the memorialists. Some of them were the instructers of my youth, while I was a student at the University, and for them I feel much of filial reverence; others of them I have the pleasure of being well acquainted with by their literary and scientific acquirements; and others of them I feel myself at liberty to name among the friends, whom I most honor. Under such circumstances, I should be glad, if I could, to escape from the embarrassment and responsibility of a public discussion, in which my judgment requires me to dissent from claims, which, whatever may be my personal respect for the memorialists, I am convinced are utterly unfounded in law. Considerations of this nature have pressed upon my feelings; but I have yielded them up to a sense of duty. This Board has a right to demand from the members of it, who have been bred to the profession of the law, a clear view of their own opinions upon the question, as a matter of law; and the suggestion of my friends have led me to believe, that, upon such an occasion, silence on my part would not be deemed excusable. But there is another matter of regret, which I am bound to acknowledge, and which, I trust, will be accepted as an apology for any imperfections and infirmities in my argument. The question is one quite remote from the ordinary occupations and studies of lawyers in this country. It has not, as far as I know, been stirred here for a century; and, unfortunately, little or nothing of the grounds of the opinions and reasonings of that distant period can be now gathered up to aid or enlighten the present inquiry. It would have been desirable, on my own part, to have consulted, at large, the charters, foundations, and statutes of the colleges in the English Universities; and to have fortified myself by an intimate study of all the peculiarities, as well of their language and legal construction, as of the usages under them, so that I might have been better prepared to meet any objections. But the best works on such subjects are not generally within my reach, or within that of my friends. I am obliged, therefore, to rely upon books and authorities, which, though perfectly satisfactory upon the leading principles, are less full and exact in details than I could have wished. I have, in some instances, been obliged to gather up fragments of facts, and put them together, in order to illustrate College. "Speech delivered before the Overseers of Harvard College, February 3, 1825, in behalf of the Resident Instructers of the College; with an Introduction. By Andrews Norton." "Report of a Committee of the Overseers of Harvard College, on the Memorial of the Resident Instructers." EDITOR AM. JURIST. positions, which appear to me, in a legal view, absolutely irresistible. Few controversies of a nature like the present have ever come before the English courts of justice; and where they have been settled by the visiters of a college, or their assessors, upon legal principles, they are either locked up in works not generally accessible, or left merely upon the manuscript records of the colleges, to which we have no access. Notwithstanding these disadvantages, I have an entire confidence, that the conclusions, to which I have arrived, are perfectly well founded in point of law. They rest upon principles, which, as a lawyer, I think either do not admit of serious controversy, or, if controverted, can be satisfactorily maintained. And I trust, in many instances, I shall be able to establish by suitable illustrations, that they are justified by the highest authority. I will now, after these prefatory remarks, beg the indulgence of the Board, while I invite their attention, and particularly that of my legal friends, who are members of it, to my argument. Some of its details may be dry and uninteresting; some of them may be thought superfluous; and some of them, such as lawyers, at the first presentation of them, would not deem necessary to be farther expounded. My excuse must be sought in the great deference I feel for the memorialists themselves. I am unwilling to have it thought, for a moment, that any thing, which they deem in any degree important, as bearing upon their case, should not be met and answered with directness and in a spirit of candor, whatever may be the value, which others may attribute to it. I shall have occasion, in the course of the discussion, to allude to a pamphlet containing a vindication of the doctrines of the Memorial, which has been attributed to one of the learned professors, and which I shall the more freely allude to, because it purports to invite public discussion, and its authorship is not attempted to be concealed. In so doing, I trust I shall not be suspected of feeling towards the learned author any thing but respect and friendship. The object of the Memorial is to show, that the Corporation of Harvard College, as at present organized, is not conformable to the charter of 1650. The proposition maintained is, that, by "Fellows," in the charter, is meant a particular description of persons, known in English colleges, and, at the time of the charter, existing in Harvard College, and having known rights and duties. The Memorial then asserts, and endeavours to prove, that " Fellow" imports a person resident at the college, and actually engaged there in carrying on the duties of instruction or government, and receiving a stipend from its revenues."* In the view of the Memorial, each of these facts, residence, instruction or government, and receiving a stipend, constitutes a necessary part of the definition of a "Fellow." And it is contended by the memorialists, that this is the meaning attached to the word in the charters of the English colleges; that it was so actually applied in Harvard College before 1650; and that, consequently, it is the true and only sense of the term in the charter of 1650. The Memorial seems to maintain, that no persons, but such as have the necessary qualifications at the time of the choice, are eligible as Fellows. But if it does not go to this extent, it maintains, that, after the choice, the party must be a resident, an instructer or governor, and a stipendiary. My first object will be to ascertain, whether the above definition of "Fellow" be true and correct, as applied to English colleges; for on this definition the whole argument rests. I shall contend, and endeavour to show: 1. That the term, "Fellow," when used in the charters of English colleges, has no peculiar meaning, distinct from its ordinary meaning of associate or socius: 2. That the qualifications of Fellows are not the same in all the colleges; but vary according to the requisitions of the charters, and the successive statutes of the particular foundations: 3. That, as an enumeration of the particular qualifications of Fellows in the colleges generally, the above definition is incomplete: 4. That the objects of these Fellowships are very various; and generally, if not universally, of a nature wholly distinct from any, which the Memorial itself supposes to be the principal object of the charter. I. The meaning of the word, " FELLOW." - This word is by no means confined to college charters. It occurs in charters of a very different description. Thus the Royal Society is incorporated by the name of the "President and Fellows." So the College of Physicians. So the American Academy of Arts and Sciences. So the Medical Society of Massachusetts. In these and like cases, no person supposes, that the word imports any thing more than member or associate. Johnson, among his definitions of "Fellow," enumerates as one," a member of a college, that shares its revenues, or of any incorporated society." We also speak of the Chief Justice of a court and his Fellows; of the Foreman of the Grand Jury and his Fellows. The oath of the Grand Jury declares, "The United States' counsel, your Fellows', and your own, you shall keep secret." In all these cases, the word companion, associate, or confrere, might be substituted indifferently for Fellow. If there be any peculiar force in the term, it is, that it imports equality in general rights. Why, then, should it be supposed to be used in any other sense in a college charter? It cannot be from the nature of the objects to be attained, for these might be attained by persons under any other denomination; nor from any peculiar structure of college institutions, for these exist under very various charters at home and abroad. The corporate name of Dartmouth College is, "The Trustees of Dartmouth College." The ends can be obtained as well without Fellows, as with; as well by incorporating a distinct body, as by incorporating the college instructers. Many of the trustees of Dartmouth College, in the original charter, were non-residents, and so described in the charter. Many, who have been since elected, were non-residents, and continued such. The sole ground of the memorialists must be, that the word has a fixed meaning as to English colleges; and is, as it were, so appropriated by art, as necessarily to import in a college charter something more than associate. If so, then the word would naturally be used in all English college charters; and "Fellows" could not exist, where the charter did not create them eo nomine. But how is the fact? Let us take a few of the colleges at Oxford. Brazen Nose College; founded in 1509. Name" Principal and Scholars of King's Hall and Brazen Nose College in Oxford."* Yet there are in this college twenty fellows, thirty-two scholarships, and fifteen exhibitions, on the foundation. Trinity College; founded in 1554, by name of the "Master, Fellows, and Scholars of the College," &c. &c.† There are on the foundation, a president, twelve fellows, twelve scholars, and four exhibitions. St. John's College; founded in 1557. The charter is for a president, and fifty fellows OR scholars.‡ Christ Church College; founded by Cardinal Wolsey and Henry VIII., 1532: a collegiate church. Name" Dean and Chapter of * Oxford Guide, ed. 1822, p. 67. + Oxf. Guide, 119. 2 Bro. Par. Cas. 221. 1 Ayliffe, Hist. Oxf. 40. 1 Ayl. 418, 419. the Cathedral Church, &c. in Oxford," &c.* On the foundation are the dean, eight canons, eight chaplains, one organist, eight clerks, one hundred and one students, and a schoolmaster, and usher. This is a very material case. No Fellows are named. What says the Oxford Guide? In college phrase, "A student is one of the one hundred and one members of that name at Christ Church, whose rank is similar to that of Fellow' of other colleges." "The number of members on the books is about seven hundred, amongst whom are three hundred and forty-five members of convocation." This college is governed solely by the laws of the Dean and Chapter of the Cathedral Church. ‡ Corpus Christi College; founded 1516. Name" Collegium Corpus Christi Oxonii." It originally had on its foundation a president, twenty scholars, and two chaplains: it now has a president, twelve fellows, twenty scholars, four exhibitions, two chaplains.§ Merton College; founded 1274. Its name originally, "Custos et Scholares Domus de Merton;" || and also, "Guardiani et Scholarium Domus, sive Collegii Scholarium de Merton in Universitate Oxonii." The old colleges sometimes used more than one name. This college has now a warden, twenty-four fellows, fourteen postmasters (postrinista), four scholars, two chaplains, two clerks. Peter House College, founded Cambridge; 1284. Name-"The scholars of the Bishop of Ely." "The number of persons on the foundation, being the number mentioned in the statutes, consisted of a master and fourteen fellows, sometimes called perpetual scholars, eight poor scholars, and two bibliotists. There had been other fellowships and scholarships annexed at different times and by different benefactors; but these had never been considered as conferring on those, who held them, any privileges as members of the society."** The statutes given by Simon de Montacute, Bishop of Ely, 1344, are addressed "Magistro et Scholaribus domus nostræ Sancti Petri. Cantab."; and he directs that these fourteen "Scholares essent perpetui et studiosi," &c.†† The statutes constantly designate what are now called "Fellows" as scholares. ‡‡ From these citations it is apparent, that there is nothing technical in the word "Fellow," as applied to colleges; that it is sometimes not found in the words of the charters, and yet exists in the foun |