6

Glover's legacy in 1653 to Harvard College, for and towards the maintenance of a Fellow there five pounds forever,' must be understood as referring, not to the Fellows of the corporation, but to a person approaching somewhat to an English Fellow; that is, to be taught, and not to teach.

So Keyne's legacy of £320 in 1653, 'for poor and hopeful scholars, and for some addition yearly to the poorer sort of Fellows.' This surely refers to a class of Fellows resident at the college, not of the corporation.

Pennoyer's fund in 1670 is given, that two Fellows and two scholars forever should be educated, brought up, and maintained in the college at Cambridge.' This answers exactly to the English Fellows-not to preserve teachers, but to educate persons. It is impossible to believe that the Fellows of the corporation were to be educated, &c.

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 consists of five Fellows. In point of fact we know that three of the then existing corporation, to wit, Mr. Shepherd, 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 doubt'Not,' as he says, 'that usage of a charter; but if they are charter will tend to explain

ful, the usage is of great force. can overturn the clear words doubtful, the usage under the the meaning of them.'*

But what was the case to which his remarks applied? It was respecting the borough of Portsmouth, a corporation by presumption, and also by 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 major part of them, should assemble, and should continue till they, or the major part of them, should elect a Mayor. The sole question was, whether the charter meant 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 it decisive; but they thought it also a right construction of the charter.

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, in the present case, if there had been a long usage to elect the tutors, that would certainly prove that tutors were not ineligi ble. But if from the first institution of the college to this time, none but tutors had been chosen Fellows,' it would not prove that none others 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 be 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.

* 1 Cowper R. 250.

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, for the space of twenty-two years (viz. 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 others, if not from election, at least from acting as Fellows after election, unless they 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 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.

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, 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 the confirmation by the 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 its Fel

lows were then non-residents. It 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. forever.'

Now, for myself, I should be willing to rest the whole case upon this single solemn act or ratification. It is the highest sovereign sanction of the charter and of the corporation de facto then being rightful.

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 Cambridge, the corporation must be local, and the corporators or Fellows must therefore be local residents.

It

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 as such only by locality; as the inhabitants of a town or parish are corporators only during their residence. But the corporation is not itself local. 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 moves, 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 only so long 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 anywhere, unless expressly prohibited by the charter. The law never imputes

locality to corporátors, 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 corporation reject it accordingly.

[At a subsequent adjournment of the Board, Professor Everett and Professor Norton were heard before the Board in support of the memorial. A short discussion then ensued among the members; and the claim of the memorialists was rejected by the Board, nemine contradicente.]

ART. IV. TRIAL BY JURY.

A Treatise on the Law and Practice of Juries as amended by the Statute of 6 Geo. IV. c. 50, including the Coroner's Inquest, &c. By JAMES KENNEDY, Esq. of Lincoln's Inn, Barrister at Law. London, 1826. pp. 196.

THE institution of the jury is celebrated as the bulwark of British liberty, and the writers of Great Britain and the United States, the only two countries where trial by jury is supposed to be brought to anything like perfection, rarely allude to this tribunal except in terms of eulogy, taking for granted that the right of being tried by such a body is a most glorious and distinguishing privilege. This admiration and praise are so general and indiscriminate, that we should hardly know to what treatise to resort to find a rigid investigation of the peculiar advantages and defects, and all the distinct characteristics of this mode of trial. We have accordingly thought it would be worth while to scrutinize this institution a little more closely, and attempt to make some estimate of its peculiar and characteristic excellencies, and at the same time inquire whether our admiration is, in all respects, well founded. To whatever conclusions we may be led respecting this particular tribunal, the investigation will not be without its fruits, as it relates to a branch of the civil constitution of the most vital and homefelt importance, since of all the powers and prerogatives of government, none so nearly touches the welfare