USA > Connecticut > A complete history of Connecticut, civil and ecclesiastical, from the emigration of its first planters, from England, in the year 1630, to the year 1764; and to the close of the Indian wars > Part 34
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The income of the farm at Rhode-Island, given by the bishop, was not appropriated to any religious use ; but to the best scholars in Latin and Greek, which appropria- tion ought be sacredly and inviolably observed, as well as the design of the founders.
Yet it was declared that the corporation had a just sense of the generosity of those gentlemen ; and for that and many other reasons, were willing to do all that they could to gratify the gentlemen of the church of England, consist- ent with the design of the founders ; and particularly had given liberty, to those students who have been educated in the worship of the church of England, and were of that communion, to be absent at those times when the sacrament was administered, in that church ; upon Christmas, and at some such other times, as would not be an infraction of the general and standing rules of the college.
It had been further pleaded in respect to the church of England, that there were a number of that profession in the colony, who contributed something to the support of the college.
With respect to this, it was allowed, that when a com- munity was jointly at some public charge, it is equitable, that the benefit of each individual should be consulted, so far as it was consistent with the general design and good of the whole, or of the majority. And though it was im- possible that such a benefit should be mathematically pro- portioned, to each individual, yet this college had edu- cated as many episcopal ministers and others, as they de- sired or needed, which had been a sufficient compensa- tion, for their paying about an halfpenny sterling per man, for the annual support of the college. And it might con- tinue to be as serviceable to them as it had been, if they
* Jacob's Dict. t Wood's, 113.
3º4
HISTORY OF
CHAP. XII.
Book II. pleased; as the orders of it remained substantially the same.
1754.
It was further observed, that this college was founded, and in a good measure endowed, many years before any donations were made by churchmen, and before there was so much as one episcopal minister in the colony .*
This tract was written by the president, with a view to show the rights of colleges, as distinct societies, and the practice of their worshipping, as such societies, by them- selves; to vindicate the authority of the college, in what they had already done, in ordering a distinct worship in the college, on the Lord's day, and to prepare the way for the settlement of a professor of divinity in the college. It was written in the most cool and unexceptionable manner possible. It, however, gave great uneasiness to a certain class of men in the colony ; and especially the establish- ment of a professor, and a distinct worship in the college. There were some principal men in New-Haven, and in other parts of the colony, who were opposed to the assem- bly's catechism, and to the confession of faith, and, indeed, to all confessions and formulas of doctrine. They, there- fore, became fixed, strong opposers to the college, to the president, and to the settlement of a professor. They were displeased with the resolves and declaration of the corporation, at their meeting, in November, 1753, with a view to preserve the orthodoxy of the college, and inviola- bly to maintain and prosecute the design of its founders.
Professor nomina- ¿èd, 1755.
The president and fellows, agreeably to their former re- solutions in September, 1755, nominated the Rev. Mr. Naphtali Daggett, pastor of a church on Long-Island, to be professor of divinity. Upon application to the pres- bytery, he was dismissed from his charge; and, in the November following, came to New-Haven, and preached in the college, with general approbation.
Installed, March, 1750 ..
On the 3d of March, 1756, the president and fellows mct, and spent a day in his examination, with respect to his principles in religion, his knowledge in divinity, cases of conscience, scripture history and chronology, antiquity, skill in the Hebrew language, and various other qualifica- tions for a professor. In this examination, he gave full satisfaction to the corporation. The next day, he preach- ed a sermon in the college hall, upon the text, 1 Corinth. ii. 2. "For I determined not to know any thing among you, save JESUS CHRIST, and him crucified." He gave his full and explicit consent to all the doctrines contained in our catechism, and confession of faith, and to the rules
* President Clap's religious institution of Colleges.
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of church discipline established in the churches of this Book II. colony. He also exhibited a full confession of his faith, of his own composition ; and expressly renounced the prin- 1756. cipal errors prevailing in those times ; agreeably to the act of the corporation, Nov. 21st, 1753, which has been before recited. Thus, after preaching about four months in the college, and the preceding examination and formali- ties, he was inaugurated and installed professor of divinity, in Yale College, by the reverend corporation.
About the same time, Mr. Gershom Clark, of Lebanon, generously gave thirty-three pounds ten shillings sterling, to be put out at interest, for the use of a professor of di- vinity. The interest of this, with that of Mr. Livingston's donation, before mentioned, with the rents of the college lands, which the corporation had agreed to lease for that purpose, were sufficient for the annual support of the pro- fessor.
President Clap had previously purchased and given a lot of land, for the use of a professor of divinity, for the time being, who should be settled and continued according to the act of the corporation, November 21st, 1753, and constantly preach in the college hall, or chapel, except in the vacations.
A considerable number of the principal gentlemen of the colony, in approbation of the settlement of the professor, for his encouragement, and the benefit of the college, gene- rously entered into a subscription, or contribution, for the purpose of building the professor a house, under similar limitations .* This was raised in June, 1757, and com- 1757. pletely finished the next summer. It cost 285 pounds ster- ling. The president, with all proper formalities, in the presence of a considerable number of gentlemen, convened on the occasion, put the professor in possession of it ; de- claring that it was built for the use of a professor of divin- ity in the college, who should preach all the doctrines con- tained in our catechism and confession of faith; and that in case he, or his successors, should hold, teach, or main- tain any contrary doctrine, he, or they, would have no right to any use or improvement of it. The solemnity was then concluded with prayer, and singing a psalm.
At a meeting of the corporation, June 29th, 1757, they The presi- examined, and approved, all the accounts of the receipts dent's ac- and disbursements of money, for building Connecticut Hall. counts ex-
* The governor, deputy governor, gentlemen of the council, president Clap, numbers of the corporation, and others of the clergy, were subscri- bers. A list of them, and of their respective donations, is preserved in president Clap's history of the college.
amined, June 29th, 1757.
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Book II. Then, in view of the great care, labour, and generosity of the president, they passed the following vote, viz :
1757. "Whereas the Rev. President Clap hath had the care Thanks of and oversight of building the new college, called Connecti- the corpo- cut Hall, and laying out the sum of 1660 pounds sterling, tion to the; president. which appears to have been done with great prudence and frugality ; and the college built in a very elegant and hand- some manner, by means of his extraordinary care, dili- gence, and labour, through a course of several years : all which the said president has generously given for the ser- vice of said college. And the said president having also, of his own proper estate, purchased a lot for the professor of divinity, which has cost 52 pounds, lawful money, and given it to the college, for the said use for ever : This cor- poration think themselves bound, and do accordingly, ren- der their hearty and sincere thanks to the Rev. President Clap, for these extraordinary instances of his generosity : And as a standing testimony thereof, voted, that this be entered on their records."
At the same meeting, the tutors and a number of the students, made the following application, viz :
" Whereas this reverend corporation, of their paternal care and goodness, have settled a professor of divinity in this ecclesiastical society, whom we receive as an able minister of the New Testament; we, the subscribers, mem- bers of this society, having been admitted members, in full communion in sundry churches, and consenting to the ec- clesiastical constitution of the churches of this colony, as agreeable to the word of God, in doctrine and discipline ; are desirous to attend upon the ordinance of the Lord's supper, under the administration of the reverend professor ; and to walk together in stated christian communion, and holy subjection to all the ordinances of Christ ; and desire the approbation and sanction of this reverend body."
The corporation approved of this application, and, in consequence of it, the professor preached a sermon in the hall, adapted to the occasion; and the sacrament of the Lord's supper was attended, with all proper solemnities, on the 3d of July, for the first time in Yale College. It hath ever since, on the first Lord's day in each month, been administered in the college hall, or in the chapel, agreeably to the practice of the colleges in England. The state and constitution of the college, was, by these means, rendered much more perfect and agreeable. The profes- sor was an instructive and excellent preacher : his sermons were enriched with ideas and sound divinity ; were doctri- nal, experimental, and pungent. He was acceptable to the legislature, clergy, and people in general.
327
CHAP. XII. CONNECTICUT.
Notwithstanding, the settlement of a professor in the col- Book II. lege, and the administration of the ordinances in it, as a distinct ecclesiastial society, it was a very disagreeable and 1758. wounding affair to a certain class of men in the colony. They became enemies to the constitution of the college, and irreconcilable enemies to the president, notwithstand- ing his extraordinary care, labors, and generosity towards the college. They wrote one pamphlet after another a- gainst the college; against its constitution, against the president and the government of the college. It was insin- uated that there was corruption in the treasury, and that the money belonging to the college was embezzled or mis- applied. Much was said against the government of the college being in the hands of the clergy. It was urged that visitors ought to be appointed by the legislature to examine the accounts and affairs of the college. One of the writers who employed his pen and talents against the college, was Dr. Gale of Killingworth, a gentleman well known to be opposed to the doctrines contained in the as- sembly's catechism, and in the Westminster and Savoy confessions of faith. The other gentlemen who were reput- ed to be writers against the college, lay under the imputa- tion of being unfriendly to those doctrines. The same class of men wrote against the government of the colony at the same time, and insinuated that there was mismanagement with respect to the affairs of the public treasury. When the dispute afterwards arose, relative to the ordination at Wallingford, the writers in vindication of Mr. Dana and the ordination council, introduced the affairs of the college, expressed their resentment against the writer of the Reli- gious institution of colleges, and their disapprobation of the forming a church in the college. Several answers were written to those writers against the college, stating the ac- counts, and correcting their mistakes and misrepresenta- tions; but they would not be satisfied.
In May, 1763, nine gentlemen preferred a memorial to the honorable General Assembly, in which they represen- ted, that the General Assembly were the founders of the college. college ; and as such, had a right to appoint visitors, and reform abuses, if any were found. This right, the memo- rialists suggested, ought to be seasonably, and most expli- citly vindicated and asserted; or otherwise the college might become too independent ; and therefore prayed that the said assembly would pass an act, to authorise an appeal from any and every sentence given by the authority of the college, to the governor and council of this colony, for the time being : and that the assembly would immediately is-
1763. Memoriał against the
32.8
HISTORY OF
CHAP. XIÍ:
Book II. sue forth a commission of visitation, enabling some suita- ble persons to inquire into all the affairs of said college ; 1763. and either of themselves rectify abuses, which they may discover ; or make report of what they shall find, with their opinions thereon, to the said assembly, at their next ses- SION.
Counsel for the memo- rialists.
The counsel for the memorialists, were Jared Ingersoll and Samuel W. Johnson, Esquires, the two most learned and famous attornies, at that day, in the colony. Great ex- pectations were formed by the enemies of the college from this measure, and the great ability of their counsel ; and its friends were not without fears and anxieties. Gen- tlemen from different parts repaired to Hartford, to hear the pleadings. That class of people, who had been so long and so strongly opposed to the college, flattered them- selves with the pleasing prospect of bringing the college to their feet, and of amply reaping the fruit of their past labors.
President Clap viewed the cause of too great conse- quence to be trusted in any hands but his own ; and judg- ed it his duty, in faithfulness to the founders of the college, to the truth, and to the best interests of the churches, to employ his talents for the defence of the college, and to plead the cause himself, in the face of all opposition.
Their pleading.
The council for the memorialists, alledged, that the General Assembly founded the college, by giving a char- ter, in the year 1701 ; which contained a donation of about sixty pounds sterling, to be annually paid out of the pub- lic treasury ; and by sundry subsequent donations : espe- cially five tracts of land, in the year 1732 : and that the present assembly, as successors to the founders, had a right of visitation by the common law. They further alledged, that such an appeal, and visitation, were very necessary to preserve the good order and regulations of the college, upon many accounts, and particularly to preserve ortho- doxy in religion.
The president replied with great respect to the assem- bly, and with such knowledge in the law, as commanded respect and admiration from all who heard him.
The reply of the president.
'That the General Assembly; in their legislative capaci- tv, had the same authority over the college, and all the persons and estate's belonging to it, which they had over all other persons and estates in the colony, he readily con- ceded; and all that power which was necessary for the good of the college, or the general good of the community. And further, that an especial respect and gratitude were due to them, as its greatest benefactors ; yet, he alledged.
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that they were not to be considered as founders or visit- Boor II. ors in the sense of the common law. That the first trus- tees, undertakers and inspectors, who were nominated by 1763. the ministers with the general consent of the people, and by compact became a society or quasi corporation, (as lord Coke expresses it) nearly two years before they had a charter, were the founders of the college; and that they formed it, by making a large and formal donation of books; above a year before they had a charter from the govern- ment. That the college had a being, not only in fieri, in the purpose and intention of the undertakers (as lord Coke says*) but in esse, by the donation of books, money and land, actually made to it, before it had a charter. That major Fitch, of Norwich, made a donation, in writing, to the undertakers, of six hundred acres of land, and some materials to build a college house, in the time of the sit- ting of the assembly, some days before the charter was given ; and this donation he made to the collegiate school, as already set up, by the great pains and charges of the ministers. That the king, by giving a license to found a college, does not thereby; in law, become the founder in sensu dotationis ; and that he only is the founder of those' colleges or hospitals, to which he makes the first donation for founding. That lord Coke distinguished between fun- dator incipiens and fundator perficiens ; and said that he only is the founder quoad dotationem, (to whose heirs or successors the law gives a right of visitation) who makes the first donation.t And the right of visitation arises in law, from the interest which the founder has in the college or hospital by his donation. For if it be essentially per- verted from the design for which it was given, the dona- tion became void, and reverted to the donor or his heirs. The first donation only created the founder, and all subse- quent donations were presumed in law to be given for the same end and design with the first, unless some particular limitation be expressly made.
That if a common person makes a donation to found a college or hospital, though ever so small, and the king afterwards endows it with large possessions, yet the com- mon person is the founder, and not the king.#
That a license to found, and a charter of incorporation, are in their own nature distinct ; either may be first, in law ; and may either precede or succeed the first fundamental donation.
When the fundamental donation is made before the li- cense to found, there the license is only a formal and ex-
* Coke 10 Rep. t Coke 10 Report :. # Wood's Institutes,
R. 2
330
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Book IL. plicit confirmation from the crown, of what was before done by the general license given by the common and sta- 1763. tute law ; by which every man may give his estate for pub- lic, pious and charitable uses, upon such conditions and regulations, as he shall see cause .* And the feoffees in trust are the legal proprietors of such donations, accord- ing to the conditions and limitations with which they are made ; and have a legal right to hold and lease, and to dispose of the profits as a quasi corporation, for those par- ticular purposes : and may, by a long course of stated and regular conduct, become a complete legal corporation, by prescription. And the king's charter or license only makes or declares that to be a legal corporation, at the first, which may become such, by immemorial usage and custom.
In a license to found, the words FOUND, ERECT, or any words of the like import, are indifferent in law, and suffi- cient to make a foundation ; and in the first charter or grant to the college, these words are promiscuously used and applied to the first trustees only. The first charter plainly supposes ten trustees, partners or undertakers an- tecedently existing ; and a school already founded in fact, (though not fully and completely so in law) by donations of lands, goods and monies, before given ; and therefore gives them a full legal right, liberty and privilege to pro- ceed in erecting, endowing and governing the school; which they had a general and imperfect right to do by the common law. And the charter declares them able in à legal capacity to "demand, hold and possess, all such lands, goods and monies as have heretofore been given, (as well as those which might hereafter be given) for the founding, erecting and endowing the said school."
And there is no limitation ; that their' giving to the first trustees a right to receive sixty pounds of the public trea- sury a year after, and annually, and to improve it at their discretion for the good of the school, should be deemed the founding of it ; to be sure not in such a sense as to an- nul the former foundation ; much less could any endow- ·ments made thirty years after, make them the founders in the sense of the common law. Besides, the preamble to the charter of 1745, expressly says, that the first trustees founded the college.
Further, with respect to an " appeal from all and every sentence given by the authority of the college, to the gov- ernor and council of this colony for the time being," as prayed for by the memorialists, the president observed,
* See 39 Eliz. chap. v. and the laws of Connecticut.
.
,
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that it would retard and obstruct all the proceedings of the Book II. authority of the college : That it was found by universal experience, that in all instances wherein liberty of appeal 1763. is allowed, the judgment appealed from is of no force or efficacy ; except that which may arise from the extraordi- nary trouble and charge of bringing the case to trial in the court to which the appeal is made : That such a constitu- tion would take the government of the college wholly out. of the hands of those in whom it was originally vested ; and be contrary to the charter. That such an universal liberty of appeal, especially in criminal cases, was not allowed in any community whatsoever ; and that in those few instances in which appeals are allowed in some other colleges, they are under peculiar conditions and restrictions.
With respect to the power of visitation, the president. observed, that by the common law it was expressly limit- ed to the statutes of the founder ;* which are the condi- tions or limitations of the use of the founder's donation ; and the visitor can do nothing but rectify those things which are plainly repugnant to those limitations ; or claim a forfeiture. But as no such statutes made by the Gene- ral Assembly, can be found, such visitors would have no power at all, or be altogether arbitrary, like the visitors sent to Magdalen college by king James II.
If it should be supposed, that there is any need of any overseers, under the name and title of visitors, the first trustees and their successors may be properly denomina- ted such ; and in the first plan of the college, they are ex- pressly called inspectors. That to have visitors over visi- tors, or inspectors, would make endless trouble and con- fusion. That matters of property must be determined by the stated executive courts, according to the course of the common law, but to erect any new kind of court over the affairs of the college, which are committed to the president and fellows, would be an infringement on their charter. `Though the General Assembly still retain such a supreme power, as that if there should be any plain breach of trust, cognizable by a court of chancery, or any such mis- conduct in the corporation, as should be plainly detrimen- tal to the public good, they may rectify it in their legisla- tive capacity.
The last great public good pretended to be aimed at by the memorialists, was the preservation of orthodoxy in the college. This was a mere pretence. The petitioners and their abettors well knew, that the most effectual measures had been taken to preserve the orthodoxy of the college,
* Lord Raymond's Reports, vol. i. p. 7.
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Book II. and that it was secured in the most effectual manner, in an entire conformity to the design and will of the founders, 1763. and to the religious constitution of the colony. This was the grand difficulty, and the principal cause of their oppo- sition to the college. There were, at that time, numbers of leading men in New-Haven; and in other parts of the colony, who were strongly opposed to the doctrines cont tained in the confession of faith, and in the catechism : es- pecially to the doctrines of the decrees, of the divine sove- reignty, of election, original sin, regeneration by the super- natural influence of the divine Spirit, and the perseverance of the saints. They were opposed to all confessions of faith, and some of them wrote against them. Two, or more, even of the corporation, were supposed to be among this number. The president well knew them .* In his reply, therefore, to this part of the memorial, he observed,
That, whatever was the occasion or design of it, he was glad that such an important point was moved. That it was well known, that the president and fellows, or trus- tees, had, from the beginning, shewn a proper care and zeal to preserve orthodoxy in all the governors of the col- lege ; and to such a degree, as to be disagreeable to some gentlemen of late ; who had, on that account, endeavoured to obstruct the government and flourishing state of the col- lege. That the orthodoxy of it was settled and secured upon the best foundation that human wisdom, directed by the general rules of God's word, could devise. That, ac- cording to the original design of the founders of the college, the president, fellows, professor of divinity, and tutors, are to be admitted only upon condition of their consent to the confession of faith, agreed upon by the churches of the colony, anno 1708, and established by the laws of the gov- ernment. That there was not the like security of the or- thodoxy of visitors, or any other in the civil order, except his most excellent majesty ; who, by the act of union, was obliged to consent to the Westminster confession of faith, received in the church of Scotland, as being agreeable to the word of God, and containing the sum and substance of the doctrine of the reformed churches. And that, as the governors of the college were satisfied that the body of the honourable assembly were fully orthodox, so they were entirely easy under their superintendence, relying, princi- pally, upon the care of the great Head of the church ; yet they could not have the same security in any other order of men, who might be substituted by them. And that one
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