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that unnecessary display is on the decline. Patience must be exercised while any such modifications, if necessary, come naturally; otherwise they would, like Cadmean teeth, soon be springing up again, in new and perhaps more objectionable forms. It should not be forgotten that if the Senior societies have hitherto erred from too much ceremony, going to the other extreme would cause them to be in danger of degenerating into mere clubs. Let those who will, strive to prove that even the best of student clubs, such as those at Harvard, compare in influence, in dignity, in usefulness, in interest of members, with the Yale Senior societies. Appearances are all against the former. A thousand temptations and dangers beset the elaborate student club, from which the society is free. The one system seems to us wholly in accord with good government, good feeling, and good work at college, and the other almost as directly opposed to all three. In the club the student is apt to waste his time and money, and is of course absolutely his own master. In the best societies he is so identified with other men that for their own reputation they cannot afford to let him go the “primrose way” without serious and friendly remonstrance. A choice between the one or the other systems would appear to be the only alternatives now open to the largest colleges.
“Suping,” currying favor with society men, allowing society men to “ run in ” their candidates for office simply because they are society men, are of course highly contemptible proceedings. They will be tolerated a single day only in so far as the tone of the institution grows lax or unmanly. The societies
influence but they cannot make the spirit of the University. Speaking for one of the Senior societies, we may say candidly that even a vague suspicion of cringing on the part of a candidate would be borne with far less patience than laxity in almost any other particular.
From time to time, unhappily, doubts of a graver character prevail in some quarters. Men who do not belong to either Senior society, who are not hostilely inclined toward them on general grounds, fear that society influence pervades the faculty and corporation, influencing the bestowal of prizes, appointment to tutorships, etc. If such cases can be authenticated they are danger signals of the downfall of the one society, or
both, which would seek to perpetuate or tolerate such gross injustice. The college has seen dark days, but the blot of injustice has never so far fouled its escutcheon. The body of the alumni will be slow to believe such a charge; woe to the reputations of the offenders if it is proved against them. The standard of their society will be trailed in the dust. The name “neutral” is no badge of disgrace; it stands for the great body of the alumni. Because they can be less easily organized than society men, because they are as a rule less acquainted with one another, is no reason why they should be deprived of one jot or tittle of their rights either in the classroom or in the management of the University. It is not too much to demand that the faculty and the corporation fulfill the letter and the spirit of Jefferson's plea for “equal and exact justice to all men”-of whatever society or non-society persuasion. In the natural order of events society questions will never intrude themselves into the meetings of these bodies, directly or indirectly. The truest society men should not hesitate to coöperate with neutrals toward the attainment of this end in the future. If extra painstaking will dispel any unpleasant impressions which exist on this score at present the effort is worth the cost. Properly conducted, we believe that, for the reasons we have given, the society system is of positive benefit both to its members and to the college. We cannot but look forward to the next epoch with especial interest. Whether the system can retain all of its usefulness now that the bottom has been knocked out of it, so to speak, by the abolition of the Freshman and Sophomore societies; whether there may not be and ought not to be more Junior societies, so as to cut down the membership of the present ones, now that the classes are so large; whether the new Senior society, begun so auspiciously, is not in itself the best antidote for quieting all the discontent against the old societies—are problems which time alone can solve. Expansion and improvement rather than abolition seem to be the real order of the day. The sincere hope of every loyal son of Yale, whether a society man or not, will be that the dawning era shall prove one of good feeling not less remarkable in its narrow sphere, than that publicly associated with the name of James Monroe. VOL. VIL.
ARTICLE VII.—THE CHARTER OF CONNECTICUT AND
THE CHARTER OF YALE COLLEGE.
In our Article, published in the New Englander in May, 1882, respecting The Charter of Yale College, the import and reach of its changes we did not think it necessary to consider, and do not now think it necessary very fully to discuss, whether the colony under its charter had the right in 1701 to pass the act, entitled “An act for Liberty to erect a Collegiate School,” or the right in 1745 to pass the act entitled “An act for the more full and complete establishment of Yale College in New Haven, and for enlarging the powers and privileges thereof." But it may be proper to say something on the subject to complete our view.
If the legislature of the colony had the right under its charter in 1745 to found or establish a college and to incorporate it, it obviously had the same right under the same charter in 1701. If it had not this right at either period, it appears to follow, that the college bad no valid charter prior to the American Revolution and perhaps still later.
We are not ready to accept this conclusion nor do we think that the jurists of the State of Connecticut or of the country are likely to accept it. The charter of the college has been held to be valid from the beginning, whatever fears may bave been felt at first of interference or question, if the rights of the colonists were too ambitiously put forward. It has been recog. nized by repeated acts of legislation, both before and since our revolution, until at last, when in 1818, the charter of Charles II. was superseded by a State Constitution, it was confirmed and perpetuated by that instrument. The officers of the crown never interfered with the charter of the college by proceedings against it. This is presumptive evidence, that they saw no sufficient reason for interference. We shall not argue the case for the crown in their behalf. We bave received no retainer for that purpose and at this late period can hardly expect any, and we certainly shall not volunteer. Rector Clap, who some years later showed his knowledge of the law, by his noted and able argument on the right of visitation and who drew the proposed act of 1745, “the skilled lawyer,” as he is called, Governor Fitch, who revised the draught, the trustees who presented it, and the legislature who enacted it, could not have believed that the act would be invalid, nor could the trustees, who afterwards acted upon it, have been of that opinion.
But if “the colony, in strict law," (the epithet on what is in the nature of a constitutional question is of no consequence), " had no power to create a corporation,"* it will be difficult, we ought perhaps rather to say impossible to support its validity. The object of that act was to continue and modify a corporation, or as is alleged to create one and to bestow additional powers upon such corporation, that is, to do what it is supposed the colony had no power to do. If the college were not a corporation, it could not as such take and hold lands and a nonexisting corporation could not acquire title to lands by possession. A similar argument respecting the power to found a college leads to the same result. The right to found a college is said to belong to the king, and that a college can only be founded by his authority or license. Adams & Lambert, 4 Reports, 107. There are authorities for saying, that the former right is implied in the latter. Phillips vs. Bury, 2d Term Rep., 353, was a case, which turned upon the right of visitation and deprivation of the Rector of Exeter College, Oxford. Chief Justice Holt, in the course of his argument says, "the name of a college, wbich always supposeth a corporation.” In Adams vs. Lambert, supra, which was founded upon the Statute of Edward VI. (1 Edw. VI., ch. xiv.) by which colleges, chantries, etc., were given to the king, the court resolved as to the second clause : "Secondly, this second branch explains, that they ought to be incorporations by law or in reputation as is aforesaid,” that is as the court explains and distin. guishes rightfully reputed as such, having a lawful source or
“It is indeed probably true that the Colony in strict law had no power to create a corporation.” Prof. S. E. Baldwin, vol. iii. Transactions of New Haven Historical Society, p. 412. The founders of Yale College obtained in the act of 1701, a license for a College “from those claiming to act by his [the king's] authority.”—Id. p. 429.
beginning, but with some defects in the manner of their creation," or otherwise land could not belong to them." If the colony bad no power to found a college or to incorporate one, we are thus led to the spectacle of one of our oldest and most venerable colleges being for nearly a hundred years, and until the recognition of its charter by the State, without a valid charter. A growing feeling of independence would not save it, as long as the colony was subject and acknowledged its subjection to the English crown and acted under its charter. The voluntary requirement in the act of 1745, of oaths of allegi. ance and loyalty (the colonial charter required no oaths of allegiance), is not very pregnant proof of such feeling of independence. We cannot but suspect error in the positions or reasoning, which lead to such an extraordinary result.
Unquestionably by the law of England, a charter of incorporation or of a college must have proceeded from the crown or from parliament. The pope had no right or color of right to found the College of Greystocke and give its Rector and six priests presentable livings, as was the case in Dyer. But that does not touch the point of inquiry. The question is not as to the rights of the crown but as to the rights of the colonists. The cbarter of Charles II , bearing date April 20, 1662, proceeded from the crown and went into full operation on the union of the colonies of Connecticut and New Haven in 1665. It gave certain power and authority, derived from the crown, to the colony, and the question is as to the extent of such power and authority.
We shall consider first, the extent of the grant, and secondly the restriction upon it. As to the first of these points, and in support of our construction, we premise that so liberal were the provisions of this charter, that under it as a State Constitution the State of Connecticut until 1818, exercised all the powers of a sovereign State with the approbation and sup. port of its courts.
It chartered incorporations, as for example incorporated cities and banks, and if it did not found a college or give leave to found one, it was because Yale College was already founded, which it recognized, to which it made grants, and of whose corporation after 1792, its Governor and Lieutenant-Governor and six senior assistants, and afterwards six senior