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, which 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 distinguishes 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 had 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 charter 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 support 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

senators became members. The amplitude of the grant contained in the royal charter for the purposes of government, it would seem, cannot well be questioned. This charter created a public corporation, with governmental and political powers over a vast territory, whose boundaries extend westward to the South sea. The crown granted all this territory to the colonists with the reservation only of a royalty on the precious metals. It established the government of a Governor, deputy Governor, and twelve assistants, and the deputies of the towns, all annually elected, the assistants and deputies being required to meet in General Assembly twice a year. It authorized the colony to have a common seal, to create judicial tribunals, make freemen and officers, impose fines, to array the citizens in military force for the common defence, to resist invasion, to exercise martial law in all cases where it might be necessary, and to

carry on commerce.

Among other things, the charter gave to the Legislature power as follows: "From time to time to make, ordain and establish all manner of wholesome and reasonable laws, statutes, ordinances, directions, and instructions, not contrary to the laws of the realm of England, as well for settling the forms and ceremonies of government and magistracy fit and necessary for said plantation. . . . As by the said Assembly or the major part of them shall be thought fit, and for the directing, ruling and disposing of all other matters and things whereby our said people inhabiting there may be so religiously, peaceably, and civilly governed as their good life and orderly conversation may win and invite the natives to the knowledge and obedience of the true God and the Saviour of mankind and the Christian faith," etc.

It is to be considered, that the charter is for no definite period but is for the present and future government of a great territory in the Western World then in a great measure unknown. The colonists were then indeed few, but immigration was permitted and encouraged by the charter itself and was expected. It is to be noticed, that there is no limitation of the kind of laws which might be enacted, except that they were to be wholesome and reasonable. The expression is "all manner of wholesome and reasonable laws." "As by the said Assem

bly or the major part of them shall be thought fit." The Legislature was to judge of their fitness. That was left to their discretion. They were not intended to be laws for an ignorant and degraded people but for a religious, peaceable and civilized community of Englishmen and their descendants, of such a nature that the colonists by the conspicuous example of their good life and orderly conduct should win and attract the savage natives of the country to the Christian faith. Had the Legislature no power to provide for the education of such a community according to its wants? Evidently it had and to determine the kind of education which should be pro. vided and the institution, "fit" for that purpose. It is reasonable to conclude, that it was expected and intended that persons should be educated in such manner as to be qualified for the different offices of magistracy and representation provided for in the charter and as successors to supply the place of the ministers of the gospel in the colony, many of whom were college men, as teachers of the Christian faith and those who would give like instruction to future immigrants and to the descendants of the colonists. This is what the original charter of Yale College intends.

The colonial charter is not to be construed with the strictness of a penal statute but with the liberality of a remedial one or the fairness with which a constitution of government should be construed, so as neither to enlarge or contract its meaning and according to the familiar rule by which the words of a grant shall be taken most strongly against the grantor, because he chooses his own words and, if he intended to restrain their meaning, should have so expressed himself. Whether that rule ordinarily applies to the crown or not is of no consequence. The charter itself provides that all the king's subjects in the colony shall enjoy all the privileges of free and natural subjects within the realm of England and that it "shall be construed" as shall be "most favorable on the behalf and for the best interest" of the colony, "although express mention. . of the certainty of the premises or any of them. . is not made." The final provision is: "And lastly we do for us our heirs and successors grant to the said Governor and Company and their successors by these presents, That these our

letters patent shall be firm, good, and effectual in the law, to all intents, constructions, and purposes whatever, according to our true intent and meaning herein before declared, as shall be construed, reputed, and adjudged most favorable on the behalf and for the best interest and behoof of the said Governor and Company and their successors, although express mention of the true yearly value or certainty of the premises or any of them or any other gifts or grants by us or by any of our progenitors or predecessors. . . is not made, or any statute, act, ordinance, provision, proclamation or restriction heretofore had, made, enacted, ordained, or any other matter, cause or thing to the contrary whereof notwithstanding."

This favorable and beneficial construction solves the doubt, if any could be justly entertained, that "all manner of wholesome and reasonable laws" include the right of the colony to provide for education both higher and lower, to charter a college for that purpose, if the General Assembly "thought fit," and as a necessary means of its proper and successful management, and to enable it to hold lands, to incorporate it, unless there is some legal restriction, which restrains in this respect the fullness of the grant.

Under the Massachusetts charter a charter had been granted to Harvard University by the legislature of the colony, as must have been well known in England, and to this time had remained undisturbed. No charter for a college in America had been granted directly by the crown. The charter of William and Mary in 1693 and that of Dartmouth in 1769 bear date, the one more than thirty years, the other more than a hundred years after the date of the Connecticut charter. The charter of King's [Columbia] College, founding and incorporating it, although in the name of George 2d, did not proceed directly from the king. It was granted in 1754, on a petition to the Lieutenant-Governor of the Province of New York and his council, by the Lieutenant-Governor with the assent of the council under the seal of the province, and was directed to be recorded in the book of patents of the province, not of England. That charter was confirmed by a statute of the State of New York in 1787. So the charter of Queen's College in New Jersey, now Rutgers, although in the name of