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description of English Fellows. The gift was, not to support teachers, but to educate persons. It is impossible to believe, that the Fellows of the Corporation were to be educated.
But that after the charter there were Fellows not receiving salaries, as well as Fellows, who did receive them, is apparent from an order of the Overseers, anno 1666. "It is ordered by the Overseers, that such as are Fellows of the College and have salaries paid them out of the treasury, shall have their constant residence in the College, and shall lodge therein, and be present with the scholars at all times in the hall, and have their studies in the College ; so that they may be better enabled to inspect the manners of the scholars, and prevent all unnecessary damage to the society.”
After the charter of 1672, there is no question, that there were non-resident Fellows, as well as resident Fellows.
The passage cited from Randolph's Narrative, addressed to the Privy Council, 12th October, 1676, contains this clause : -" The allowance of the President is £100 a year, and a good house. There are but four fellowships; the two Seniors have each £30 per annum ; the two Juniors £15; but no diet allowed. These are tutors to all such as are admitted students." *
Now, if Randolph is accurate at all, it is clear, that all the Fellows of the Corporation were not residents at that time ; for the Corporation consisted of five Fellows. In point of fact we know, that three of the then existing Corporation, to wit, Mr. Shepard, Mr. Mather, and Mr. Oakes, were not tutors, and two of them were non-residents.
This leads me to another consideration.
VI. The point of usage. – I agree to the doctrine stated by Lord Mansfield, that, where the words of a charter are doubtful, the usage is of great force. “Not," (as he says, “that usage can overturn the clear words of a charter; but, if they are doubtful, the usage under the charter will tend to explain the meaning of them." +
But what was the case, to which his remarks applied ? It was one respecting the borough of Portsmouth, a corporation by presumption, and also by a charter of Charles I. The corporation consisted of a Mayor, twelve Aldermen, and an indefinite number of Burgesses. The charter declared, that the election of Mayor should be thus: that the Mayor, Aldermen, and Burgesses, or the greater part of them, should assemble, and should there continue, till they, or the greater part of them then there assembled, should elect a Mayor. The sole question was, whether the charter meant, that a major part of the whole corporate body, or only a major part of those assembled, were to choose the Mayor. The usage had been for the latter to choose, and that usage was for one hundred and seventy years. The Court thought the usage decisive ; but they thought it also a right construction of the charter.
+ 1 Cowper, R. 250.
* Letter 70. Hutch. Collect. of Papers, 477, 502.
But it is material to consider the effect of usage in cases of this nature. A long uninterrupted usage in the affirmative establishes nothing but its being rightful. For instance, is, in the present case, there had been a long usage to elect the tutors into the Corporation, that would certainly prove that tutors were not ineligible. But if, from the first institution of the College to this time, none but tutors had been chosen Fellows, it would not prove, that no other persons were eligible. Why? Because the charter has not in terms confined the choice to tutors; and therefore all, that can be affirmed, is, that there is no pretence to exclude them, as a matter of right or duty. On the other hand, if a tutor had never been elected a Fellow to this day, it could afford no proof, that the charter excluded them; for it contains no disqualification of tutors; and the exclusion might be merely from policy. Suppose every president of the College had been, to our day, a minister of the Gospel ; there would be no pretence to say, that by the charter all other persons were ineligible. Why? For the plain reason, that such an appointment is not required by the charter; and the usage could affirm no more than that it was not inconsistent with the charter.
Now, take the case in the most favorable view, which the Memorial states, that for the space of twenty-two years (namely, from 1650 to 1672), the Fellows were residents and instructers. A usage for twenty-two years is very short to establish any construction of words of a doubtful nature in a charter. But upon the words of the charter the construction could not be doubtful ; for, I repeat it, tutors, on our construction, are clearly eligible. The usage, then, establishes only its own correctness.
But the Memorial contends, that the charter excludes all persons, if not from election, at least from acting as Fellows after election, unless they are or become residents and instructers. Now, what are the admitted facts on this point? That the usage has been, without
interruption, from 1672 to the present time, a period of one hundred and fifty-two years, to have non-resident Fellows, and for a great length of time a majority of the Fellows have been non-residents, and not instructers. Now, this usage, if usage is of any avail, is a flat negative to the exclusion or qualification. It directly contradicts it. If the words of the charter were doubtful on this point, it would settle it. An early usage for twenty-two years cannot be permitted to prevail against a subsequent usage of one hundred and fifty-two years. If the former asserts an exclusive right in residents; the latter denies it, and proves it founded in mistake, and becomes itself conclusive the other way.
But it may be said, that the very point was contested in 1722. I admit it, and do not mean to enter into any consideration of the respectability, talents, or virtues of the different parties. It is clear, that there was a difference of opinion among men of high standing. Upon full argument, and after much excitement, the point was settled against the exclusive right of the resident instructers; and for a century past the Corporation has remained organized with non-residents in the Board. The usage of a century, after such a controversy so ended, must be decisive, if any can be. If it be not, then surely a short usage, not negativing any other right for twenty-two years, can be of no weight.
VII. Then, let us consider, in the next place, the confirmation of the charter by the State constitution of 1780. It must be deemed to act upon the known and settled state of things then existing, as to the Corporation. Four of the Fellows were then non-residents. The Constitution declares, that “ The President and Fellows of Harvard College in their corporate capacity, and their successors in that capacity, &c., shall have, &c., all the powers, &c., which they now have, or are entitled to have, &c., and the same are hereby ratified and confirmed unto them, the said President and Fellows of Harvard College, and to their successors, &c., for ever."
Now, for myself, I should be willing to rest the whole case upon this single solemn act of ratification. It is the highest sovereign sanction of the charter, and of the Corporation de facto, as being then rightfully organized.
VIII. An argument, now greatly relied on in behalf of the Memorialists, is, that as the College is by the charter required to be at Cambridye, the Corporation must be local, and the Corporators or Fellows must therefore be local residents.
This argument has no foundation in law. In general, Corporations may be said to have no locality; though the Corporators may be local, and entitled to be such only by locality; as, for instance, the inhabitants of a town or parish are Corporators only during their residence. But the Corporation itself is not local. It exists only in intendment of law. It is a mere legal entity, and can have no habitation, though it has a name. It is itself but a shadow, though it necessarily acts, and is brought into operation by living beings. A Corporation may be required to do its business at a particular place, and there only; but this is a limitation of its objects, and it does not give the Corporation locality. This is frequently the case with regard to banks, insurance companies, bridge and turnpike corporations, academies, manufactories, &c. In Sutton's Hospital, 10 Co. 32 b., the Court say, “A Corporation aggregate of many is invisible, immortal, and rests only in intendment of law.” So, in Inhabitants of Lincoln County v. Prince, 2 Mass. R. 544, Chief Justice Parsons said, “A Corporation aggregate has in law no place of commorancy, although the Corporators may have." There is the same point in Taunton and South Boston Turnpike Corporation v. Whiting, 9 Mass. R. 321. And, in general, when Corporations are created for local objects, the Corporators are not to be deemed such, so long only as they reside in the place, unless the charter expressly makes such a qualification. The proprietors of a bank, insurance company, bridge, turnpike, or manufactory, may reside any where, unless expressly prohibited by the charter. The law never imputes locality to Corporators, simply because the objects of the Corporation are local.
Upon the whole, after examining all the grounds of legal right assumed by the Memorialists, it appears to me, that their case is wholly unsupported by any legal principles. And I advise that the Overseers reject the Memorial accordingly.*
* [The foregoing is not the Argument actually delivered by Judge Story before the Board of Overseers, but merely the minutes, from which he spoke. It is, therefore, a mere sketch of the outlines of his Speech.]
DELIVERED BEFORE THE MEMBERS OF THE SUFFOLK BAR, AT THEIR AN
NIVERSARY, ON THE 4th SEPTEMBER, 1821, AT BOSTON.
(First published in the American Jurist, January, 1829.)
In comparing the present state of jurisprudence with that of former times, we have much reason for congratulation. In governments purely despotic, the laws rarely undergo any considerable changes through a long series of ages. The fundamental institutions, (for such there must be in all civilized societies, whether modelled at first by accident or by design, by caprice or by wisdom, assume a settled course, which is broken in upon only by the positive edicts of the sovereign, suited to some temporary exigency. These • edicts rarely touch any general regulation of the state, and still more rarely attempt any general melioration of the laws. For the most part they affect only to express the arbitrary will of the monarch, stimulated by some pressing private interest, or gratifying some temporary passion, or some fleeting state policy. There is in such governments, what may be called a desolating calm, a universal indisposition to changes, and a fearfulness of reform on all sides; on the part of the people, lest it should generate some new oppression; and on the part of the ruler, lest it should introduce some jealousy or check of bis arbitrary power. In such countries the Law can scarcely be said to have existence as a science. It slumbers on in a heavy and drowsy sleep, diseased and palsied. It breathes only at the beck of the sovereign. It assumes no general rules, by which rights or actions are to be governed. Causes are decided summarily, and more with reference to the condition and character of the parties, than with reference to principles; and judges are ministers of state to execute the policy of the cabinet, rather than jurists to interpret rational doctrines.