments; and besides, seeing there be such Laws, Orders or Injunction‡ 2.3 in Part already imposed on the Place as be destructive thereto, and that our former Laws and Orders by which we have managed our Place, be declared illegal and null, so that all possible Means of managing our Trust to the best End is so either made void, interfering and entangled, or at least questionable and offensive, that whatsoever we do is to Myself and the Fellows unwarrantable and not secure, and with some Principles te••••ing to Dissolution. To mention no further Grounds [viz. His being an Anabaptist, which this 〈◊〉〈◊〉 and Good Man really was]:

THEREFORE I here resign u•• the Place wherein hitherto I 〈…〉〈…〉 with all my Heart (blessed be the Lord who gave it) serving YOU and YOURS. And henceforth (that you in the Interim may be provided) I shall be willing to do the best I can for some few Weeks or Months to continue the Work, acting according to the Orders prescribed to us; If the Society in the Interim fall not to Pieces in our Hands; and what Advice for the present or for the future I can give for the publick Good, in this Behalf, with all Readiness of Mind I shall do it, and daily by the Grace of our LORD JESUS CHRIST, pray the LORD to help and Counsel us all, in whom I rest.

Yours faithfully to serve, Henry Dunster.

This Resignation President Dunster delivered to the Overseers of said College, which being presented to the General Court then setting, the Court thereon passed the following Order.

In Answer to a Writing presented to this Court by Mr. Henry Dunster, wherein among other Things he is pleased to make a Resignation of his Place as President, this Court doth ORDER that it shall be LEFT to the Care and Discretion of the Overseers of the College to make Provision, in Case he persist in his Resolution more than one Month and inform the Overseers, for some meet Person to carry an End that Work for the present, and also to act in whatever Necessity shall call for UNTILL the next Sessions of this Court, when we shall be better enabled to settle what will be needful in all Respects with Reference to the College: And that the Overseers will be pleased to Make RETURN to this Court at that Time of what they shall do herein. The Deputies have passed this, and desire our honoured Magistrates Consent thereto.

William Torrey, Cler.

12. 4. 1654

Consented hereunto by the Magistrates.

Richard Bellingham, Governour.

Court Records Book 3. p. 262. And Overseers Book, No. 2. p. 1.

And thus so near the Time when the College Charter of 50 was granted it app••••••s that the very President named and appointed in that Charter, made not his Resignation to the Overseers and Cor∣poration (though he out it 〈…〉〈…〉 of the Overseers 〈…〉〈…〉 to them) but to the General Court; And hereon the Court ORDERED that this Affair should be LEFT with the Overseers (just as ••••e Court might have ordered that it should be Left with any other Persons) so that 'tis evident the Overseers acted not in this Affair by any inherent Powers of their own, but by an ex∣trinsick and delegated Power from the Court, and as a temporary Committee of the Court until the next Sessions, when the Court should be better enabled to SETTLE in ALL Respects what was needful for the College; and the Overseers were to make RETURN of what they should do in this Affair, to the Court who had Employed them in it.

And after the Court had thus empowered the Overseers to treat with Mr. Dunster they then enter into long and various Conferences with him and address him thus,

Mr. President; The General Court seem to require of you that you Inform the Overseers whether you persist in your Resignation, and [the Court] EXPECT from us a Provision for the College in Case of your Persistance, and a Return to the Cou••t of What we have done in this Business.

And again;

Whereas in Observance of an ORDER of Court made, June 10. 1654, The Overseers have had sundry Meetings with Mr. Dunster to know whether he persist in his Resignation lately exhibited to the General Court. And as they would not be wanting to Mr. Dunster whose LAPSE [viz into the Tenets of the Anabaptiste] is the Matter of their Gri••s, so that they may not be wanting to the Truth, the College, the Country, nor the Tru•• committed to them by the General Court viz in this Affair wherein they acted as a Committee of the Court;] they therefore declare that is the Lord do not incline 〈◊〉〈◊〉 his Heart before the middle of September next to give Satisfaction according to the Rules of Christ; the 4 n•••••• be 〈◊〉〈◊〉 in Ca••e there be no other Remedy [viz from 〈◊〉〈◊〉 ••••••it which is all the Remedy

that can be here supposed] to take Care for furnishing the College with another President.

—Then after two or three more Pro's and Con's (no Way relating to the Occasion of these Extracts) he on Oct. 24.1654, makes his final Resignation to the Overseers of said College who were now sent and empowered by the Court as their Committee to receive it. And the Overseers in November following provided another President, and in the mean Time commit the Care and Government of the said College to the Fellows thereof.—And thus the Overseers of said College acted through the whole of this Affair; not by any Power of their own, but by a delegated Power from the Court; for this Power expired as soon as, according to Order, they had made Return to the COURT who had employed them in this Affair.

Let it be noted that this Resignation of Mr. Dunster, implied in it a proper Dismission of him; for a voluntary Resignation is of a quite different Nature. Thus a Member of said Corporation residing at Harvard College when he designs to settle abroad in the World may resign to the President of said College, i. e. may inform the President that he is determined to leave the College and quit his Post in it, (which none can hinder him from doing.) But this is far from implying that the said President can force such a Member to resign. But that Power that can rightfully force him to resign, is most certainly A POWER which can rightfully dismiss him. Now this was President Dunster's Case. For the Overseers of said College, when they acted as De∣legates from the COURT, tell him expressly tht

unless he would give Satisfaction according to the Rules of Christ they must be Constrained to furnish the College with another President.

So this Power included in it a Power from the COURT to dismiss him.

N. B. The next and the only other Instance of a Dismission of a Member of said Corporation was on Feb. last 1741, 2; without any Power from the COURT or any Act of said Corporation for the same, but by the Sole and SOVEREIGN Authority of the Overseers of said College; who having no plain Law for it not from Times immemorial any Instance of such a Thing on their Side, seemed now resolved to make one, that so they might plead it in future Times. Precedents against Law are DANGEROUS Things; especiallly if they rise so high as to turn out Members of CORPORATIONs." Such a Thing done in England would cause an INSURRECTION 〈◊〉〈◊〉 And if this Power does not belong to the Corporation and Overseers of said College by LAW, The Overseers of said College by such an Act have assumed to themselves the Powers of the GE∣NERAL COURT viz. Those Powers which in President Dunster's Case were not the Powers of the Over∣seers, but were delegated to them from the COURT, and so were the Powers of that COURT. — Nothing therefore can demand a more critical Examination than such Precedence and that at their first Beginning be∣fore they acquire the force of Laws and in future 〈◊〉〈◊〉 will be pleaded As Law ag••••••••s 〈◊〉〈◊〉 Rights of the GENERAL COURT itself.

V. The State of Harvard-College since the now Province Charter was granted.

AFTER the vacating the old Colony Charter of the Massachusets in 1684, there were some new Laws or College-Charters made by the general Court of this Province. But these Laws (as all others made under our present Province-Charter) were of Course to be sent Home for the Royal Approbation; And they all were sent Home accordingly, and have been disapproved. So that no Laws whatever remain, but the four preceeding Laws fo 42, 50, 57 and 72, as the Foundation on which the Government of the said C••••••••e now stands. And all or some of these Laws are valid to this Day on the following Grounds 1. T••ese Law, were made in old Charter Times, when it was not requisite to send them Home for Appro∣bation; and so they never were disapproved at Home. 2. As they never were disapproved at Home, so they never were repealed by the General Court who made them; Only so far as the succeeding do inter∣fere with, s••p••••••de or repeal the Preceeding, or any Clauses in the Preceeding, and in such a Case the suc∣••••ding take Place; and particularly the Charter of 50, and the last of these Laws made in the Year 1572 which is properly an APPENDIX to the said Charter of 50. And 3. What of those Laws re∣ma••ned valid, in old Charter Times, was virtually and implicitely confirm'd by a Clause in our present Pro∣vince-Charter and by a declarative Order of the General Court in 1707 respecting the College Charter of 50; BOTH of Which here follow as the last Regulation made of the Constitution and Government of said College.

I. From the Province Charter granted by King WILLIAM and Queen MARY.

In this Charter after their Majesties Subjects of the Colony, have this Province granted to them, thus and thus bounded, with all Lands— Places— Hereditaments, &c. There follows this Proviso.

PROVIDED nevertheless, and we do for us, our Heirs and Successors grant and ordain that all and every such Land, Tenements and Hereditaments and all other Estates which any Person or Persons, or Bodies Politick or Corporate, Towns, Villages, COLLEGES or Schools, do hold and enjoy or ought to hold and enjoy, within the Bounds aforesaid, by or under any GRANT or Estate duly made or granted by any GENERAL COURT 〈…〉〈…〉 be V••tue of the Letters Patents herein before, recited, or by any other lawful Right or F••••le what••ever, SHALL 〈◊〉〈◊〉 by such Person and Persons, Bodies P••li•••••• and Corp••••••te, 〈…〉〈…〉, their respective Heirs,* 2.4 SUC••ESSORS and assigns forever, here∣after HELD and 〈◊〉〈◊〉, according to the Purport and Intent of such respective Grant, under an 〈◊〉〈◊〉 ••o∣••••••ct nevertheless to the R••nts and Services thereby reserved or made p••yable, any Matter or Thing whatsoever to the contrary notwithstanding.

II. At a Great and General Court held at Boston Wednesday May 28. 1707. and continued by several Prorogations to Wednesday Oct. 29 following, being the third Sessions.

In Council; Thursday Dec. 4. 1707.

THE GOVERNOUR and COUNCIL having Accepted and Approved the Choice made by the Fellows of Harvard College in Cambridge of Mr. John Leverett to be present President of the said College to fill up that Vacancy; Propose that the HOUSE of Representatives consider of and grant a suitable Sa∣lary to be paid to the said President annually out of the publick Treasury-for his Encouragement and Support during his Continuance in said Office, residing at Cambridge and discharging the proper Duties to a President belonging and entirely devote himself to that Service.

And inasmuch at the FIRST Foundation and Establishment of that HOUSE and the GOVERNMENT there∣of had its ORIGINAL from an Act of the General Court made and passed in the Year 1650, which has not been REPEALED or NULLED; The President and Fellows of the said College are DIRECTED from Time to Time to regulate themselves according to the Rules of the CONSTITUTION by the Act Pre∣scribed; And to exercise the Powers and Authorities thereby granted for the Government of that House and Support thereof.

Saturday, Dec. 6. 1707. The Representatives returned the Vote passed in Council the 4th current referring to the College, with their Concurrence thereto; and this further Addition thereon, viz. That the Sum for Salary be One Hundred and Fifty Pounds.

To which the Council voted and Agreement, and the Governour consented

This was the LAST Act of the COURT relating to the Government of said College, and this Act refer∣red that College back again to its original Foundation on the College-Charter of 50. Which had not been REPEALED or NULLED; as the old Colony Law of 42 had been, by the Incorporating Act of 1650. So that the Overseers of said College have now no Power over that College by the Act of 42, but by the College Charter of 50 alone. Which gives the OVerseers of said College only a Power to act with the Corporation and not without them, as appears on Inspection from that Charter itself. And on this Foun∣dation the said College has continued, or OUGHT to have continued, to this present Year of our Lord, 1742.

And if any Persons in the Government of said College, should at any Time go off from this Foundation, and set up a Power INDEPENDENT on said Charter, and SOVEREIGN over the said Corporation; the Ge∣neral Court alone can remand them 2 Second Time back to that Charter again, as the FIRST Foundation of that House and of the Government thereof; and DIRECT them to regulate themselves from Time to Time ac∣cording to the CONSTITUTION by that Act prescribed.

REASONS to prove that the Honourable and Reverend Overseers of Harvard-College have no Independent Pow∣er over the Corporation of said College, nor can Dismiss a Member of said Corporation, solely by Themselves; But that the GENERAL COURT alone have such a Sove∣reign Power; And are the VISITORS of said College.

IN Order to the Proof of This, Let it be Premised.

• 1. That from all the Preceeding Laws it appears that the said Harvard-College was originally the College of the General Court of the Massachusett; Colo∣ny; That the General Court of said Colony built it and named it and ordered where it should be built and what Kind of Building it should be; And that all the Powers which any Persons ever had from the beginning, or now have over the said College, were originally derived to them from the General Court of the Colony abovesaid; so that no Persons whatever can have any Power over the said College, but only so far as the General Court have been pleased to grant it to them.
• 2. It appears in particular that the Overseers and Corporation of said College owe their Being and all the standing Powers They now have, or ever had over the said College, To Four Laws of the General Court which were made in the Year 1642, 1650, 1657 and 1672. The First of which Laws originally constituted Overseers of said College; The Second incorporated the said College, and is called the Charter of 50; The Third is called an Appendix to said Charter; And the Fourth confirmed, added to or altered, some or all of these preceeding Laws. So that no Powers can now belong to the Overseers and Corporation of said College but those Powers which the Court granted to them in some or all of these four Laws.
• 3. That in the two latter Laws of 57 and 72, the Court gave to the Overseers of said College no New Powers of any Importance over the said Corporation; And so there is no Occasion to consider any of these four Laws, but the two First, in order to determine whether the Overseers of said College have an Independent and Sovereign Power over the said Corporation.

Now from these two Laws, which constituted the Overseers and Corporation of said College, it manifestly appears that the Court did not vest the Overseers of said College with such a sovereign Power over the said Corporation; But that the Court, who originally had this Power, reserved it to themselves; And are VISITORS of said College. For

1. The prior Law of 1642, which constitute•• 〈…〉〈…〉 of said College, gave them no Power over that College considered as a Body Politick or 〈…〉〈…〉

This Law was made before the Corporation of said College 〈◊〉〈◊〉 a ••••ING; and therefore it gave the Overseers only a Power ever and unincorp••rate•• College. It was the latter Law of 1650 which fist incorporated said College; for in this Law 'tis exp••••sly

Ordered and ••nacted by the Court, that From Henceforth the said COLLEGE in Cambridge shall be a Corporation.

So that by the Law of 1642 the Court gave the Overseers of said College no Power over that College consider'd as a a Corporation; And therefore when afterwards the Court m••d Harvard-College a Corporation is 1650, so far as this latter Law, which in incorporated said College, S••••••••••ted the Members of this Corporation to the Overseers, so far and no father have the Overseers a Power over the said College or Corpo∣ration. And thus the latter Law supersedes or repeals the former Law of 1642. And this Sense the Great and General Court seem to have put upon the latter Law of 1050; For when in Decemb. 1707 the said Corporation were ordered to regulate themselves according to the original Constitution of the said College, the Court then declared that

The first Foundation and Establishment of That House and the Government thereof had its Origin•• from an Act of the General Court made and passed in the Year 1650 which had not been repealed or nulled.

So that the FIRST Foun∣dation both of that House and the Government thereof had not its ORIGINAL from the prior Law of 1642 but from the latter Law of 1650. And hereon it follows that the Law of 1642 (which was before the FIRST Foundation of that House and the Government thereof) was sat aside and re∣moved out of the Way in order to Lay the 〈◊〉〈◊〉 ••••••n••ation o•• that House and in Government upon the incorporating Act of 1650. And therefore the said Law of 42 is n•• Part of the P••un∣dation of the present House of the College not of the Government thereof. So that by this Law of 42 the Overseers of said College (instead of having 2 sovereign Power over it) seem to have no Power at all over it, not over the Corporation thereof.

A plain Instance may illustrate this Law of 164••: Suppose the General Court in 1642 had ap∣pointed Overseers to order and govern the Inhabitants of a Place, in the Colony, who had not as yet been incorporated into a T••••n; and afterwards in 1650 the C••••rt should have have made the place a Town••hip; — How far would these Inhabitants, now incorporated into a Town, be su••ject to their former Overseers by Virtue of the Law which constituted such Overseers before the Place was made a Town? Could these Overseers turn out the SELECT M••N of that Town 〈◊〉〈◊〉 all future Times after the Place was made a Township? By N. Means! Unless the latter Law, which incorpo∣rated the Place into a Township, gave such a Power to the former Overseers of the Place. Nor would these Overseers have any Powers at all over such a Place, after it was made a Town, unless

those Powers which were granted or confirmed to them in the latter Law which incorporated the Place into a Township.—And thus as to the Overseers and Corporation of the College abovesaid; The Law of 42 which appointed Overseers to said College before it was incorporated, gives them no Power over that College after it was made a Corporation; but all the Powers of the Over∣seers over said College after it was incorporated, are only those Powers which are granted or confirmed to them in the latter Law of 1650 which made the said College a Corporation.

Some truly worthy and valuable teaching Elders of the six neighbouring Towns are of Opinion,

That the Law of 42 abovesaid is the great STANDING Law that contains all the more important and superior Powers over the said College; And that the Charter of 50 was made as a Thing by the BY, and only empower the President and Fellows to do some small Matters; and for the Sake of the College-Stock, it being necessary that they should be a Corporation in Law in order to acquire and hold a Stock.

But in Answer hereto. 1. This Supposition is apparently contrary to the above mentioned Declaration of the General Court, which determines that the Act or Charter of 50 is the ORIGINAL of said College. So that the said Law of 42 is beyond the ORIGINAL of that College, and therefore seems to be out of Date. So far is it from being certain that this Law of 42 is "The great standing LAW—"the LAW that contains all the more important and superiour Powers over the said College. But 2. This Supposition abovesaid is contrary to the whole Strain and Tenou•• of the said Charter of 50 which no longer treates the President and Fellows as in a State of Minority under 〈…〉〈…〉 (though the most Honourable in the Land) but at now grown up to the full Statute of MEN. Thus particularly the said Charter enacts,

That in all great and difficult Cases a general Meeting of ALL the Overseers and Society, or Corporation, shall be procured; and the Conclusion be made by the major Part (of the Corporation) the Overseers consenting thereto

—Is this only a Power in said Corporation to do some small Matters? Or is this treating the President and Fellows as still in a State of Mi∣nority and Pupillage under Overseers, when a general Meeting of ALL the Overseers can make no Conclusion at all, and that in the most great and difficult Cases, but by consenting to a Conclusion made on such Cases by the Corporation? — Thus again 'tis enacted in said Charter,

That the President and Fellows shall forever hereafter in Name and Fact be one Body Politick or Cor∣porate in Law to ALL Intents and Purposes

and therefore not to ONE Intent and Purpose only. viz. The acquiring and holding a Stock, and the suing or being sued on the Account thereof. And thus evidently did the Court by this Charter, manumitt the said College from a State of meer Pupillage to Overseers, and locked on it as now grown up to Maturity and sitting to be incorporatd

with a President and Fellows and to have all the Rights and Privileges of a Corporation in Law; — as truly as in the Instance, above supposed, of a Place in the Colony put under Overseers, in its infant State; but afterwards incorporated when grown up and increased in full Numbers of Inhabitants. And as a Law that incorporates a Town can by a very just Figure of Speech be called the ORI∣GINAL of such a Town, so the incorporating Act of 1650 above-mentioned is, in its own Nature, the ORIGINAL of Harvard-College, as well as it has been declared by the Legislature to Be the ORIGINAL of said College. And therefore

II. The latter Law of 1650, which incorporated Harvard College, and not the Prior Law of 1642, contains those Powers which the present Overseers have over the Corporation of the said College.

Now by this latter Law which incorporated Harvard College, the† 2.5 ONLY Power given to the Overseers of said College is a Power to Counsel the Corporation of that College to act, or to consent to and allow of the Acts of the said Corporation. So that the Overseers of said College have no independent and SOVEREIGN Power over the Corporation of said College, even by that Law which is the only Law that now gives them any Power over that Corporation. To apply this in particular to the POWER of dismissing a Member of said Corporation. [Which let it be noted, is a Case on which this Law is absolutely silent and no where says "WHO have such a 〈…〉〈…〉 the POWER given to the Overseers over the said Corporation, by that Law which appointed and made the said Corporation, is a Power to counsel that Corporation to act or to consent to their Acts; it follows that all the Power which the Overseers can have in dismissing a Member of that Corporation, is a Power to counsel the said Corporation to dismiss such a Member, or to consent to an Act of that Corporation for his Dismission; And therefore the Over∣seers of this College have no Power to dismiss a Member of that Corporation without an Act of the said Corporation for it; What can be more plain?—So that it may f••eely be said (and no Offence is justly offered in saying) that the Honourable and Reverend Overseers of said College, cannot, with∣out a Breach upon the College-Charter, assume the Power to dismiss a Member of that Corporati∣on,

singly by themselves? So far is this Charter from giving to the Overseers of said College a SO∣VEREIGN Power to call a Member out of that Corporation before themselves alone; and try, and judge, and sentence, and turn him out of that Corporation; and all this Time the PASSIVE Corporation are to know nothing, unless by private Notice given them, "What has been doing to One of their Mem∣bers —or "What had finally become of him" 'till the Overseers of said College are pleased to give them Information. This is as foreign to the Design and Spirit of the Law, which incorporated Harvard Col∣lege, as it is to the plain and express Letter of it; and is such a Power as evidently seems to NULL the Charter or must it self be NULLED by it; And which of the Two are to Stand, to General Court alone, who founded that College and who appointed NO Visitors to it, can finally determine and Declare "Whether their OWN Act of 1650 which incorporated that College, or "Whether One unwarranted Precedent, which is subversive of that Act, is ultimately to remain VALID.

It may be added here Ex Abundanti that supposing some Powers granted to the Overseers of said College in the Law of 42, to act solely by themselves, were NOT superseded or vacated by the Charter of 50 which first incorporated said College; Yet all this notwithstanding, 'tis still TRUE that the Power of removing a Member of said Corporation if NOT One of those Powers that CAN be supposed to remain solely with the Overseers After the said Charter of 50 was granted. For since this Power of removing a Member of the Corporation is no where mentioned in the prior Law of 42 (and no Wonder, for the said Corporation and 〈…〉〈…〉 NO Being) it therefore follows that if such a Power is contained at all in that Law, It must be so, because it is implied under some of the GREAT and more important Powers granted to the Overseers in that Law. Now, This, This, brings the Matter to a Point! For the Charter of 50 i•• EXPRESS that the Overseers are to act with the Corporation in all GREAT and DIFFICULT Cases. So that supposing the Law of 42 was in some Respects still in Force, yet the College Charter of 50 comes afterwards and leaves NO Powers in that Law for the Overseers to act solely by themselves in any Cases of GREAT Importance! The Words in the Charter of 50 are these (Not they stand in the Copy of the Overseers CLERK and in some other faulty Copies of that Charter, which ought to be cor∣rected; but as the Words stand in the ORIGINAL Charter itself, and in the RECORDS of the General Court!) That

For Direction in all emergent Occasions, Execution of all Orders and By-Laws, and for the procuring of a GENERAl Meeting of ALL the OVERSEERS and SOCIETY in GREAT and DIFFICULT Cases, and in Cases of Non-agreement; In ALL which Cases aforesaid, the Con∣clusion shall be made by the major Part, the said President having a casting Voice, the OVER∣SEERS

Consenting thereunto.

—Now here if by the Term "Society" is meant† 2.6 the College in general, including the President, Fellows, and all its Members; Or if by that Term is meant the "SOCIETAS" that is, the Company of SOCII, which with a President are the Corporation of SE∣VEN appointed in this Charter; 'Tis still, either Way, True that in difficult Cases and in great Cases a General Meeting of ALL the Overseers and of all the Corporation is to be PROCURED‡ 2.7, and in ALL such Cases (as it expresly follows!) The Conclusion shall be made by the major Part (of the Cor∣poration) the President having a casting Voice, the Overseers CONSENTING thereunto. And thus 'tis evident to the Degree of Demonstration, that in NO great Cases and in NO difficult Cases had the Overseers a Power left them to act solely by themselves, after the Charter of 50 had incor∣porated said College! So carefully has this Charter guarded against an Independent and SOVEREIGN Power in the Overseers of said College to act without the Corporation in Matters of GREAT Mo∣ment. And so far is this Charter from granting or allowing 〈◊〉〈◊〉 the Overseers a Power of acting, WITHOUT the Corporation in such Cases, that this Charter neither grants or allows it to the Over∣seers, even acting WITH the Corporation, unless a GENERAL Meeting of ALL the Overseers and of ALL the Corporation be procured for Concluding on such Affairs of Importance.

This is the Purport and Intent, this is Spirit, Soul and Body of that Charter (and which No Power can alter but THAT Power which can destroy this Charter itself) viz. That Cases of Im∣portance should be transacted in a General Assembly of the WHOLE Government of Harvard-Col∣lege: And not 〈◊〉〈◊〉 be determined on by a PART, or, when unhappily divided and disagreeing in their Judgments, by "a Party. Hence then to apply 〈…〉〈…〉 and important a Case as the dismissing a Member of that Corporation; 'tis demonstrable

• 1. That a GENERAL Meeting of ALL the Overseers, without a Meeting of the Corporation that is general also! can have NO Power by Charter to dismiss a Member of that Corporation. And
• 2. Much less have a general Meeting of all the Overseers a Power to dismiss a Member of that Corporation without any Meeting at all of the Corporation, procured for that End. And
• 3. Much less still have the Overseers of said College

• such a Power, without a general Meeting even of their OWN Members procured for that End.

— As in a late Case without a General, or even any Meeting of the Corporation, and also in the Winter Season and Recess of the General Court when there was not and could not be a general Meeting of the overseers themselves, some of those Magistrates and Teaching Elders, who are mention'd in the Law of 42, Met together and assumed to themselves the SOLE Power of turning out what Members of the Corporation they though sit. This was such an apparent receding from the Foun∣dation of Harward-College that if a few more Precedents of the like Sort were Submitted to, it would settle such a Power over that College that nothing could prevent the Ruin of its Constitution unless the Great and General Court, whose College it is, INTERPOSED and determined, as they did the LAST Time they Interposed "That the FIRST Foundation of that College and the GOVERNMENT thereof had its ORIGINAL from an ACT of the Court made and passed in the Year 1650, And ordered and 〈…〉〈…〉 that according to that ACT the Overseers of said College should make NO Conclusion in GREAT and difficult Cases unless it were in a general Meeting of ALL the Over∣seers and Society, or Corporation, UNITED.—Without such a Remedy, the Consequences of the Overseers dismissing Members of the Corporation by themselves alone, when they have no such Power BY Charter, may be these: "That possibly, in Times to Come, so many Members of the Corporation may be dismissed solely by the Overseers, and so without any competent Authority, that those who succeed into their Places wou'd be meerly Members of the Corporation De Fa•••••• while those who were thus dismissed would be still Members of the Corporation De Jure. And t•••••• by Degrees there might be a Corporation De Facto, in Opposition to a Corporation De Jure. And THEN what would become of all the COLLEGE-STOCK!—It would no longer be in the Hands of a Corporation De Jure but only in the Hands of a Corporation De Facto, that is, in plain English, It would be in the Hands of NO Corporation at all!

And yet if any Person belonging to Harvard-College offers to lisp this real and most certain Danger of all Things in that Society, He is industriously represented as One who is going to ruin the College! Who is striking at its Foundation—Who is undernuning its Government—And betraying all Things into the Hands of the CHURCH—Just as if the Clergy of the Church of England would not RE∣JOYCE to see the Day when That College should be a Corporation De Facto with a VAST Trea∣sury, in Opposition to a Corporation De Jure with NO Treasury at all! THEN would be the Time for them to cry "Down with it—Rase it, rase it, even to the Foundation. —Or rather this Cry would be prevented with a Laugh at a Society that like the foolish Woman in the Proverbs Plucketh down her House with her own Hands; And thus such a Suggestion that "The COLLEGE is in Danger

(and not that "The CHURCH is in Danger") answers itself, and is as STUPID as it is VIL∣LAINOUS. The Stupia•• Part, no Doubt, came from some Teaching Elder in the COUNTRY; and the Villainous Part from some Long Chin who with his Brethren in Iniquity care not One SIX PENCE "What becomes of that College; or the Education of Youth in it: or whether the Tutors be∣longing to it, can examine Freshmen; or be able so much as to understand the BOOKS which they hear their Classes recite out of!—Or How many Thousands per Annum were squandered away by Parents for the Education of their Children in this sort; if ever it should so happen in future Times that such a Course of Things should prevail in that Place—THESE are the Men that want nothing but to keep the State of that Society in Darkness, and then (if they cou'd have the Influence of the Government in it) they know that they should be "The RULERS of that DARKNESS.—

BUT to resume the Argument drawn from the Clause in the Charter above cited which leaves NO Power in the Law of 42 for the Overseers of said College to act solely by themselves in any Cases of great Importance. "There is something still further remarkable with respect to these Words in the Charter of 50; and it is this; that the same Words are repeated over again without any real Al∣teration in the th••••d Law relating to the College; though the manifest Design of the Law was to explain and a•••• some Parts of this Charter in Favour to the Overseers of said College. Now in this Law of 57 'tis expresly said, that

for the procuring of a GENERAL Meeting of the Overseers and Society in GREAT and DIFFICULT Cases, and in Cases of Non-agreement—In All these Cases the Conclusion shall be valid [viz. for the procuring such a Meeting] being made by the major Part of the Corporation, the President having a casting Vote.

—So that this Law confirms it over again and shows it to be the continued as well as original Sense of the Legistature, that in ALL Cases relating to said College which are difficult Cases or great Cases a GENERAL Meeting of the Overseers and of the Society (or Corporation) are to be procured.—And which Way the Conclusion shall be made on these Cases, when such a united Meeting of the Overseers and Corporation is procured, this Law does not say—And therefore does not alter! That is, this Law leaves it of Course without Alteration to the College-Charter of 50 which had already so clearly de∣termined that Point, that it needed No Explanation when this explanatory Law was made!

So that supposing t•••• Thousand Times over (and LET the Ho••••••••s and Ch••••••y's of the Age, turn this Argument round and round 'till their HOT Heads grow giddy with it) "That the Over∣seers of said College had Some Powers left them to act solely by themselves after the Charter of 50 was granted; yet 'tis still TRUE that the Charter of 50 and its Appendix in 57, show the Original and Continued Sense of the Legistature to be "That in all Difficult Cases and in all Great

Cases such a Power was Vacated from the Day and DATE of Charter of 50! And that in Lieu of this Power, both the Charter of 50 and the explanatory Law of 57† 2.8 gives to the Overseers (and that in a General Meeting of ALL their Number) only a Power of counselling and consenting to Acts of the Corporation in great and difficult Cases.— How then is it possible for the Overseers of said College (against Both these Laws, and without any Law for it) To have the SOLE Power in so Great and Difficult a Case as That of removing a President or any other Mem∣ber of the said Corporation. It Ought to be spoke out freely, "That, such a Power is an IMPOSSIBLE Power! And whenever it is assumed, all its Acts are essentially Nullities. And therefore all that was done in a late Case, Novum••et ante hune diem inauditum, from Oct. 21. 1741, to April 1. 1742, was and is in it self Null ab Initio; and there Now exists a certain Member of a Corporation De Facto, in Opposition to one De Jure.

Some of the Consequences of which (together with the assuming a Power to make Members of the Corporation De Facto in Opposition to those that are so De Jure) 'Tis of the last Impor∣tance to consider more at large than as yet they have been. 1. In such a Case while Some only (and not the Major Part) of the Members are meerly De Facto Members of the Corporation; 'Twill be utterly uncertain whether any of their Acts are VALID or not: And that for this plain Reason; Because so many of their Votes may turn upon the Votes of a De Facto Member, whose Vote will be no Vote at all De Jure: And so the Votes of the said Corporation ••••••mselves (when ••urning on such Votes) will really 〈…〉〈…〉 at all 〈…〉〈…〉 is chosen a Member of that Corporation, in Fact, he will not be a Member of that Corporation of right; Which (by the By) will be a quick Way of making the Majority of that Corporation to consist of meer De Facto Members only! And thus when any Money is let out, who can say whether 'tis rightfully let out or not; or when any Lands or Tenements belonging to said College are‡ 2.9 leased,

the Validity of such Leases when depending on the Vote of a De Facto Member are no Lea∣ses at all; And if any Person to whom such Lands or Tenements are leased, should refuse to pay Rent or when his Lease is expired should refuse to quit his Posession; What intricate Confu∣sion on this, as well as on the several other Accounts abovesaid, would be introduced into all the Affairs of that Corporation. And what perplexed Difficulties (to the Sport of WICKED Law∣yers and to the Grief and Concern of GOOD Ones) would the introducing one single De Facto Mem∣ber, Occasion to that Corporation in recovering, not their Rents which in such a Case they could not do, but even their own STOCK into their Hands again. Do the ra••a, mad, headlong Young teaching Elders think any Thing of such TERRIBLE Consequences when they appear so* 2.10 keenly Eager to vote to themselves the Sole Power to turn out any Member of that Corporation; when such a Power belongs not to them by Charter; And thereby that Member being still a Member De Jure, his Successor can be only a meer De Facto Member, i. e. No Member of that Corporation at all; And thus they would assume a Power to fill up that Corporation with meer De Facto, Members and so to dissolve it! —This calls ALOUD for the Interposition of the Le••••slature, to reduce these young Elders within their proper Bounds; and to put a Stop to such Confusion Before it be too Late.—ALL these are the Beginning of Sorrows—But the END is not yet. Tho' by a SION that has been given th•••• is Reason to think that it is NEAR even at the DOORS. For 2. When once the Overseer•• of said College have assumed to themselves the Sole Power of dismissing any Members of the Corporation abovesaid, the Consequence will be This (Since it has been demonstrated that they have NO such Power By Charter!) that all the Members of said Corporation, that succeed into the Place of Those who are Thus dismissed, will be meer De Facto Members of said Corporation! And when a few such are actually made (and ONE is already made!) Then the major Part of said Corporation will soon come to consist of De Facto Members. And what now will follow!— Why these Things. "That all their Acts will be Null and VOID; That a meer De Facto Cor∣poration will be the only Corporation existing; and thereon that all the College Stock will be Left and SUNK! For Query; Could a meer De Facto Corporation SUE by Charter—when by Charter they are NO Corporation at all! Could such a Corporation recover any Monies let out into the

Hands of others! Or could they get in the Rents of all the Lands or Tenements ONCE possessed by a De Jure Corporation of said College!—What if those who had such Monies in their Hand, or were in Possession of such Lands and Ten••ments should refuse to pay the Just Interest and Rents due for them! And not only so, but also keep those Monies or Lands and Tenements in a SUIT! Could not a Lawyer successfully force and PUSH their Cause against this meer De Facto Corporation, before any Court in the Province? Most certainly!—Yea, the Credit of such a Corpo∣ration would at Length run so Low that the very FERRYMEN would stand Suit against them. For these listening Ferrymen would soon find out, from the infinite Numbers of Passengers whom they were perpetually rowing over, that "there was No Corporation to sue them for their Ferry Rent." And thereon feeling Themselves at the End of the Year to be "RICH MEN; And none to demand a single Half-Pence of Ferrage Money at their Hands.—They would at once take it into their Head, to quit all their Boats, and putting their Negroes into them, would set up for JACK Gen∣tlemen and perk it in the Face of their old MASTERS. This is comical enough; But yet any Lawyer in the Land if he was asked the Question in earnest "Whether in this Case they could have such a Right? "He would DECLARE that it was a Serious Truth! And thus the WHOLE College-Stock (which 'tis the Interest of said College, to have constantly Out at Use;) would be in the Possession of those to whom it was Let: And a meer De Facto Corporation could never recover either Principal or Interest 〈…〉〈…〉 College.—What then would become of it! It would either be held and enjoyed by the present Lucky Possessors or revert to the Donors and their Heirs, or "Escheat to the KING. And which of these would de the Consequence, the Writer of this Paper is oblig••d in Modesty not to determine but would leave to Those who are Masters of Law.

And thus the Dissolution of all Things is at Hand! in said College when once a Member of that Corporation is dismissed without a competent Authority; The Same Power can dismiss ALL the Members of that Corporation; And then every Thing will return to its primitive Chaos; And the said College will no longer be called "Harvard College; but be a" TOHU BOHU; without Form and VOID,—And DARKNESS will be upon the Face of the DEEP.

Enough, and perhaps more than Enough! has been said on this second general Article, viz.

That the CHARTER of 50, and not the Prior Law of 42, contains those Powers which the present Overseers have over the Corporation of said College.

—And now on a Cool Review of the main ARGUMENT, and the particular Reasonings under this Article, it may at Length the Justly affirm∣ed

• 1. That the Charter of 50, which incorporated Harvard College, gives to the Overseers a Power only to counsel the said Corporation to act, or to consent to their Acts. And therefore in such a Case for Instance, as the dismissing a Member of that Corporation, the Overseers of said College can do no∣thing by CHARTER, but Counsel the Corporation to Dismiss such a Member, or Consent to an Act of that Corporation for his Dismission.— Which has never yet been done, from the Time that the said College in Dec. 1707. was set again on its first Charter of 50. to this present Day July 7.1742. as appears from the VOTES of the Honourable and Reverend Overseers Themselves;— And therefore Member of the Corporation has been dismissed during this WHOLE Interval or Period of Time.
• 2. That Supposing the Charter of 50 Did not in ALL Cases supersede the Law of 42; yet it certainly supersedes That Law so far as it respects GREAT and Difficult Cases; so that in ALL Such Cases of Importance, the Over∣seers of said College cannot act on the old Law of 42; but are to act on the Charter of 50 in Con∣junction with the Corporation, and That in a General Meeting of ALL the Overseers and Corporati∣on, not meerly notified or warned, but PROCURED!—And therefore in so Great and Difficult a Case as the removing a President or Any Member of that Corporation, the Overseers of said College can∣not Allow of or Consent to an Act of that Corporation for the Dismissing such a Member (which by CHARTER is All that the Overseers Can do in such a Case) unless a General Meeting of ALL the Overseers and Corporation be Procured for that End. And
• 3. That the APPENDIX of 57 con∣firms all these Reasonings to he TRUE.

And shows the Sense of the Legislature to be the same on these Point•• 〈◊〉〈◊〉 which it was at first when the Charter of 〈◊〉〈◊〉 was granted. And it appeare that the Legislature never altered their Sense of these Matters, but on the contrary, showed This to be their Sense over again, the Last Time they INTERPOSED to regulate the Constitution of said College, When in Dec. 1707. The Court Referred Harvard College back again to the Act of 50 as the ORIGINAL of THAT House, and of the GOVERNMENT thereof; N••w on This Act all these Rea∣sonings are grounded, And That as on their ORIGINAL likewise! and being thus placed on the same firm BASIS as Harvard College itself is, They must Stand or Fall! with THAT House and the GOVERNMENT Thereof.—So that from all these concurring Arguments it appears to be an Impossibility in LAW that the Overseers of said College, should have the Sole Power in themselves to dismiss a Member of that Corporation. And therefore if they have any Power, in such a Case, it must be in Conjunction With the Corporation and not Without Them!—Which is the next Thing to be considered and perhaps may be effectually disproved. For

III. The Law, or CHARTER, which incorporated Harvard College, grants not the Power of B••∣ing a PRESIDENT or ANY other Member of the Corporation, to the Overseers and Corporation of said College in Conjunction:—Any more than it does to EITHER of the•• singly and a Part.

Here let to be noted that a Guard was placed at the very Entrance on the last general Article (page 18) against such a Power, as being no where granted in the Charter of 50, either to the Overseer••, or to the Corporation, or to Both conjointly. And thus the General Argument on this Head, in the Preceeding Article, is carried on Hypothetically and by Way of Supposition only. viz.

That IF the Overseers of said College had any Power in such a Case, it must be in Conjunction with the Corporation and not without Them.

But now the Writer of this Pamphlet comes to argue Categorically and Directly against such a Power in the Overseers and Corporation of said Col∣lege. And therefore to BEGIN.—By the Charter of 50 the Only Power granted to the Overseers and Corporation, in this Case, is

To make a NEW Member of the Corporation so often and from Time to Time as any of the Former shall DIE or be REMOVED.

Here the Law stops short: And no where says "HOW or By WHOM, a President or Fellow of the Corporation shall be removed; And so the General COURT having this Power originally in Themselves, over their OWN Col∣lege! And not here granting it to any Persons whatever, this Power therefore remains Still in the COURT; and the COURT alone have it to this Day:— As None but the COURT had such a Pow∣er Before the Overseers and Corporation were appointed by the Law•• of 42 and 50, when they dis∣missed Mr. Eaton from his Presidency in said College; and as None but the COURT had this Power After the Overseers and Corporation were appointed, and FULLY invested with ALL their Powers, when in 1654 the Court delegated the Overseers as their Committee to treat with the 〈◊〉〈◊〉 President Mr. Dunster, and to receive his final Resignation, and to make RETURN to the Court of what they had done in that Affair, and the 〈◊〉〈◊〉 never after 〈…〉〈…〉 Law, granted this Power to any Persons whatever.

Now to clear this Argument from that MIST of Obscurity, which modern Notions and some No∣vel Practices have cast upon it, let those Premises be again considered which were laid down a•• the Beginning of this Discourse, viz.

That Harvard College was originally the College of the Gene∣ral Court; for that Court built it, and named and endowed it, as well as incorporated the same. —Therefore ALL Power over that College was originally in the General Court alone.—There∣fore NO Powers over that College which have not been actually granted to others by some Law, CAN belong to any Persons whatever, but are Still the Powers of the Court, at tru•••• as they were at the Beginning when all Power over that College existed in the General Court alone, before the Times wherein the Court gave Some PART of their Power, ever THEIR OWN College, to the Overseers and Corporation by the Acts of 42 and 50.

—So that ALL Powers whatever that have not been communicated to the said Overseers and Corporation, by some positive Law or Grant from the General Court, still continue in that Court; as the Water which has not as yet been communicated to the S••rian or Rivulet still continues in the FOUNTAIN.— This is a certain Truth as to the Power of remov∣ing a Pre••••dent or Any Member of that Corporation; for there is no Law or Charter whatever in which

the Court has communicated this Power to Others; and therefore this Power remains in the Fountain of ALL Power over that College, which is the GENERAL COURT alone! If any Thing farther need to be added, in so plain a CASE! there are two Things that may be urged which put it out of all Question that the Ge∣neral Court reserved this Power to Themselves among other Powers of VISITATION which the Court never granted to any Persons whatever!

1. The First is that the explanatory Law of 57 is more Silent on this Power than the Charter of 50 itself! Now one great Design of this Law of 57 was to explain or determine what might seem obscure and undermined in the Charter of 50; and of all Cases that needed to be explained or determined in said Charter, This Case (supposing it to be contained in that Charter!) needed it the most; take it either Way, viz. as a Case not determined at all in that Charter, or as of Importance to be determined and not fitting to be left at a loose!—Yet does that explanatory Law leave this Clause in the Charter (which barely mentions the removing Members of the Corporation, without mentioning who had the Power to remove them) at as great a loose as it was before! And though this Law descends to such little Affairs as "How the Corporation should hold a Meeting to agree with College-Servants and be responsible to the Overseers for all such Agreements; yet this Law says not one Word on so great and so undetermined a Case as this "Who should have the Power of removing a President or Fellow of said Corporation" which (on both the Accounts above) needed more to be explained or determined by this Law of 57 than any Thing in that Charter whatever. Nothing therefore can account for the Reason why this explanatory Law should pass over so important a Matter in Silence, but this, viz. that such a Power, not being granted in said Char∣ter to any Persons whatever, was never looked on in those Times to be contained in that Charter at all. And THEN the Wonder ceases why this explanatory Law did not determine or settle" Who had or should have such a Power; for this Law was to explain or determine what was IN the said Charter, and not this Power which was Still in the General Court (for who can imagine that the Court in this explanatory Law designed to explain or settle their OWN Powers?) And hereon also Another Wonder ceases viz. Why the Overseers of said College should be so wanting to Themselves as no to put such a Thing into their Proposals to the Court for Explanation (though these PROPOSALS, which were for the Benefit of the Over∣seers, was the very Occasion of making this Law itself, as appears from the Preamble.) The Reason hereof seems to be very plain viz. Because ALL Parties concerned with the Government of the College were conscious, in those early Times which were so near the Time wherein said Charter was granted, that the Power of removing the President or any Member of said Corporation was never given BY Charter to any Persons whaterver, but that the Court had reserved it to themselves. And therefore if one (among the rest) of the PROPOSALS of the Overseers to the Court had been to explain or determine "Who had the Power of removing the President, or any other Members of the Corporation, on Male-Administration of when guilty of sundry Crimes and Misdemeanours; The Overseers of said College (with all due and sincere Deference to them be it mentioned) might have been honourably reminded by the Court "WHO had This

Power in Themselves but three Years before, in the Case of President Dunster "When the Court thought fit to appoint the Overseers (without joining the Corporation with them) as their Com∣mittee to manage that Affair, and "to make Return to the Court of what they had done therein."

2. Another Thing which puts it out of Question that the Court reserved this Power to Themselves, is, the manifest Difference made in the Charter between the removing a Member of the Corporation and removing inferiour College Officers and Servants. Now to exhibit this to Eye sight, let those two Passages be laid together, which are the only Passages in the Charter that mention the removing of Both these Kinds of Officers.

The Chusing and Removing Members of the Cor∣poration by Charter.

And the said seven Persons or the greater Number of them procuring the Pre∣sence of the Overseers of the College, and by their Counc••l and Consent shall have Power, and are hereby authorized, at any Time or Times to ELECT a new President Fellows or Treasurer so often and from Time to Time as any of the said Person or Persons SHALL die or BE removed

—

FINIS to This Power granted in the Charter!

The Chusing and Removing College Servants by Charter.

And the President and Fellows, or major Part of them, from Time to Time may meet and CHUSE such Officers and Servants for the College, and make such Allowance to them, and THEM also to REMOVE, and after DEATH or REMOVAL to chuse such others—as they shall think Fit.

Thus equally express and particular is this Law in specifying Who should have the Power of chusing Both these Kinds of Officers. But when it comes to say Who should have the Power to remove Then. -THEN appears the Difference! for as to the small Power of removing College Servants, the Law is as plain and express "Who should have That Power, as it is "Who should have the Power to Chuse them. But as to the important Power of removing Members of the Corporation (which in Law can exist separately from the Power of chusing them, as well as in Conjunction ••••••h it, and often does so in Colleges abroad) Here the Law is all over altum Silentium—Not a Word is said who should have this Power!—Now what Reason can be assign'd for so manifest a Difference, 〈◊〉〈◊〉 ••his? viz. That the latter Power being of so much greater Importance than that of removing College Servants, the Court who had All Power originally in themselves over this College (and who therefore could sover∣eignly grant the Power of chusing without granting t•••••• ••ower of removing, just as they pleased) did not intend in this Law to grant the important Power of removing Members of that Corporation, out of their own Hands; but thought fit to reserve it to themselves, among those Visitatorial Powers which the Court originally had over this College and never granted to Any Persons whatever.

The only Objection that can be here made has, in Reality, been obviated already, viz. That

tis implied of Course, and in the Nature of the Thing that those have the Power of removing who by Charter have the Power of making Members of the Corporation; since the Court mention not, in

the Charter, who should have the Power of removing them or grant it to others.

But this Objecti∣on suppresses one Half of the Truth; if the Whole Truth had been given, the Objection would appear inconclusive a•• first View: Thus

that 'tis implied of Course and in the Nature of the Thing [••••ther] that those, who by Charter have the Power of making Members of the Corporation, have the Power of removing them [or else that the COURT, who originally had this Power, did not part with it at all, but reserved it to themselves] since the Court mention not in the Charter who should have this Power or grant it to others.

Now that the latter of these Suppositions is True, appears by what has been said already; and may further appear beyond Contradiction by what follows. For 1. The Former Supposition (on which the Objection is grounded) no Way accounts for the Reason why this Law so expresly grants the small Power of Removing (as well as chusing) the inferiour Officers; and yet makes no Grant at all of so much greater a Power as that of removing the Superiour. Whence comes it to pass! that this Law does not leave the lesser Power of removing College Servants, to be implied of Course in the Power of chusing them; as well as according to this Supposition, it does the greater Power of removing Members of the Corporation?—If this Law had not expresly mentioned who should have the Power of removing Either of these Kinds of Officers, the Objection would then have been of some Force— Or if the Law had expresly mentioned who should have the greater Power of removing Members of the Corporation and had said nothing about the lesser Power of removing College Servants; then it might have been supposed (what seems to be the true Way of arguing in such Cases) that the Greater Power being granted, the Lesser was left to be understood and so implied of course. But since, unfortunately, for the Objection 'tis quite the contrary. "What possible Reason can be given [if this Law supposes of course and in the Nature of the Thing, these are to 〈◊〉〈◊〉 the POWER of removing who have the Power of making College Officers] that the Law is not as silent on the petty Power of removing a College Ser∣vant, as it is absolutely silent about the important Power of removing a President or other Members of that Corporation? This is easily accounted for, on Supposition that the Court reserved this greater Power entirely to themselves; but 'tis impossible to account for it on Supposition that the Court made NO such Reserve. 2. There is no Connection in the Nature of the Thing between the Power of removing and the Power of putting into Office. So that it cannot be inferred that both these Powers are granted only because One of them is so. Yea 'tis utterly untrue in Fact that those always have the Power of removing, who have the Power of putting into Office. And of this the Representatives themselves, belonging to that Honourable Court who made this Law, are a known and publick Instance! For by the Choice of their respective Towns they are made Representatives; but their respective Towns, 'tis well known, have not the Power of removing their Representatives from out of the General Court; But the House, alone, who have not the Power to make Representatives for the Province, have yet the sole Power to remove them from their Place in the House. So that 'tis not true either Way, that those have the Power

of removing, who have the sole Power of putting into Place or Trust; nor those the Power of putting into Place, who have the sole Power of removing a Person from Place or Trust—and that from one of the most Honourable PLACES and Trusts in the Province. Thus it appears, from so eminent an In∣stance, that there is no Connection in the Nature of the Thing between these two Powers.—In Truth, they are sometimes granted and conveyed separately and sometimes in Conjunction, just as the supreme Power from whom they are communicated thinks fit. Certainly then a General Court who originally had these two Powers over a College that was a Creature of their OWN, may grant the One and sovereignly keep the Other to themselves without granting it at all. Now an absolute SILENCE, under some Circumstances, upon One of these Powers (when the other is expresly and formally granted) is every Way equivalent to an Exception; and so makes an express Negation of such a Grant to be intirely superfluous. And of this sort is that Silence in the Charter on the Power of removing Members of the Corporation; for, by what has been observed above, it can be accounted for no other Way. But 3. and finally to de∣cide this Matter "On which Side of the Question are ancient Practices upon this Law? These are the best Expositors of ancient Laws. Now let the Case of President Dunster (p. 5. & 9—12 of this Paper) be read over in View to the Charter on this Point, and it will appear that no Comment ever determined the Meaning of a TEXT better than the Account of this Case determines (what the Charter has not expresly done) by whom the President, Fellows or Treasurer SHALL be removed! —The JUDGES on this Law (as Visitors) in his Case, were the Legislature who made the Law. And who can explain or determine the Sense of a Law so well as the Legislature who made it?—particularly if a great Part of that Legislature consists of the same individual Persons who framed and passed such a Law; which, from the Elections in the Records for the Year 1690 and 〈◊〉〈◊〉 appears in this Case to be 〈◊〉〈◊〉!— The Overseers and Corporation also to whom the Charter of 50 was granted, consisted by a great Majority of the same Persons in 1654 when Mr. Dunster was dismissed, as they did in 1650. So that the generality of all Persons concerned in his Case must have had a perfect Understanding and even personal Knowledge of the Powers granted in the Charter; and of the Reason of that SILENCE in it, on the Power of removing Members of the Corporation. The Time also was so near the Time when that Charter was granted, that the very IDEAS of the several Power put into it, and the Import of the Clause that is so Silent on the Power of removing Members of that Corporation must have been fresh and lively in the Minds of all these Persons who were concerned in his Dismission. And now with such singular Advantages to know and to judge of the Sense of this Law "How 〈◊〉〈◊〉 the all judge and act upon it in his Case? Why ALL alike! —with the same Sentiments, the same Views of the Charter on this Point.—Thus Mr. Dunster when he found he must resign, appears to be at no Loss "To Whom to resign. And thus the Court, to whom he resigned, ap∣pear to receive his Resignation as a Matter the Cognisance of which belonged properly to them; and

as what came regularly before them, without coming at all before the Overseers and Corporation! —And when the Court delegated their Power to the Overseers as their Committee to manage this Affair and make Return upon it, they do it just as they might have appointed any other Persons to do the same Thing for them!— Nor is there the least Appearance that the Overseers or Mr. Dunster or the Corporation ever thought that his Dismission, without Any Act of the Overseers and Corporation for it, was not altogether according to Charter; nor did ANY of these Gentlemen thro' the WHOLE of their long Conferences and mutual Replies (which lasted so many Months and gave them all so much Oc∣casion to canvass this Point) ever once suggest that the Power of removing that President was vested by Charter in the Overseers and Corporation. Not a Man of them ALL appears to know (what, with the Advantages above described, they must have known! if it had been implied in that Charter at all) that "Those had the Power of removing Members of the Corporation who by Charter had the Power of making them such."—And yet 'tis now pretended by some of their late Posterity (who are of Yester∣day and know nothing) that 'tis so clear and obvious a Sense of the Charter that those should have the Power of removing who have Power of chusing, that 'tis implied of course and in the Nature of the Thing "ridiculous. Such modern Refinements on the Charter which some Children of our Forefathers have made long since their Day, are of NO Account; while the UNITED Sense of the original Grantors and Grantees, in the only Instance of dismissing a Member of that Corporation, is on the other Side of the Question; and every rational Argument, grounded on the Silence of the Charter, and the Silence of the Appendix to the Charter, is on the same Side of the Question also. It having been shewn that such Silence could no Way be accounted for but by taking it (not as implying of courss a Grant of such a Power, but the reverse) as indicating that the Court made no Grant of this Power at all, but reserved it to themselves—Nor does it seem in the least strange that the Power of ••••••••••ing Members of that Cor∣poration should be separated from that of chusing them; or if it did, 'tis nothing to the Question; for as Chief Justice Holt observes on the Power that Founders of Colleges have in such Cases,

The Question is not, What is reasonable for the Founder to do, but what be has done on perusal of the Statute.—His WILL is his REASON in disposing and ordering his OWN.

And thus in the present Case; If it appears (as it plainly does on Perusal of the Statute!) that the Court as Founder has made a Separation of these Powers; the sovereign WILL of the Legislature in disposing its OWN after this Man∣ner, is and OUGHT to be "Reason sufficient" for All beneath them to acquiesce in — supposing no other Reason could be assigned; which yet is not the Case in the Instance before us, for a wise and just Reason 〈◊〉〈◊〉 obvious: — The important Powers of Visitation were never granted in that Charter; Now the Power of removing Members from out of that Corporation is of as great Importance as most Powers of Visitation are, and is of much greater than that of electing Members into it. So that these two

Powers might with very good Reason be separated; and the Greater be reserved (on the same wise Reason that ALL Powers of Visitation were reserved) while the losser was granted. For as to elect∣ing such Members; No Person among a fit Number of Candidates has an antecedent Right to be chosen, and so is not legally injured if passed by; Nor can he claim an Appeal, if not chosen; Nor does it really imply that he is criminal in the Eyes of the Electors. But 'its quite otherwise when a Person already in a Corporation is turned out of it. This must be for Crimes; and high Crimes; the World will so take it; and his Credit as to any future Trust or Place, and even in the common Employments of Life for Subsistence, may suffer on this Account. The present Presi∣dent (his own Conscience being Witness!) Would look on it as more ignominious to be turned out of his Place in that Corporation, than never to have been chosen into it at all, but have continued on his Ministry in the Church of which he was teaching Elder, Now it has often happened in Colleges abroad (and been as often lamented by the best Friends to such Societies when it has hap∣pened) that some Presidents and Heads of Colleges have been Set and Bent on aggrandizing them∣selves and enlarging their own Power by all Manner of Ways and Means. In one Word, "The Constitution which gives them No negative, and on which therefore they are but PRIMI inter PARES is what they cannot bear! Nothing short of BASHAW. Government will content them. And with a few leading Members gained over to their Side, and some others intimidated, they can compass their Ends and Tyrannize over the Rest of their EQUALS who only stand up for the Rights of their own Place and the Priviledges of such Societies against the ambitio•••• Heads and Presidents of this Sort, who will never leave till they have made such troublesome Equals fall Victims to these TURKISH Politicks. Now since in this Court, which incorporated Harvard-College, there were many worthy and learned Gentlemen, who had been educated in Colleges abroad, they must have seen ENOUGH of this Mis∣chief! To excite their Care to guard against it in a College they were then founding in this Land; and therefore they might judge the most effectual Way to prevent it, was to put NO such Power into the Charter, as That of amoving Members of that Corporation, which 'twas the Interest, and so of∣ten the Inclination of Heads and leading Members of such Corporations to Abuse. And thus the Court in their Wisdom might think fit to reserve this important Power among those Powers of VI∣SITATION which were never granted in that Charter at all; and among which, according to chief Justice Holt, the FOUNDERS of Colleges can reserve just what particular Powers they please. This leads in the last Place to consider who are the VISITORS of Harvard College, and therefore to say—

IV. THE GREAT and GENERAL COURT who founded Harvard College, and appointed No Vi∣sitors to it, when they finally incorporated the same, are the Sole local VISITORS of that College.

Colleges must have Visitors! "Every College, says Holt on Colleges, hath a VISITOR either by to Appointment of the Founder, or the Law" so that if the Founder appoints no Visitor himself, the Law will do it for him. To imagine therefore that Harvard College has no Visitor is not only a vain Fancy but a dangerous Delusion!—If that Society has none, the Conclusion is short "Har∣vard College is NO Corporation in Law" And Then what will become of all their STOCK. 'Tis, on this Supposition, gone for ever out of the Hands of those SEVEN that pass by the idle Name of President and Fellows of Harvard College."—The very FERRYMEN will despise them! And those must be weaker than FERRYMEN who give any further Donations to an unincorporated Number of Men that can re∣ceive none, or Let them to Use, or sue for them in again, by any NAME that they dare publickly own and can maintain in Law. But if that College is a Corporation, the Conclusion is as short the other Way, that "VISITORS there are and must be Somewhere", and These can call the whole Body of them to Account and make the loftiest Head of that College to TREMBLE if they find him spoiling his LORD's Goods or smiting his Brethren with the FIST of Wickedness. The Power of VISITORS does not de∣pend on any accidental or local Customs or Laws. It depends not even on the Appointment of the Founder himself! But has a necessary Existence; and his Heirs will have it after him, if he appoints no VISTOR to a College or his own rounding. Now the Court alone founded Harvard College, and appointed no Visitor to it. So None but the Court could be the Visitors; and therefore, as Heir, none but the Legistature is or can be the local VISITORS of this College.

Here let the Proof of this 4th Article and the general Assertions under it be made out. The grea∣ter Part shall be taken from what Dr. Ayliff (i. e. L. L. D.) has written in his Account of the Uni∣versity of OXFORD," in which this Doctor of LAWS has treated at large on the Power of Visitors as warranted by Custom, Law, and common Right. Here then 1. It must be said that Harvard Col∣lege is a LAY Corporation.

A College, says the Dr. Vol. 2. Pag. 52, is an ecclesiastical Corpo∣ration, by Cannon Law, if the Number of Clerks exceed or equal that of Laymen: If not; 'Tis confessed to be a LAY Corporation.

Now in the Charter of 50, which is the sole Foundation of Harvard College as a Corporation, there is no Provision made for any Clerks at all! And so 'tis accidental to that Foundation, whether those who are upon it be Clerks or Lawyers or Physicians. Yea as to the Fact, viz. What Function the first SEVEN on that Foundation happened to be of, it appears there were six Laymen to one Clerk. Yet further, if the Overseers were here considered (as being on the Foundation though not incorporated upon it) it appears that the Honourable were twenty, and the Reverend not more than ten, when first set on the Foundation of 50. And thus if the said Corpo∣ration are taken singly, or together with the Overseers, and this in View either to Fact or Right, it appears that more Laymen were on the Foundation than Clerks. So that according to Dr. Ayl••••••

It must be confessed that Harvard College is a LAY Corporation.

'Tis evident also from the express Design of the Institution that the said Corporation is not acclesiastical. All the Passages in the Char∣••er relating to its Design are these, "For the Advancement of all good Literature Arts and Sciences." This is plainly an Institution at large. Again "For the Education of Youth in Knowledge and Godliness." Now Godliness does not distinguish a Clerk from a Layman any more than Knowledge

does. Lastly

For the Advancement and Education of Youth in all Manner of good Literature Arts and Sciences,

This Design is as unappropriated as can be; 'Tis common and indifferent to all; and not as we are told in ELECTION Sermons that

the great and peculiar Design of our pi∣ous Ancestours in founding this College was that it might be a NURSERY for the Gospel-Ministry a∣mong us, and to supply our Churches with Pastors and Teachers

nothing of this is written by our pious Ancestors in the Charter; and 'tis directly against the very TEXT of the Charter itself; and so it must pass for Oral Tradition. And thus this College taken in all Views is not an ecclesiastical Corporation: If it had been so, the Right of Visitation (according to Ayliff Pag. 7. And Holt on Colleges) would have devolved to the CHURCH as Heir; but now we must look elsewhere for this Right. And therefore 2. It must be determined who were the Founders of this College. Now Ayliff Page 6. says

He is the Founder of a College who First erects and endowes it and not He who incorporates it.

In this Sense of Founding (as distinguished from the incorporating ACT by which alone a College is founded as a Body politick) the Dr. goes on and says,

If the King and a common Person at the same Time gives Lands &c. to a College on its Foundation [viz. o•• it•• being FIRST erected and endowed] The King is said to be the Founder by Reason of his Eminence; But if a common Person founds a College WITH Possessions of small Value, and the King afterwards endowes it with greater, yet the common Person shall be taken to be the Founder and not the King.

Hence "th••n by a Parity of Reason; In the first Case, supposing any common Persons had been as early in erecting and endowing that College as the Court was, yet the Court alone (by Reason of its Eminence) would have been the Founder; and these common Persons could by no Means be stiled Co-Founders with the Court! But in the latter Case (a fortiori) the Court is the sole Founder: For if a common Person, on being the First in erecting and endowing that College, would have held the Name of Foun∣der against the Court itself; certainly then the Court, who really were the FIRST, will hold the Name of Founder against all common Persons; let these afterwards give ever so much to it. Now that the Court were First in erecting and endowing it, appears from the Province and College Records compared Page 4. 5, of this Paper. The Court first began the FUND for erecting and endowing this College in 1636. But what all private Persons gave to is was afterwards; and in particular what Mr. Harvard gave to it was by WILL in 1638. Hence then Mr. Harvard and all other private Donours were Benefactors to this College: but the COURT alone 〈◊〉〈◊〉 Founders This brings 〈◊〉〈◊〉 directly to the P••••••ters of said Col∣lege. For 3. The Founder and his Heirs MUST be the Visitors of a College, that is a lay Corporation, if he appoints no Visitor to it himself.—Though Corporations for publick Governmennt as Cities, Towns, &c. have no Visitors, yet chief Justice Holt affirms of private Societies founded on the Score of Charity (as he says all Colleges are) that

Where there is a Corporation, as a College or Hospital, there must 〈◊〉〈◊〉 Visitors (Tit, Visitors)

A College cannot BE without a Visitor, says Ayliff. Page 74.

It is not at the Plea∣sure of the Founder whether there shall be a Visitor or not. Page 76." A Visitor says Holt, is of Necessi∣ty by Law!—This Power was not introduced by Canons or Constitutions ecclesistical; but is an Appoint∣ment i•• Law; it arises from the Property which the Founder had in the Lands given &c. and as HE is the Author of the Charity, the Law gives HIM and his HEIRS a visitatorial Power

(Tit. Visitors) Thus this Right has a necessary Existence. 'Tis originally in the Founder and Will descend to his Heirs if he appoint No Visitor himself. Herein Dr. Ayliff and a greater than the Dr, are express.

If there be no particular Visitor appointed by the Founder's Statutes, the Law appoints the Founder and his Heirs to be Visitors. Thus Ayliff Page 76. In a Word, "The LAW doth in Defect of a particular Ap∣pointment, make the Founder Visitor. If HE is silent during his own Time, the Right will descend to his HEIRS.

Thus Holt on Visitors. And after him what Need of further Evidence.

And now the only remaining Question is, "Whether the Court who founded Harvard College ever did appoint a Visitor to it? If not; Then from all these Authorities, this Right will descend to every succeeding Assembly as Heir. And that College cannot BE without the Court as Visitors" yea GREAT and GENERAL as the COURT is, yet in all Humility let it be said that

it is not at the Pleasure of that Court whether they shall be Visitors or not

—for in this Case the Court is

Visitor of Necessi∣ty by Law.

But that the Court never appointed any Visitor, appears from the Laws of 42 and 50 which are the only Laws in which 'twas ever pretended that Visitors were appointed. The Name Vi∣sitor or the Terms Visitation, Visitatorial &c. do not once occur in these Laws. Now Ayliff (Page 74. 5)

makes it so necessary for "a Visitor to be appointed and named such by the Founder in express Terms" that he even labours to prove that

by the Description of such a Power given to any Persons they are cre∣ated Visitors, whether expresly stiled such in the Founder's Statutes or not. Because otherwise, says he, the giving such a Power would be vain and the Clause useless

since none therefore are stiled or appoin∣ted Visitors by Name in these Laws, let the Powers granted in them be considered and compared with that of Visitation as described by Ayliff and chief Justice Holt. To begin then with the Law of 42 which appointed Overseers to Harvard College before it was incorporated. And here 1. Visitors are not the stated Legislative or executive Power of a College; but are appointed by the Founder to see that those, who are such, do their Duty. But by the Law of 42, before there was a Corporation, the Overseers themselves were the only stated and ordinary Power to make Laws and Orders for the College. By this then they are not described as having a Power of Visitation, nor would the Power given them to make Laws and Orders be vain and the Clause useless though they were not Visitors—Unless that College was ••o be governed without any Laws and Orders at all! 2. Visitors are Independet and Sovereign in all Cases where they are Visitors at all. Thus on Appeals they are the dernier Resort,

Who shall judge them? —Let their Sentence be right or wrong, the Party is concluded by it

says Holt on Visitors. But by the Law of 42 the Overseers in all Cases of Appeals whatever, made from a Meeting of their Number that was not General to a General Meeting of their whole Number, could conclude Nothing against an Apel∣lant! For if they did not reverse former Judgment, the Party was so far from being concluded by i••, that the Overseers themselves were to stand accountable to the General Court for it; But a standing Power over VISITORS to call them to Account for their Conduct, and that in the most ordinary Cases that could come before them, is such a Paradox as was never heard of in the World! Appeals lie from our infe∣rior Courts to the Superior; but even Inferior Courts stand not accountable to the Superior for their Acts. 'Tis therefore doubly absurd and impossible that the Overseers should be Visitors on this Law. But 3. The great Business of a Visitor, and the main End of his Power, is to see that the Charity of the Founder is not perverted says Ayliff Page 77.

To prevent all perverting the Charity there is by Law a visitatorial Power

says Holt on Visitors. But by the Law of 42 the Overseers were the very Persons who were betru••ted with the College-Stock and all Donations to it; so that 'till it can be shewn that this Law appoints them "on their perverting the Charity" to visit themselves, to set in Judgment upon themselves for so doing, 'tis to No Purpose to 〈◊〉〈◊〉 them this Law appoints them Visi•••• 〈◊〉〈◊〉 4. All Power given the Overseers in the Law of 42 (whether respecting the College-Stock or the making Statutes Orders or Constitutions for the College) was abrogated a few Years after, by the Charter of 50; as has been demonstrated (Page 16, 17. of this Paper) both from the Nature of an incorporating Act, end from the express Declaration of the General Court that

the FIRST Foundation of that College and the Govern∣ment thereof had its ORIGINAL from the Act of 50.

So then from the Year 1650 the Overseers were so far from being Visitors by the Act of 42, that on that Act they could neither be Visitors or Vi∣sited on ANY Foundation at all! But 5. supposing the Charter of 50 did not wholly supersede the Act of 42; yet the Argument Ex Abundanti, Page 19. 〈◊〉〈◊〉 seq. of this Paper, may be urged as strongly against a Power of Visitation in the Overseers, as it may against any other Power of Importance granted to them in this Act; For the Charter of 50 comes after this Act, and leaves NO Powers of Importance in it: but vests them in the General Assembly of all the Overseers and Society! —And now what a VAIN Attempt would it be in any Persons to struggle through such a SERIES of Impossibilities in order to settle a Power of Visitation on such a Law? And yet there is another Difficulty behind, that would make the Attempt (if possible) still more vain: And that is, that in common Law, "Visitors pres••p∣pose "a Corporation! The Power of Visitation exists consequent on and not prior to the Act that in∣corpora•••••• a College. Hear the following Authorities on this Point. The very Definition of a Visitor in the common Law-Dictionaries (as in Jacob's) is "an Inspector of the Government of a Corporation." But where was there a Corporation in 1642 for the Overseers to Inspect? Or where, in the Law of 42, is there a Syllable that stands in View to any Future Corporation, for the Overseers or for Any one else to in••pect? None at all. The Overseers then by that Law were not Visitors even in Habitu ••ut P••tenti•• any more than in Act. And thus the last Shift, that would betake itself to the very Ja••gon of the School••en for a Support, i•• in this Case precluded. From what Dr. Ayliff says also (Page 77.) 'Tis as plain as Words can make it, that Visitors presuppose a Corporation actually existing

Where those, says he, who are to receive the Charity of the Founder [as the Overseers did in 42] are NOT

incorporated 〈◊〉〈◊〉 but Trustees are appointed, there is then NO visitatorial Power; Because the Interest of 〈◊〉〈◊〉 Re•••••••• is not vested in them. But when they are incorporated then, to prevent all perverting the 〈◊〉〈◊〉, the Law establishes a visitatorial Power.

This was exactly the Case of Harvard Col∣lege 〈◊〉〈◊〉 the Charity of its Founder. For by the Law of 42 the Overseers were only

to dis•••••••• ••••••er and manage to the Use and Behoof of the College and its Members [and not to their ••own ••s Overseers] all Gift, Legacies &c made TO the said College.

Thus by this Act they were 〈◊〉〈◊〉 Trustees of the Charity. But how different is the Stile of the incorporating Act of 50

The ••••••••••dent and Fellows by that Name shall and may purc••••se ••••d acquire to THEMSELVES [here is 〈◊〉〈◊〉 Property] or receive upon free Gift and Donation any Lands.—And Goods and Sums of Money— 〈◊〉〈◊〉 to the Use and Behoof of said Pres•••••••••• and Fellows [as well as] Scholars of said College.

Here is Property apain; and the Interest of the Revenue, in all Senses of the Phrase is here and elsewhere by 〈◊〉〈◊〉 vested in them as a Corporation. So then before the incorporating Act of 50 there was NO visitatorial Power over Harvard College, because the Interest of the Revenue was not vested in a Corporation. The Doctor repeats this over again page 87. Adn says absolutely (without Respect to Trustees) that

where 〈◊〉〈◊〉 Persons are NOT incorporated there is NO visitatorial Power, Because the Interest of the Revenue •••• ••ot vested in them.

And all this is confirmed by Chief Justice Holt who (Tit. Visitors) asserts in such a Case where none are incorporated

There is NO visitatorial Power Because the Interest of the Revenue is not vested in them. But where they are incorporated there to prevent all perverting the Charity there is by Law a visitatorial Power.

This Power then has no BEING 'till a College is incorporated; and therefore could NOT BE in the Law of 42 which was made eight Years before the incorporating Harvard College. Adn thus so great an Authority as HOLT has decided the Case for ever against the Teaching Elders as being NO Visitors upon that Act. FINIS to the Law of 42.

Pass We n••w to the incorporating Act of 50. But this Act also describes no Power of Visitation. And particularly it does not describe the Overseers as the Visitors. All the Power given them in this Law is a Power to Councel the Corporation of act, or to Consent to their Acts: Which is a Power that cannot act at all but only councel Others to act (at whose Pleasure it still lies whether they will take such Councel—) or else at farthest 'tis a Power that cannot act without the Corporation and so can effect nothing of itself. This is so f••r from being a Description of a Power of Visitation, which is independent and SOVEREIGN, that 'tis directly the Description of a Power that is not such. 'Tis a Power also that is ordinary and relates only to the consenting to and so compleating the Laws and Orders made by the Corporation. But 'tis the Right and proper Office of a Visitor when College Laws and Orders, that have been made and compleated, are found hurtful to the Society or its Members, Then to interpose and RESCIND them BY and OF HIMSELF. Now there is not a Syllable in the Charter that gives the Overseers a Power thus to interpose and Rescind One such College Law or Order—let it be found ever so hurtful. "They then are NOT the VISITORS of Harvard College by Charter" Q. E. D.— Hence then the Overseers of that College, Honourable and Reverend as they are on OTHER Accounts, yet it must be said that they are NOT to be Honoured or Revered as VISITORS. Nor Can they have a Right to turn out Members of that Corporation! An Attempt to do such an Act, as appears from all the Premises, would be in Effect (though far from such Intention) as Attempt to null the Charter— to dissolve the Corporation—to bring on a universal Dissipation of its Treasury—and thereon Mr. HOL∣LIS' Donations is particular must on the very Conditions on which they were received, be returned back to England again! This requires the serious Consideration of ALL Persons who have any Concern for that College.—But to go on. If any a••e described as Visitors, in the Charter, 'Tis

the ge∣neral Assembly of All the OVERSEERS and SOCIETY in great and difficult Cases, and in Cases of Non-Agreement, in all which Cases the Conclusion shall be made BY the Major Part [of the Cor∣poration] the Overseers consenting thereunto.

But this also is no Description of a Power of Visi∣tation in them; for great and difficult Cases and Cases of Non-Agreement may happen to the stated Legislative and executive Power of a College, in making and executing Laws, as truly as to Visitors. This Clause then describes nothing peculiar to a Visitor, but only what is common to a Visitor and to others that are not such; and so contains no Description of a Power of Visitation at all. The plain Sense of the Clause is only this: that

the stated Legislative and executive Power of that Col∣lege, who by Charter are the Overseers and Corporation, are not to determine such important Cases

(and 'tis fitting they should not!) as they may do small and common Cases at a Meeting that is not General, but are to do it at a full and general Meeting of All their Number.

This alters not the Capacity in which they are to act in full and general Meeting on such Cases; but leaves them still, what they were before, the Legislative and executive Power only. If it had altered their Capacity, so as to make them Visitors—What Absurdities would follow! For ever WHOM would it make them Visitors? Why over the whole stated Legislative and Executive Power of the College (for so are ALL Visitors of Colleges!) And thus the WHOLE Legislative and executive Power of that College would be Visitors of the WHOLE Legislative and Executive Power of that College—Wholly Visitors and Wholly to be visited by themselves. And so their WHOLE Number to set upon and give Sentence for (or against) their WHOLE Number. Such Absurdities are too gross to need any Refutation. Let One Consequence of so absurd an Interpretation of the Charter be mentioned: The only Ground on which Ayliff (and even Holt!) argues that a Power of Visitation will exist of Necessity by Law, is, that they Charity might not be perverted by the incorporated, who have it in their Hands. Now sup∣pose (what the very End of a visitatorial Power obliges us to suppose may happen) that so great and diffi∣cult a Case Should happen, as that the Corporation should embezzle the College-Stock or pervert if from its devoted Uses;—How could this Mischief be prevented! Or how would it be possible to call the Corporation to an Account for it! When in this very Case and by this very Clause of the Char∣ter (if the Corporation with the Overseers were Visitors) the Conclusion must be made by the Corpo∣ration itself; and hereon the more they embezzled the College-Stock (and so the more they needed to be visited!) the less likely they would be to make the Conclusion that they should be visited for it—or with the Overseers to sit in Judgment upon themselves for so doing—unless it were for this fatal Purposs, viz. To vote themselves innocent, and so come off Triumphant! For what could be done in such a Case? None of these Visitors could, BY Charter, make the Conclusion (for the Overseers to consent to) but the Corporation. So that if they should be hardy enough to make such a Conclusion (and stand by it!) They could go on to make Waste of the College-Stock, and defy the whole Number of the Honourable and Reverend Overseers to do their Worst. Thus the very End for which the Law appoints a Power of Visitation would be destroyed, if this Clause in the Charter was to be taken as describing such a Power given to the Corporation and Overseers. 'Tis Time then to give up this Sense of the Clause and with it ALL Thoughts of finding a Power of Visitation described in the Char∣ter: since this, which comes nearest to the Description of such a Power, is not and cannot be a Descrip∣tion of it.

And thus it appears, after a thorough Examination, that there is NO Law in which the Founder of this College conveyed this Right of visiting the same, away to others. And then this Right (which MUST exist somewhere!) Can exist in None but the Founder and his Heirs; That is, according to chief Justice Holt, the COURT in this Case is Visitor of NECESSITY by Law! —Thus it is in all Colleges in England, when the Founder appoints no Visitor. Two Instances of this, in Ayliff, are remarka∣ble. The one is Lincoln College

The Bishop of Lincoln, says Ayliff, is Visitor of this College, only of common Right; and not by any particular Appointment of the Founder.

'Twas founded by R. Fleming Bishop of Lincoln before the Reformation; who could have no Heir by Descent, in those Times of enjoined Celibacy; Nor did he vest this Right in another.—Yet it died not with him—nor devolved to the Crown—Nor to the Church in common—Nor to the University—But because the Founder lived and died "Bishop of Lincoln" This Right descended to his Successors in that Sec. Such a necessary Existence has this Right (independent on the Appointment of the Founder) and so in∣separable is it from HEIRSHIP that, unless the Founder make the Separation by his own Act, if there be no other Heir but a spiritual Heir, it falls to him of common Right. Another Instance is Christ Church College, one of the most famous in the University of Oxford, founded by King Henry 8th after the Impeachment of Cardinal Woolsey who began it.

This College, says Ayliff, is visited only by the King and Queen in Person or by their Commission. King Henry 8th on his new Institution thereof having left or appointed No special Visitor by Any Statute; The CROWN as Heir in VISITOR; which some have deemed a Happiness.

In a like Case therefore on the NEW Institution of Har∣vard College by the Charter of 50 (after Overseers were appointed in 42)

The COURT having lose

or appointed No special Visitor by any Statute, the Legislature as Heir is VISITOR; which Some (and 'tis to be hoped that ALL the teaching Elders who are Overseers) have deemed a HAPPINESS.

— And as to the Corporation of that College, what is left for the to do but to own and recognize the Right of their FOUNDER over them! Of the Founder, that Annual Benefactor, that Visitor, whom they have often treated with an Indignity that nothing could exceed but the Goodness and Patience even to Long∣suffering with which the Court have forborn to resent it in the severest Manner. What open Disrespect, for Instance, has been shown them by that Corporation at the publick Solemnity of a Commence∣ment. The Court when sitting ('tis true) have been invited to it; But when they came to the Place, ALL their Members but the Honourable Overseers have been left at Noon-Day to wander about the Yard and Entries of that College, and been obliged to get a common Dinner where they could Find one (or re∣turn Home fasting!) While an ample Entertainment has been going on for Other Guests WITHIN. These publick Affronts offered them by that Corporation, the Writer of this Paper has seen with his own Eyes and has blushed to see what he could not help; at the same Time that he has trembled at what might follow on their thus treating the LEGISLATURE! — A Legislature who gave them their BE∣ING at first; and by whose Bounty annually continued to them, they have Subsisted ever Since!

And now "who are the VISITORS of Harvard College" may appear to all Persons who may have just and important Occasion to apply to them. Nor can the Writer of this Paper think it foreign to the Subject, or unuseful to Harvard-College (or to any Persons concerned with it) to mention the pe∣culiar Business of a Visitor, and their Method of Procedure in Colleges abroad.

A Visitor, says Ayliff, Page 95, in all his Enquiries and Determinations ought to proceed according to the meer Law and Rights of Nations, where Matters of necessary Substance and not positive Form are observed.

Thus on Complaints made to Visitors

There ought to be some Matter of Accusation in Writing gi∣ven to the Party accused, and a convenient Time assigned him for Answer, &c. and so of other Matters to which we have a common and natural Right, not to be destroyed by any local or more general Or∣dinance or Statute whatever.

Thus Ayliff on the Method of their Procedure. As to the peculiar Office of a Visitor, it primarily respects "the Revenues, the Possessions, the WHOLE Estate of a Col∣lege! The inspecting whereof is so essential a Part of this Office, that Ayliff and even chief Justice Holt often repeats it as the grand Reason why the Law appoints a Visitor at all, "It is not FITTING fays Ayliff, that Members endowed and who have Charity bestowed upon them should be Left to them∣selves." To apply this to the Corporation of Harvard College; the State of whose Treasury has-been kept in such mysterious Secrecy as if they had No Masters! As if None but themselves had any Business with their Treasury, or a Right even so much as to know what it consisted of—The Writer of this Paper has been for 10 or 12 Years a Member of that Corporation, and he cannot find by their Records that there has been a formal Visitation of their Treasury ever since the Times of the Revolu∣tion! By what he has heard, the Visitors of Colleges in England have a Register of the whole Estate of their respective Colleges; and all the Additions thereto from Time to Time, are entered into such Registers accordingly. And indeed how would it be possible for a Visitor to know whether the Chari∣ty was perverted or not (which is the primary End for which the Law appoints a Visitor) if the him∣self knew not what the Charity was, nor the particular Uses and Ends for which it was bestowed

'Tis his Right to demand, and the indispensible Duty of a Corporation to give in such an Account; if they should refuse it, they would be guilty of the most audacious Contumacy and be proceeded against as REBELS to their VISITOR accordingly.—Whether and how far the Corporation of Harvard College have exhibited in to their Visitor such Accounts of their WHOLE Estate! What Lands and Tene∣ments, and what Monies and Goods it consists of; with the Value, the Income, and the several Uses of the particulars, the Writer of this Paper knows not—He never was privy to any such Thing— Nor of late Years is it extant as he can find upon their Records.—But on ONE Account 'tis of the last Importance that the Whole Estate of that College should be known. And that is, leaft by the continual Additions made thereto, it should at Length exceed the Value of 500 l. per Annum, which is the Limit set to it by Charter, and so the Charter itself be Forfeit! [The Charter puts it on the Value and not the actual Income of 500 l. per Annum. The Rule then is "What by common Esti∣mate the Value is, and not what the Corporation think fit to rent their Estate at"—And indeed they have sometimes rented that for 5 l. which without being better'd by Improvement they have the very next Year rented at 25 or 30 l. per Annum] Now how near already they have, by acquiring purchasing or receiving upon free Gift or Donation, opproached to the Limit of 500 l. per Annum (as Money passed in 1650) is highly needful to be ascertained. The Library itself is worth 8 or 10000 l. The Lands and Tenements in Cambridge and the adjoining Towns may be valued at more than 200. l. per Annum —Besides the three Buildings called Colleges, and the President's House, which have all been ac∣quired 〈◊〉〈◊〉 received on Donation long since the Charter of 50 was granted: If to these were added the Lands on which they stand. And the In•••••••• of Charl•••• T•••••••• ••••••••Y—And one Half of the Town∣ship of Hopkintown—And Merriconeag—And the many other Lands and Tenements belonging to that College—with the Hollisian Donations of 300 l. or more per Annum —And the rich Apparatus—And all the INDIAN MONEY—And the Gifts of an honourable Family in Salem —And other numerous Donations formerly made—And that are continually making (three Gentlemen of Boston have lately by Will given more than 1000 l. and a Chappel is now given)—ALL these, or What of these can pro∣perly be valued at some Rate per Annum, may perhaps on Due Estimate be found to come very near the NE Plus Ultra fixed by Charter! And 'tis the proper Right and Office of their Visitor, by a frequent Inspection of the STATE of the COLLEGE-STOCK, to see that by the continual Additions made thereto, it does exceed that Limit—Least the Charter should be Forfeit.

Another special Part of a Visitor's Office is "to receive Appeals and redress Grievances." Viz. when the Cases are important."

A Visitor, says Ayliff, is bound in Duty and Conscience to re∣ceive an Appeal provided it be not frivolous

He has a standing Authority, says Holt on Visitors, at all Times to hear Complaints and redress Grievances—He has a POWER to hear [and therefore when he judges it needful he may hear] Any Difference and redress Any particular Injury at Any

Time.

And now to make the Application of this to Harvard College—A Place where Grie∣vances and Injuries do so much abound. Exp••lsions and even final Degradations, in many Cases, are Grievances, and great Grievances. The best Gentlemen's Sons in the Country are liable to be ex∣pelled and so to be RUINED unless they can have Redress by appealing to a Visitor. And this Re∣medy cannot be denied them! They have as much a Right to it as Visitors have to BE Visitors. — As to final Degradations; There is one peculiar Sort of it which is for no Crime at all. And that is the fixing Gentlemen's Sons (by a perpetual Degradation!) below their just Place in College Classes and then spreading it about the Country in printed Catalogues. Of this there often have been Com∣plaints, and LOUD and JUST Complaints! The Writer of this Paper (who in Times past has been concerned in placing many a College Class) was so weary of the Injuries done to particular Persons herein, that he at Length freely and publickly told the President and Fellows that

he could not in Conscience have any Thing to do with such Matters as they had been managed; it appearing to him that there was no RULE by which a Class could be placed, but what (on some View or other) was acted backward and forward upon, almost every Year—And sometimes in placing one and the same Class; And that if they insisted on his acting with them in this Affair, he must insist upon it to enter his Protest with Reasons and numerous Examples that he could produce; and would refe•• the whole Matter to the Overseers and Corporation.

On which his Brethren in the Govern∣ment of the College chose not to insist on his acting with them in this Article; and from that Time forward went on without him.—And indeed the Matter is flagrant. There is scarce a Family of Note in the Country but what have had Injustice done them on this Account. 'Tis but their look∣ing over the printed Catalogues and they may find where the Names of their abused Parents or abused Selves or abused Son•• or Relatives stand for a publick and lasting Mark of Infamy on their Families. Even the Sons of Governours! And Sons of Councellours! After the Parents have been raised to these High Stations, are found placed beneath the Sons of those who were only teaching Elders. And the•••• are Gentlement (if it were decent to mention Names) that now have the Honour of sitting in the General Court who know this to be true. Some could say, for Instance, how their Class-Mate Mr. Solomon Otis was treated on this Account. With what Face can any Person vindicate so scandalous an Act as that of placing him below so many Sons of teaching Elders, and of others, in a publick printed Catalogue to be spread over the whole Land! 'Tis surprizing that such Numbers of Gentlemen in the Country, who have suffered these Indignities, can passively bear them without seeking Redress;—Or at least not enquire "Whether the Acts of the President and Fellows are Final in this Case? If these ••entlemen will patiently bear such ignominious Treatment—The Writer of this Paper had almost 〈◊〉〈◊〉 "They WELL deserve to be thus treated." The Remedy is plain; The President and Fel∣low have not the full Power of placing such Classes. They of late Years have assumed it without

Law and against Charter.—Perhaps the Practice was first settled on some of those temporary Charters, made since the Revolution, on which a new Course of Things obtained in that College (and among o∣ther Things) DEGREES were then given without the Consent of Overseers, as well as Classes placed with∣out such Consent.) But all these temporary Charters are long since extinct! And the Charter of 50 alone remains for the Governours of said College to act upon. And therefore there must be some Ground, some Foundation, in the Charter of 50, for Such a Power; unless it be Ex Toto arbitrary and illegal, and then 'tis high Time it should be demolished. But the only Clause in the Charter of 50, that can be the Ground of this Power, is that which enables the President & Fellows "to make By-Laws and Orders, provided the said Orders be allowed by the Overseers" So that if there had been a By-Law approved by the Overseers that "The placing the Youth in their Classes, and in publick Catalogues, should be left with the Corporation (or President and Tutors—or President Professours and Tators, as Expulsions are) then their Doing this would have been Valid. But since there is no such By-Law 〈◊〉〈◊〉 ••••der, it necessarily follows from the Charter that the ORDERING the Places (or Precedency) 〈…〉〈…〉 ••••••••'s Sons in a Class and publick Catalogue must, in every Act of it, receive the Consent of 〈…〉〈…〉 ••••••••s—as truly as every Act of giving the Youth their Degrees must receive such Consent." So 〈…〉〈…〉 the LIST that contains the Order of their Names be presented to the Overseers, at some of 〈…〉〈…〉 ••etings, for their Perusal and Approbation; 'Tis certain that such Classes are not legally placed 〈…〉〈…〉—But still; Whoever has this Power, yet if at any Time or by any Means there should be a 〈…〉〈…〉 Abuse of it in some particular Instances (—as in the Case of Mr. Otis —) such Errata are 〈…〉〈…〉 to the Correction of the Visitor; To whom in common Law, there li•••• an Appeal which No 〈…〉〈…〉 NO By-Laws of College can prevent. For "He has a Power to redress any particular 〈…〉〈…〉 (says Holt) at any Time."—And is bound in Duty and Conscience, says Ayliff, to receive an 〈…〉〈…〉 ••••••id••d it be not frivolous.

〈…〉〈…〉 Writer of this Paper has gone through what he proposed; and presumes he has shown 〈…〉〈…〉 to the Corporation and the Overseers of Harvard College as they stand in View to 〈…〉〈…〉 Powers over that College still remain the GENERAL COURT. He has done th•• 〈…〉〈…〉 ought the most proper to Convince. Viz. by giving All the Laws that re∣late to 〈…〉〈…〉 ••hat are of Importance to it, and then the Reader having these Laws by him, may turn 〈…〉〈…〉 judge for himself whether the Reasonings of the Writer upon them are just and conclusive. The Writer is not sensible that he has concealed the Force of any Arguments that may be advanced in Opposition to what he has laid down. He has done his BEST to produce them all; and had given them their due Weight, and perhaps sometimes too particular a Consideration. What

Errours there may be in his Reasonings, or what Inaccuracies of Stile, or Improprieties of Phrase and Expression in his Writing, he leaves to the Judgment and Candour of his Readers. But if he has been guilty of any Artful Evasions—any fallacious Sophistical Arguings on a Subject of such Importances; let these be treated without Mercy.—As to any indecent Reflections in this Piece, which might be occasi∣oned by the Unexampled Treatment he has lately met with, he would only say, that 'He has not the Inhumanity to wish the most malicious of his UNREASONABLE Enemies to change Circumstances with him, and then be put upon the Trial to write a Piece on this Subject with 〈◊〉〈◊〉 Reflections in it. But with These and all O••her Defects in the Piece itself, it may still be of publick Service to Harvard Col∣lege, whose Treasury! Whose Constitution! Whose very BEING! it so nearly concerns. He therefore offers it to the serious Perusal of ALL the true Friends to that Society; and subscribes himself

Nathan Prince.

Notes

• * 1.1

  This Committee of the Court must have appointed Mr. Eaton to be the Master of this publick School. For on this Year, when the said College or School was under the ordering of this Committee, he was appointed Master or Professor of it; 〈◊〉〈◊〉 appears from College Records No. B. Now No Record says 〈…〉〈…〉 he was appointed; but since 〈◊〉〈◊〉 Overseers, or any other standing Power over this College, w•••••• 〈…〉〈…〉 by the Court, there could be none but the Court or Committees from them, that 〈…〉〈…〉 In a College which appears to be from the Beginning, and now was, the College of 〈…〉〈…〉 CHRIST; For that Court 〈◊〉〈◊〉 it and named it and ordered where it should be built and 〈…〉〈…〉 ••••••••ing it should be•• and appointed the abovesaid Committee on this Year to take Order 〈…〉〈…〉 College, and th•• Committee ••eem to be of some Continence, for the Governour, Deputy G•••••• 〈◊〉〈◊〉 or the 〈…〉〈…〉 were always to be one of them. Tis true that the next Year after Mr. Fa•••• 〈…〉〈…〉 and 〈◊〉〈◊〉 of the Colony invite Mr. Dunsler to be 〈…〉〈…〉 C•••••• R•••••• No. D. But it does not appear from any 〈…〉〈…〉 Power." They could not give it to themselves 〈…〉〈…〉 to be the College of the General Court! Nor had these Ma∣gistrates and Elders an original or proper Right to that College-Stock which (as in No. D.) they put into Mr. Dunster's Hanus, together with the Care of carrying on the College Buildings; for it appears (No. C. compared with the Court Records, Mark ‡) that the Year before, the general Court put that Stock, and the Care of carrying on the College Buildings, into the Hands of Mr. Shepherd; and 'tis plain by what Mr. Dunster says in his Resignation (hereafter inserted) that the General Court looked on these Magistrates and Elders, to have No Authority to do these Things, or to invite him to be President! And so they did those Things only on Sufferance or Permission of the Court. From all therefore 'tis certain that, till Overseers were appointed in 1642, the College was under the immediate Govern∣ment of the General Court and those Committees whom the Court appointed to take Order about it. and how far the Act of 42 gave the Overseers a Power over the President and Fellows of said College (after they were made a Corporation; may plainly appear by what shall be said hereafter.
• ‖ 1.2

  And No. C. From these two Records compared, it appears that what the Court did in discharging Mr. Eaton from keeping School &c. Had a primary and direct Reference to his keeping the School of the College abovesaid. And that the Court alone (and not the said Magistrates and Elders) dismissed Mr. Eaton from his Presidency in the College—And thus the next President Mr. Dunster who resigned his Place in the Year 1654, resigned it first to the Court alone; Now this was after the Overseers and Corporation of said College were appointed by the Acts of 42 and 50; and yet the said Magistrates and Elders of the 6 neighbouring Towns (tho' THEN Overseers;) had nothing to do with Mr. Dunster's Resignation till the general Court gave them Power finally to receive it. (And as to the Corporation of said College, They never had any Thing to do with it at all; So certain is it that the General Court, who constituted the said Overseers and Corporation, never looked on those Acts, which constituted them ta••e such, as ••••••vering these Overseers and Corporation, to dismiss a Minister of that Corporation. And if they had No such Right Then. 'tis certain they have never had it in themselves S••••••, and so have no Power to do it Now.
• ‡ 1.3

  It here seems that Mr. Eaton was not to be called to Account the next Week for his Fine to the Coun∣try, so ••hat was respited to the next Court, and not to be paid at all if he removed in the mean while. Nor was it for the Satisfaction-Money which he was to pay Mr. Brisco, for that was to be paid pre∣sently. It therefore was for the 〈◊〉〈◊〉 St•••• that the Court here ordered he should be called to Ac∣count. For that Stock (as appears, Coll. Rece. No. B.) was put into his Hands. So that the Court alone had the proper Rights in these early Fines, to dispose of that Stock.
• † 1.4

  Called Harvard-College, viz. by the General Court. For the Court by Law gave it that Name, or∣dering that it should be called Harvard-College; as appears from the Court Records Anno 1638, 9. Dr. Aylisse in his Account of the University of Oxford (Vol. 2. P. 3.) when he comes to define a College, has these Words,

  A College is a Legal Body or Corporation. The Persons who are incor∣porated hereinto are a Body formed to last and endure in perpetual Succession of Time, and thus every College must have its legal Commencement or Beginning.

  Now according to this Definition, or Account of such a Society, Harvard-College was a College improperly so called, 'till the Act or Charter of 1650 which made it a Legal Body or Corporation, and which incorporated the President and Fellows as a Body to last and endure in perpetual Succession of Time. So that from the Date of that Charter the said College MUST have its Legal Commencement or Beginning. And accordingly the General Court declare, on common Law, in the last and most exact Regulation they made of said College in Dec. 1707,

  That the FIRST Foundation and Establishment of that College and of the Government thereof had its ORIGINAL from an Act of the Court made in the Year 1650 which had not been repealed or nulled.

  So that the above cited Act of 42 is beyond the FIRST Foundation of the present College and of the GOVERNMENT thereof; and therefore the present incorporated College, or Harvard College as a College properly so called, seems to have nothing to do with this Act of 42 or with any POWERS contained in it, but only with the incorporating Act of 1650 as its FIRST Foundation. This Act now follows.
• † 2.1

  This FULLY confirms the Remark made at the beginning of this Collection of Laws, P. 4, 5. viz. That be∣fore the Year 42 the said College was the College of the GENERAL COURT alone. And that the Court before the Act of 42, looked on none but Themselves, and those whom they appointed to Office IN it, to have ANY Authority over this College.
• * 2.2

  Viz. in Aug. 1640.
• ‡ 2.3

  There are no such Laws now on Record as were in Part imposed ont he College. 'Tis true, that the Charter of 5•• Imposed on the College some Part of the Old College Laws, which were very difficult to be strictly conformed to in Practice, e. g. The Overseer, ••••••••nt is requi•••••• by Charter to the Execution of every By-Law, i. e. to punish any Undergraduate 〈◊〉〈◊〉 for Absence from Prayers; or for going out of Town without Leave! Such Things as these Mr. 〈◊〉〈◊〉 seems here to refer to. And to judge that the Charter half nulled and ••••••s; confirmed the old College Laws, ••••••••eding the ••••d Charter, in many Ca••••••.
• * 2.4

  This for the Province Co••••ter. — And thus t•••• Charter 〈…〉〈…〉 the College in the T•••••• of Can∣•••• the ••••re 〈…〉〈…〉 of C••••••bri•••• used to be or continue ••ill a Town; 〈◊〉〈◊〉 it 〈…〉〈…〉 Tow•••• 〈◊〉〈◊〉 they were ••e∣••••, in ••••d Charter Tim 〈…〉〈…〉 Re••••lation made of t•••• s••d C••••eg••, b•• an Order of the G••••er•• Court 〈…〉〈…〉, at which Time th•• Court 〈◊〉〈◊〉 the C•••••••• 〈◊〉〈◊〉 to 〈…〉〈…〉 E••••••••tion on the C••••••ter of 1650, after the said College had been on 〈◊〉〈◊〉 Charters ever since the Times of the Revelation.
• † 2.5

  For the Truth of this FACT let the said Charter of 50, be consulted from Beginning to End! all the Powers of the Overseers which are either granted or mentioned, or even referred to, in that Charter are contained in the 3d, 6th and 8th small Paragraphs of said Charter, at it is printed in the preceeding Collection of Colony Laws relating to Harvard College. And so the Decision of the Fact here refer∣red to, and whether the Writer of this Pamphlet speaks Truth or Falsifies in such an Assertion, may be SHORT.
• † 2.6

  This Sense of the Term "Society" seems not to be here intended; for if ••ere, Then all the Members of the College must Vote with the President and Fellows, and the Conclusion be made by the major Part.—If so "The UNDERGADUATES would most certainly; carry it!
• ‡ 2.7

  PROCURED! and therefore not meerly notified or warned to meet, as some have pretended to argue, against the express Words here referred to in the Charter. Such a loose LICENSE indulged, in inter∣preting Laws, wou'd destroy any Law in the World!—But when this Charter mentions "The Pro∣curing a general Meeting of all the Overseers and Society in great and difficult Cases" is it not self evi∣dent that it actually ••••ans that such a Meeting should BE Procured in those Cases? Most certainly;—And therefore the Charter is not ACTED upon if in those Cases such a Meeting is not Procured! e. g. Feb. 18. 1741, 2.
• † 2.8

  Supposing the Law of 57 to be now null (as it can be proved to be) Yet this no Way af∣fects the Force of this Argument; for that Law was once valid, and when it was so, it showed the Sense of the Legislature to be the same on this Point, now under Consideration, as it was when the Legislature granted the said Charter of 50. And this is the whole that the present Argument is concerned with.
• ‡ 2.9

  By express Charter the major Part of the Corporation can Lease, though the rest are absent. Sup∣pose then but Four should be present to lease a Farm of 100 l. per Annum, and one of these should be a meer De Facto Member; the Consequence of this is that This would be no Lease at all. For there would be only three ••••••al Members to concur to such an Act. And Three Members make no Quorum of the Corporation. And in this Case though the Corporation might with Difficully re∣cover such a Farm into their own Hands again; yet they would lose the whole Rent! For the Lease on which it was DUE wou'd be only a Piece of Waste Paper.
• * 2.10

  The Writer of this Paper is resolv'd to SPEAK as Keenly of THEM as they have ••••alous•••• acted against HIM. He owes them NO Obedience Independent on the Corporation. Nor ever will PAY them any, while They act in their SOLITARY Capacity.