tomed to esteem most valuable, must sooner or later take its moral and intellectual tone from the character of these institutions. The magnitude of the interests, therefore, which they involve, cannot fail to render whatever pertains to their structure, character and usefulness, an object of superlative importance to every American patriot and citizen. I could not fail, therefore, to be justified in inviting the attention of the American Institute of Instruction, to any feature in their organization, which, on the one hand, might promise to enhance their efficiency and promote their usefulness; or which, on the other, might threaten to paralyze their energies, and impair or destroy the hopes and confidence reposed in them by the country which has founded and cherished them. Our universities, colleges, academies, our institutions too for the study of law, medicine and divinity, are, with very few exceptions, established on essentially the same plan. They consist of a corporate board of trustees, whose number varies from seven up to fifty or sixty persons, in whom the legal interest of the institution is vested. The beneficial interest belongs to the public. Besides this corporate board of trustees, there is sometimes attached to the institution a board of oversight, or superintendence, who have the power of affirming or exposing the proceedings of the inferior board, who have the right of interference when they think proper, and who are entitled to be consulted on extraordinary occasions. Such is the constitution of Harvard University. The common law right of visitation resides in the founder, his heirs, or his representative. This right is, therefore, sometimes in the state, sometimes in an individual, or several individuals, and sometimes in a select body of men, to whom the right of visitation has been transferred by the founder. The right of visitation in Harvard University is said to reside in the Board of Overseers.*

A faculty of which these institutions further consist, is a select body of learned men, to whom the instruction and the administration of the discipline are, generally with some qualification, entrusted. It is, too, a body perfectly well recognised as distinct from the board of trustees. The administra

*Mr. Webster thinks, that the visitatorial power in Harvard University belongs to the fellows, or members of the corporation; though he admits, that some power of inspection is given to the overseers." Wheaton's Reports, Vol. IV. p. 567.-Letter to John Lowell, Esq., ascribed to Edward Everett. Boston, 1824, pp. 91–93.

tion of the discipline comprises the judicial and executive authority of the institution. The faculty customarily assemble by themselves to transact the business of the institution, they are governed by their own rules, they act by their president, or by a committee of their own body, they usually have their own secretary, and keep a record of their own proceedings. The faculty, moreover, are the body, which is held by the public, to be chiefly responsible for the good conduct of the institution. It is the department through which it is practically known to the community, and on which it must principally depend for character and usefulness. The pupils and the parents communicate almost entirely with the faculty, scarcely at all with the trustees. And it is a part of the history of the literary institutions of this country, that they have been chiefly built up by the sacrifices, the exertions, and the wise management of their faculties. The presiding member of the faculty, often, though by no means always, holds his office during good behaviour, and sometimes, though not often, the professors hold theirs by the same tenure. presiding member of the faculty is usually a member (ex officio) of the board of trustees.

The

This rapid statement of the manner in which our universities, colleges, academies, and schools of the professions of whatever kind, are usually constituted, has not been made without a special object in view. It is preliminary to the examination which, on this occasion, I propose to make, into the nature of the relation which subsists between the trustees and faculties of these institutions, and into the chief reciprocal duties which spring from this relation. Unquestionably, it is the duty both of the trustees and faculties of the important institutions entrusted to them, to co-operate with each other harmoniously and energetically in building up their institutions, in providing them with every thing necessary to successful instruction, in conciliating public favor to them, and inspiring public confidence in them. It is very manifest, that all this is their duty; but it is equally the duty of every good citizen to do the same thing, as opportunity permits and occasion is presented. This view and this language, then, are too general and too indefinite to be instructive; and to be really and practically informed on this subject, we must descend to particulars. The inquiry must be narrowed down to the nature of this relation, and the peculiar duties arising from it. To this

end, and with a view to secure to myself the advantages of order and arrangement, I propose,

I. To inquire into the legal character of the relation, and to state the legal principles and doctrines, which have a bearing on it, so far as I have been able to collect them.

II. To draw aid and illustration from the reason of the thing, and from the analogies furnished by other kindred relations.

III. To examine it by the light of experience drawn from the history of our colleges and other literary institutions.

I. The corporate character of the board of trustees has already been adverted to. "Corporations for the advancement of learning, (denominated by us colleges,) were entirely unknown to the ancients, and are," says Chancellor Kent, "the fruits of modern invention. In the time of the later Roman Emperors, however, the professors in the different sciences, began to be allowed regular salaries from the government, to become objects of public regulation and discipline. By the close of the third century," continues he, "these literary establishments, especially the schools at Rome, Constantinople, Alexandria and Berytus, began to assume the appearance of public institutions; and privileges and honors were bestowed upon the professors and students, who were subjected to visitation and inspection, by the civil and ecclesiastical powers. It was not, however, until at least the 13th century, that colleges and universities began to confer degrees, and to attain the authority and influence which they now enjoy. The University of Paris was the first which assumed the form of our modern colleges."*

The board of trustees is designed to give the institution perpetuity of existence, and along with this, a stability and permanence, which could not be secured by a private institution depending on the life, talents and resources of one or more individuals. This feature in their structure, to wit, the permanence and stability secured by a perpetual existence, ist extremely valuable, and even essential, because large funds, extensive libraries, and a variety of philosophical and other apparatus, must, beyond what can ordinarily be collected in a single age, is indispensable to any considerable success and

* Kent's Commentaries on American Law, Vol. II. p. 218. Angel and Ames on Corporations, pp. 29, 30,

usefulness. In the board of trustees resides the legislative power of the institution. The trustees, too, manage the funds. and appoint the faculty. It will hereafter be seen, in what way, and with what qualifications, it is their duty to exercise these important powers. A board of trustees, moreover, selected from various professions, composed of men of eminence, sharing largely of the public confidence, and having a commanding influence with the government and in private society, is generally supposed to command a more extensive patronage for the institution, and to give it a more advantageous connexion with the public, than it could otherwise enjoy.

The inquiry next presents itself, what is the Faculty of a college or university; and what is its constitution in contemplation of law?

The idea of one corporation being engrafted on another, seems to be familiar to the law, and those engraftments on their original corporations, are called, in reference to them, quasi corporations. Thus, the supervisors of a county in the state of New York, have been decided to be a corporation for certain special purposes pertaining to the country which they represent.* So too, the overseers of the poor, and the loan officers of a county, are quasi corporations, invested with corporate powers, limited, indeed, but co-extensive with the duties imposed upon them by statute or by usage.† School districts are included in the same class of corporations. It has been decided by the Supreme Court of Massachusetts, that a school district may sue as a corporation and by its corporate name. "These corporations," says Chief Justice Parker, "possess by necessary implication, the authority which is requisite to execute the purposes of their creation."

Such is the true nature, as I understand it, and constitution of the faculties of our colleges in contemplation of law. They seem to be that "kind of assembly in corporations," which Mr. Kyd denominates "administrative," while the boards of trustees comprise the "legislative and electoral assemblies in corporations," spoken of by the same learned

*Jackson v. Hartwell, 8 Johnson's Reports, 422.

2 Kent's Commentaries, 221.-North Hempstead v. Hempstead, 2 Wendell's Reports, 109.

Angel on Corporations, p. 16.

§ 4th School District v. Wood, 13 Mass. Reports, 192.

author. This view of the rightful constitution of the Faculties of our colleges, is highly important, as it tends to give them the stability and independence essential to the successful discharge of the duties of instruction and discipline, which ought always to be committed to them. The law pertaining to the relation between the trustees and faculty, is scanty and rather indefinite, as the nature of the relation, and the relative positions, rights, duties, privileges and responsibilities of the respective parties, have never, so far as I know, been submitted to judicial examination in this country. It is much to be wished, that the analytical mind of a Mansfield, a Parsons, a Scott, or a Marshall, might be brought to bear on this entire subject.

The adjustment of many questions pertaining to this relation, belongs, it seems, to the person or body of men, in whom the visitatorial power resides. The visitor has a special jurisdiction, and his tribunal is recognised by the law of the land. Lord Mansfield, in commenting upon the convenience of the tribunal of a visitor, says," it is a forum domesticum calculated to determine sine strepitu all disputes that arise within learned bodies. This power being exercised properly and without parade, is of infinite use."* A visitor may administer an oath, or require an answer upon oath. He ought always to proceed, whether upon a general visitation, or a particular appeal, summarily, simply, and entirely without the noise and parade of a court, "for herein consists the whole excellence of his tribunal."+

II. The reason of the thing, and the analogies furnished by the kindred relations, will be found much more instructive on this subject, than the law of the land, which, it seems, has not yet been fully declared and illustrated by our judicial tribunal.

Guided, then, by the reason of the thing, in what position does the faculty of a college naturally stand in reference to the board of trustees? Does the circumstance, that the faculty are appointed by the trustees, of itself place the former in an inferior situation in respect to the latter? Is a faculty naturally subordinate to a board of trustees? If so, in what respects? A correct answer to these questions is highly im

* The King vs the Bishop of Ely, 1 Blackstone's Reports, p. 82.

t Ibid. 7 Pickering's Reports, 303.--Angel and Ames on Corporations, 410-419. Allen vs. Mc Keen, 1 Sumner's Reports, 276.-Auburn Academy vs. Strong, 1 Hopkin's Chancery Reports, 278.