LC89 Humphreys, Willard Cunningham. 
 H8 Government and Education in 
 the United States.
 
 LIBRARY 
 
 UNIVERSITY OF CALIFORNIA 
 
 RIVEitSiDE
 
 GOVERNMENT AND EDUCATION 
 
 IN THE 
 
 UNITED STATES. 
 
 DISSERTATION IN PART FULFILLMENT OF THE CON- 
 DITIONS NECESSARY FOR THE DEGREE OF 
 PH.D. IN THE SCHOOL OF POLITICAL 
 SCIENCE, COLUMBIA COLLEGE. 
 
 BY 
 
 WILLARD C. HUMPHREYS, A. M., 
 
 Seligman Prize Fellow. 
 
 PRESS OF A. E. CHASMAR & Co., 
 833 BROADWAY, N. Y.
 
 H.f
 
 TABLE OK CONTENTS. 
 
 PAGE. 
 
 Chapter I. Introduction 5 
 
 Chapter II. General Theory of Our System, and Extent of 
 
 Aid by The National Government 7 
 
 Chapter III. Education in the Commonwealths 14 
 
 Chapter IV. The Legal Relations of the Public School 25 
 
 Chapter V. The Legal Relations of the American College. .31 
 
 Chapter VI. Conclusion 51
 
 State Aid to and Control of Educational 
 Institutions in the United States. 
 
 CHAPTER I. 
 INTRODUCTION. 
 
 It is the purpose of the following dissertation to indicate 
 briefly the present condition of our educational system in its 
 relations with the government. It will not include within its 
 scope a history of the various phases of development through 
 which our schools and colleges have passed, and still more 
 foreign to its purpose would be any consideration of the internal 
 management of our educational institutions or criticism of their 
 methods and subjects of study : the former has very recently 
 been thoroughly treated in the monographs of the Johns Hop- 
 kins University (i) and the more general works of Boone and 
 others, (2) while the latter constitutes a larger part of the sub- 
 ject-matter of the State reports, and provides a theme of appar- 
 parently never-failing interest to the current reviews and 
 magazines. 
 
 Concerning the utility of State interference in educational 
 matters, and its legitimacy as an object of government, it is not 
 necessary to speak at length in this place, except to call atten- 
 tion to the favor which such interference now finds with politi- 
 cal economists, and the somewhat singular unanimity of assent 
 
 (i.) The monographs of this series are : The College of William and Mary, by Her- 
 bert B. Adams, 1888 ; Thomas Jefferson and the University of Virginia, by Herbert B. 
 Adams, 1888 ; History of Education in North Carolina, by Claries L. Smith, 1888 ; History 
 of Higher Education in South Carolina, by C. Meriwether, 1889; Education in Georgia, 
 by Charles E. Jones, 1880; Education in Florida, by George G. Bush, 1889; History of 
 Education in Wisconsin, by David Spencer and William F. Allen, 1889. Others are in 
 preparation. 
 
 (2.) R. G. Boone, Education in the United States, 1889.
 
 with which the general doctrine is received. This assent is the 
 more remarkable because it is a growth of comparatively 
 recent years. In 1775, Adam Smith, while not failing to recog- 
 nize the value of mental attainments as an element of national 
 excellence, still spoke with decided emphasis against the estab- 
 lishment of a general system of public instruction ; (i) while 
 to-day even the most consistent of the laissiz faire political 
 writers proclaim popular education, supported and controlled 
 by government authority to be a fundamental doctrine of all 
 sound economic creeds. Whether this change of ideas is a 
 natural, or perhaps even necessary, result of the growing prev- 
 alence of democratic tendencies, I will not venture to say ; 
 this, however, is certain, that all the arguments brought for- 
 ward in support of compulsory public instruction apply with 
 special fitness to a democratic community, and are further rein- 
 forced by the peculiar circumstances of the people of the United 
 States. Washington was actuated by more far-seeing motives 
 than a desire for rhetorical display when he urged upon the 
 people the necessity of disseminating information among the 
 people ; (2) and Jefferson, with all his zeal for popular instruc- 
 tion, perhaps builded even better than he knew, when, by his 
 untiring efforts to establish an effcient school system in Vir- 
 ginia, he set an example that has been followed with eagerness, 
 if not always with wisdom, in all the States of the Union. (3) 
 
 The results which this movement has achieved, the princi- 
 ples which have guided it, and the condition in which the sys- 
 tem now is, will constitute the subject of inquiry of the present 
 essay. 
 
 (x ) Adam Smith, Wealth of Nations. Book V., Chap I., Articles 2 and 3. Adam 
 omith was, it is true, fully alive to the advantages of generally diffused intelligence even 
 among the poorest classes ; but was opposed to any system of public instruction which 
 should impart more than the rudiments of common education. And as to the maintenance 
 of common or primary schools, while he does not deny the justice of forcing the whole 
 society to contribute to it, he thinks that " this expense might with equal propriety and 
 even with some advantage be defrayed altogether by those who receive the immediate 
 benefit of such education and instruction" a sentiment utterly at variance with the 
 opinions of more recent writers upon this subject. For a statement of what may be 
 regarded as the generally adopted present view of this matter, see Henry Fawcett, 
 Manual of Political Economy, Bk. II., Chap. VIII. 
 
 (a.) See especially his Farewell Address. 
 
 (3 ) See the Writings of Thomas Jefferson, Edited by by H. A. Washington, New 
 York, 1855, especially Vol. IV., p. 317, and Vol. VI., pp. 517/542^ 564. The reservation, in 
 the Ordinance of 1787, of lot number sixteen in each township was due to Thomas Jeffer- 
 son's influence He had in May, 1784, as chairman of the Committee on the Organization 
 of the Western Territory, recommended the reservation of "the central section of every 
 township for the maintenance of public schools."
 
 CHAPTER II. 
 
 GENERAL THEORY OF OUR SYSTEM AND EXTENT OF 
 AID BY THE NATIONAL GOVERNMENT. 
 
 One of the most conspicuous features of the American 
 school system is its representative character. The doctrine of 
 the sovereignty of the people, which pervades all our social 
 and political organizations, is carried to its furthest limits in 
 our institutions of public instruction ; and the principle to 
 which we are most strongly attached is thus fitly exhibited in 
 that feature of our civilization upon which we set the highest 
 value. As stated by Bishop Fraser in his Report to the Schools 
 Enquiry Commission: (i) "Local self-government is the un- 
 derlying principle of democratic institutions ; local self-govern- 
 ment is the mainspring of the American school system." This 
 circumstance that the schools are thus directly in the hands of 
 the people, whence they derive a force which in great measure 
 makes up for their other deficiencies, makes possible, and at 
 the same time explains, the statement, often made in apparent 
 disparagement, that there is no national system of education in 
 the United States. Such a law would be very generally 
 regarded as repugnant to one of the fundamental principles of 
 our government, the avowed right of which is to secure to the 
 people the largest amount of local discretion consistent with 
 the recognition of national obligations. And this principle of 
 local self-government upon which our political system is estab- 
 lished, presupposes a desire for education in the community to 
 whose action the control of such education is left. Its success, 
 therefore, will always depend upon the degree of enlightenment 
 of the district where it is applied. In a priest-ridden country a sys- 
 tem of education depending chiefly upon popular suffrage would 
 be a comparative failure. That which Massachusetts regards 
 as her chief blessing, New Mexico looks upon with indifference 
 or rejects with disdain. A striking illustration of the widely 
 different lights in which popular education may be regarded 
 
 (i) James Fraser, Report to the Schools Enquiry Commission, London, 1861, p. 14. 
 The same idea is expressed in De Tocqueville's great work, pp. 70, 77, ff.
 
 is contained in two replies sent, while America was yet a 
 dependency of Great Britain, from different colonies to ques- 
 tions put by the English Commissioners for Foreign Plantations. 
 The Governor of Virginia answered, " I thank God there are no 
 free schools or printing presses, and I hope we shall not have 
 these hundred years." The Governor of Connecticut replied, 
 "One-fourth the annual revenue of the colony is laid out in 
 maintaining free schools for the education of our children." (i) 
 These divergencies of opinion on the school question con- 
 tinued, though of course in a greatly modified form, until a 
 comparatively recent date. As long as slavery existed it was 
 impossible that the free school should find a permanent home 
 in the South ; and this should always be borne in mind in esti- 
 mating the comparative rapidity of educational progress in the 
 different sections of the country or their present relative con- 
 ditions, which, it may be remarked in passing, are still very 
 dissimilar. After the abolition of slavery, and as soon as the 
 national excitement caused by the Rebellion had begun to sub- 
 side, attention was repeatedly and urgently drawn to the lack 
 of uniformity in educational methods and consequent condi- 
 tion of popular intelligence in different parts of the Union ; and 
 the question of the desirability of enforcing, by Federal laws, a 
 compulsory system of common schools upon all the common- 
 wealths was thoroughly agitated, (a) Although the evils of 
 the then existing systen, or rather lack of system, were very 
 generally acknowledged and deplored, all proposals for pro- 
 viding means by which the commonwealths could be com- 
 pelled to take action in the matter met with disfavor and were 
 rejected on the score of their unconstitutional interference with 
 local State rights. But the propriety of the view that it was 
 both the right and the duty of the national government to ex- 
 tend its aid to the cause of education in the commonwealths, 
 was very generally admitted ; and the same spirit which had 
 led the people to look with favor upon the previous extensive 
 grants of land and money for this purpose by the National 
 
 (i.) Francis Adams, The Free School System of the United States, London, 1875. 
 
 (a.) The Congressional Records for the years following the Rebellion make very 
 frequent mention of the introduction of bills having this general end in view. A discus- 
 sion of the subject is contained in the Proceedings of the National Education Association 
 for 1871, p. 18, ff.
 
 Congress now caused them to give glad assent to the establish- 
 ment of the present Bureau of Education. 
 
 The following statement of the "theory of education in 
 this country," as enumerated by a committee of a congress of 
 State superintendents in 1872, is abridged from a publication of 
 the Department of the Interior of that year : The American 
 school system is an organic growth, having its origin in attempts 
 made to supply social and political needs. By the Constitution 
 of the United States no powers are vested in the central gov- 
 ernment of the nation, unless the same relate immediately to 
 the support and defence of the whole people, to their inter- 
 course with foreign powers, or to the subordination of the 
 several States composing the Union. Military education for 
 the army and navy only have been provided for directly by 
 the national government; and the further action in aid of 
 education has been limited to endowments in the form of land 
 grants to the several States, or portions thereof, for the purpose 
 of providing a fund for the support of common schools, or to 
 found colleges for the promotion of scientific, agricultural and 
 the mechanical arts. To the several States individually is left, 
 for the most part, the local administration of justice, as well as 
 the establishment of public agencies for the well-being of the 
 civil and social community in its industrial, economical, social 
 and spiritual aspects. The general form of the national gov- 
 ernment is largely copied in the civil organization of the par- 
 ticular States, and no powers or functions of an administrative 
 character are ordinarily exercised by the States, as a whole, 
 which concern only the particular interests and well-being of 
 the subordinate organizations or corporations into which the 
 State is divided for civil and municipal purposes ; but the State 
 usually vests these local powers and functions in the corpora- 
 tions themselves, such as counties, townships and cities. The 
 power of the State over these corporations is complete, but 
 they are usually allowed large legislative and administrative 
 powers of a local character, while the State ordinarily confines 
 its actions to matters in which the people of the whole State 
 are interested. Upon the several States individually, in 
 which is vested the power of defining the qualifications 
 of the electors who choose by ballot the representatives that 
 make and execute the laws of the land, rests the responsibility
 
 of making provision for the education of those charged with 
 the primary political functions. This responsibility has been 
 generally recognized in the establishment, by legislative enact- 
 ment, of free common schools, supported in part by State 
 school funds accumulated from the national grants of land and 
 from appropriations from the State revenue, and in part by 
 local taxation made upon those directly benefited by the 
 schools themselves. The national government and the State 
 governments regard education as a proper subject for legisla- 
 tion, on the ground of the necessity of educated intelligence 
 among a people that is to furnish law-making as well as law- 
 abiding citizens ; and the municipal or local corporations 
 regard education in its social and economic aspects as well as 
 in its more general political one. Thus the purposes of the 
 State and the idea of civil society conspire in the production of 
 the American system of public education, and to its mainten- 
 ance and support the property of the community is made to 
 contribute by taxation. 
 
 So much for the general principles which regulate the re- 
 lations of the national, State and local authorities in educational 
 matters ; let us now briefly consider what has so far been done 
 by the federal government in discharge of its share of the 
 national duty. The policy of extending aid to education by 
 grants from the general government was very early recognized, 
 in fact dates from a period anterior to the adoption of the 
 Federal Constitution. In 1785 Congress established an ordi- 
 nance for disposing of the lands in the Western Territory, which 
 contained the following provision: "There shall be reserved 
 the lot No. 1 6 of every township for the maintenance of public 
 schools within the said township (r.)" Two years later (July 
 13, 1787) the farmers "Ordinance for the government of the 
 United States northwest of the river Ohio " was adopted, which 
 contained the following clause (in Art. 3) : "Religion, morality 
 and knowledge being necessary to good government and the 
 happiness of mankind, schools and the means of education 
 shall be forever encouraged. The lot No. 16 in each township 
 or fractional part of a township is to be given perpetually for 
 the purposes named in said ordinance (of 1785) ; . . . not 
 
 (x.) Ordinance of May ao, 1785, Journals of Continental Congress IV, 520. 
 
 IO
 
 more than two complete townships to be given perpetually for 
 the purpose of an university . . . to be applied to the in- 
 tended object by the legislature of the State." The policy thus 
 inaugurated was not confined to the northwest territory, but 
 was fruitful of the most beneficent results to the whole nation. 
 In an act of March 3, 1803, providing for the disposal of lands 
 south of Tennesee, the reservation was made of lot No. 16 of 
 each township for the purposes of common school and university 
 education; and from that time until 1848 similar provisions 
 were made upon the organization of each new Territory. In 
 that year, upon the organization of Oregon Territory, the quan- 
 tity of land reserved for the benefit of the public schools was 
 doubled ; and to each new Territory organized, and State ad- 
 mitted, since then (except West Virginia) the lots No. 16 and 36 
 of every township (one-eighteenth of the entire area) have been 
 granted for public schools. Besides this, to each State admitted 
 into the Union since 1800 (except Maine, Texas and West Vir- 
 ginia) and the Territories of New Mexico, Utah and Washington, 
 have been granted two or more townships of land to endow a 
 university ; and Ohio, Florida, Wisconsin and Minnesota each 
 received considerably more than two townships. Then on July 
 2, 1862, the law granting lands to each State to endow colleges 
 of agriculture and the mechanic arts was enacted, and under this 
 law some 9,600,000 acres have been granted. (It may be re- 
 marked that Texas, on her admission, retained her title to her 
 public lands, and thus was excepted from the grants to endow 
 common schools and universities ; but shared the benefits of the 
 act endowing colleges of agriculture, receiving as her share 
 180,000 acres.) In addition to these general grants, there have 
 been special gifts to various institutions of learning in several 
 States and territories, amounting in all to 51,000 acres, and 
 200,000 acres to the State of Tennessee. Finally, by an act of 
 Sept. 4, 1841, 500,000 acres of land were to be granted for in- 
 ternal improvement to each of the following States : Alabama, 
 Arkansas, Illinois, Lousiana, Michigan, Mississipi, Missouri 
 and Ohio (i) ; and similar grants have been made to each State 
 subsequently admitted to the Union; most of which landhasbeen 
 set aside by the respective States for the benefit of free schools. 
 
 Dunlap's Digest, p. 988 ; Report of the Commissioner of Education, 1876, p. xii. 
 
 II
 
 Besides, thus encouraging the furtherance of education in the 
 States by grants of land to them, Congress at an early period 
 inaugurated the policy of giving a portion of the net proceeds 
 of the sales of public lands to the several States in which they 
 were situated. Thus, on March 3, 1803, an act was passed 
 grantiHg three per cent, of such net proceeds to the State of 
 Ohio for purposes of internal improvements, and similar grants 
 have since been made to each State admitted to the Union, 
 except that in many cases the money is, by express declaration, 
 intended to be devoted to the maintenance of schools and uni- 
 versities. Thus the terms of the grant to Illinois (approved 
 Dec. 12, 1820) enact as follows : "... The Secretary of the 
 Treasury shall from time to time and whenever the quarterly 
 accounts of public moneys of the several land offices shall be 
 settled, pay three per cent, of the net proceeds of the lands of 
 the United States lying within the State of Illinois, which since 
 Jan. i, 1819, have been or hereafter may be sold by the United 
 States, after deducting all expenses incidental to the same, to 
 such person or persons as may be authorized by the legislature 
 of the said State to receive the same, which sums thus paid 
 shall be applied to the encouragement of learning within said 
 State, &c." By a preceding act (April 18, 1818) it had been pro- 
 vided that one-sixth of the sums derived from the three per cent, 
 net proceeds of public land sales should be "exclusively devoted 
 to a college or university." The whole amount thus granted 
 to the States to be devoted (either by the terms of the grant or 
 by State constitutional provisions) makes up a total of over 
 $6,000,000. (i.) 
 
 Finally, in addition to these grants of land and proceeds 
 from the sale of lands, the general Government, under President 
 Jackson's administration, passed an act (June 23, 1836), dis- 
 tributing among the various States the surplus which remained 
 in the Treasury after the payment of the national debt contracted 
 by the Revolutionary War and the purchase of Louisiana ; and 
 a large part of this fund (which in all amounted to $28, 101,644.91) 
 was devoted by the States to educational purposes. (2.) 
 
 (i.) The several items constituting this sum were given in a paper read by Mr. John 
 Eatun before the Dept of Superintendence of the National Education Association on Dec. 
 n, 1877. Published by the Uept. as an appendix to Circular of Information No 2, 1879 
 
 (2 ) The distribution of this surplus is given in the above paper, and more iully by Mr. 
 Bourne in his History of the Surplus of 1837. New York, 1885. 
 
 12
 
 We have thus seen with what munificence Congress has 
 thought fit to extend its aid to the cause of education in the 
 several States ; it remains to consider what its means are for 
 insuring a proper application of its grants by exercising a con- 
 trol over the educational systems adopted by the State govern- 
 ments. And such a control, as might be expected from our 
 previous considerations, is found to be wholly wanting, the 
 whole tide of public sentiment in America being in favor of a 
 perfectly unfettered working of the individual State systems. 
 In fact it was not until 1867 that any department taking cog- 
 nizance of national education existed at Washington at all. In 
 that year the National Bureau of Education was established. 
 This department has no control whatever over the school 
 organization of the States. At the time of presenting the bill 
 for the formation of the Bureau, General Garfield, by whom it 
 was introduced, said "The genius of our Government does not 
 allow us to establish a compulsory system of education as is 
 done in some of the countries of Europe. There are States in 
 this Union which have adopted a compulsory system, and per- 
 haps that is well. It is for each State to determine, (i.)" Even 
 in the territories, where the legislative power of Congress is 
 supreme, the authority of the Bureau is confined to the collection 
 of information. Its function is not to direct in any way the 
 school affairs of the States, but to co-operate with them in the 
 work of administering systems of public instruction. The act 
 which created the Bureau defined the object it had to fulfill, and 
 its sphere of action has never been extended. It was founded 
 "for the purpose of collecting such statistics and facts as should 
 show the condition and progress of education in the several 
 States and Territories, and of diffusing such information respect- 
 ing the organization and management of school systems and 
 methods of teaching as should aid the people of the United 
 States in the establishment and maintenance of effective school- 
 systems and otherwise promote the cause of education." In 
 accordance with its duty as thus prescribed, the Bureau of 
 Education has confined itself to the issuing of an annual report 
 showing the condition of the several States as respects their 
 educational interests, and the occasional publication of a circu- 
 
 (i.) Garfield's bill was introduced on Feb. 14, 1866, and passed on March i, 1867.
 
 lar of information containing a detailed description of some 
 special feature. These reports and circulars are compiled and 
 edited with considerable care and skill, though for their informa- 
 tion the officers of the Bureau are dependent upon the courtesy 
 of the State Superintendents and others in charge of public and 
 private educational institutions, and cannot exercise any means 
 of compulsion in elicting from them facts for publication. Con- 
 cerning the extent to which Congress might go, and the means 
 it might adopt, to secure a proper application by the various 
 States of the funds which have been given them by the central 
 government, and the authority which Congress might assume 
 in the matter of centralizing the whole common-school system, 
 without over-stepping the limits imposed upon it by the Con- 
 stitution, there is much conflict of opinion. It will suffice to- 
 remark that as a matter of fact, under our present system, there 
 is no central control whatever, and that the duty and power of 
 the Bureau of Education is merely to exhort, but not direct, the 
 commonwealths to discharge their national obligation of giving 
 fit instruction to their citizens. 
 
 CHAPTER III. 
 EDUCATION IN THE COMMONWEALTHS. 
 
 It is not proposed to give in this chapter a complete de- 
 scription of the various and but slightly differing systems of 
 common-school education at present in force in the several 
 States ; such a description would, in fact, occupy several 
 hundred times the space allowed to the whole of the present 
 dissertation (i.) I shall, on the contrary, content myself with in- 
 dicating as briefly as possible the constitutional provisions 
 adopted by the various States concerning the matter of public 
 instruction, and give an outline of one typical system established 
 thereunder, thus indicating the zealous spirit of the States in 
 acknowledging the national duty of educating their citizens, and 
 the method which they have introduced to fulfill this duty. 
 
 The American school systems as they exist to-day are the 
 result of the independent action of forty-two States and six 
 
 (i.) Thus, for instance, the "Code of Public Institution, "of New York, alone fills nearly 
 eleven hundred closely printed octavo pages. 
 
 14
 
 Territories, each acting for itself. The various statutes of these 
 States and Territories relating- to common schools would, as I have 
 just said, fill volumes, and even the extracts from their constitu- 
 tions on this subject alone form a good sized pamphlet, (i) But 
 the result sought to be attained is the same in all. In some of the 
 older States it is the growth of over two hundred years of prac- 
 tical experience, and this experience has inured to the benefit 
 of the younger States. In many instances the new States have 
 undoubtedly improved upon the old, and the old States have 
 shown their ready appreciation by adopting the improvements. 
 Hence, instead of such great diversities as might naturally be 
 expected from the separate action of so many independent 
 authorities, it happens that upon all material points there is a 
 remarkable uniformity. As a general rule the people are slow 
 to allow or assent to changes in their constitutional provisions, 
 even when it is freely admitted that some changes are desirable. 
 In almost every legislative body there will be found a class of 
 statesmen who seem to have no doubt of their ability to im- 
 prove upon any existing law or system, and the people seem to 
 expect and submit to a certain degree of instability in the statute 
 law. But when the proposition is to change constitutional pro- 
 visions they must be satisfied that some urgent necessity de- 
 mands the change ere they will consent to remove the legal 
 restriction which bar any alterations of the fundamental law, 
 and, as a general rule, the change, when proposed must be ap- 
 proved by the popular vote before it can become effective. 
 Hence, when permanency is desired they secure it by incor- 
 porating the proposed ordinances in the constitution. 
 
 The doctrine lying at the foundation of the American school 
 system has been said to be expressed in the apothegm, "An 
 ignorant people may be governed, but only an educated people 
 can govern themselves." The doctrine which has been incor- 
 porated into many of the State constitutions, and is the govern- 
 ing principle in all, is that " Knowledge and learning as well as 
 virtue generally diffused throughout the community are essen- 
 tial to the preservation of a free government and of the rights 
 and liberties of the people." This expression is embodied in 
 eleven of the State constitutions, (2) which add that it shall 
 
 (i.) U. S. Bureau of Ed., Circ. of Inf. of July 7, 1875, 130 pp. 
 
 (2.) An abstract of these constitutional provisions is given in the Bureau of Educa- 
 tion's Circular of Information No. 3, 1880, and more fully in No. 7, 1875. 
 
 15
 
 therefore be the duty of the legislature to encourage the promo- 
 tion of intellectual, moral, social, scientific and agricultural 
 improvement ; while eight^say further that it shall be their duty 
 to encourage schools and means of education. By the coVisti- 
 tutions of all the States except New Hampshire and Delaware 
 the legislature are required to provide a system of free schools ; ( i ) 
 and most of the States have gone further than this and provided 
 for the setting apart of a special State school fund, the principal 
 of which is not to be diminished and the interest on which is 
 pledged for the support of schools and forbidden to be used for 
 any other purpose ; and in addition an annual State appropria- 
 tion, or the levy of a special State tax is made for the same pur- 
 pose. In many States it is required that at least one school be 
 supported in every district for a certain specified time in each 
 year as a mimimum limit ; thus in the three States (2) the 
 schools must be held at least six months, in three others, (3) 
 four months, and in seven others, (4) three months in each 
 year. In many of the constitutions there are also provisions 
 for the appointment of supervisory officers who are to have 
 charge of the educational interests of the State, and that of Vir- 
 ginia goes so far as substantially to establish the whole system, 
 leaving but little except details to be provided by the legislature. 
 Another general constitutional principle is that no public schools 
 shall be under the influence of, and no public moneys be given 
 to, any religious sects ; such is declared to be the law in thirteen 
 States, (5) while in six no sectarian instruction is to be permitted, 
 either directly or indirectly, in any of the State schools, (6) and 
 one (California) provides that no teacher or student shall ever be 
 required to attend or participate in any religious service what- 
 ever. In order to insure that the people shall take advantage of 
 the opportunities for instruction offered by the State, four con- 
 stitutions provide that the legislature may enact laws requiring 
 all children of a certain age to attend the free school for a cer- 
 tain length of time, (7) (as in Virginia) "such laws as shall not 
 
 (i.) Stimson's American Statute Law, p 10. 
 (2.) California, Nevada and South Carolina. 
 (3.) Missouri, Mississipi and South Carolina. 
 
 (4.) Michigan, Wisconsin, Iowa, Kansas, Colorado, Nebraska and Florida. 
 (5.) New Hampshire, Massachusetts, Pennsylvania, Illinois, Michigan, Wisconsin, 
 Minnesota, Texas, Missouri, California, Colorado," Alabama and Louisiana. 
 
 (6.) Wisconsin, Nebraska, California, Nevada, Colorado and South Carolina. 
 (7.) North Carolina, South Carolina, Colorado and Nevada. 
 
 16
 
 permit parents and guardians to allow their children to grow 
 up in ignorance and vagrancy." Higher education is also an 
 object of solictitude in most of the western and southern States ; 
 in eighteen of them the constitution provided for the establish- 
 ment of a State university, (i) while in Massachusetts^) and Con- 
 necticut (3) Harvard and Yale are especially recognized and 
 provided for in the same way. All the provisions for the pro- 
 motion of education in the various commonwealths, to which I 
 have just alluded are embodied in the respective State constitu- 
 tions. But it is not to be supposed that in those States whose 
 constitutions make no such explicit authorization of common 
 school systems, public sentiment is any the less in favor of 
 popular instruction, or that the absence of constitutional pro- 
 visions impliedly prohibit the legislature from establishing 
 means of universal education, or from compelling their citizens 
 to avail themselves of them. The fact that under our political 
 organization the State governments are,possessed^of every power 
 not expressly denied to them is too familiar to require mention, 
 and I need only allude to the existence of free schools in all the 
 States of the Union and to the absence of reported cases in 
 which the power of the legislature to established them or to en- 
 force attendance upon them has been called in question to put 
 at rest any doubt concerning the constitutionality of such en- 
 actments. 
 
 Just as in their recognition of the importance of popular 
 education, so also in their means of providing it, there is 
 throughout the States and Territories great unanimity. I shall, 
 as above stated, of course not attempt to give in this place a 
 description of these several school systems ; but a few general 
 remarks on the features common to all, or most of them, fol- 
 lowed by an outline sketch of one representative system, will, 
 I think, make their plan of organization clear. 
 
 In all the States and Territories except Alaska, which has 
 as yet, no systematic public school law, and New Mexico, 
 where the provisions are extremely crude, the general super- 
 vision of educational interests is vested in a State or Territorial 
 
 (i.) Michigan, Wisconsin, Iowa, Minnesota, Kansas, Nebraska, North Carolina, 
 Missouri, Texas, California, Oregon, Nevada, Colorado, Georgia, Alabama, Florida, 
 South Carolina and Louisiana. 
 
 (a.) Constitution 8, i. 
 
 (3 ) Constitution 5, i.
 
 Superintendent with or without a State board of education. 
 In some States, as Connecticut and Massachusetts, the sub- 
 stantial duties of the State superintendent are devolved upon the 
 secretary of the State board. These State boards are in some 
 cases merely trustees of the school fund, and have the care 
 and management of the school lands ;(i) in some their func- 
 tions are simply advisory upon matters referred to them by the 
 State superintendent or commissioner ; while in others they are 
 charged with the general supervision of the school system, 
 with power to make and enforce rules and regulations for the 
 government of the same. The State superintendents, with or 
 without the direction of the State boards are charged with the 
 general supervision of the educational interests of the State, 
 and with the administration of the school laws. They are, for 
 instance, to advise with and instruct the county superintend- 
 ents and other subordinate school officers, to propose forms 
 and blanks for reports and returns, examine into the workings 
 of the system, collect statistics and information, devise plans 
 for the improvement of the schools, and generally make them- 
 selves familiar with the wants and necessities of the system, 
 and draw up full reports for the governor or legislature. They 
 also have general supervision of the State normal schools and 
 institutes for the education and instruction of teachers ; and it 
 is their duty to apportion the State school moneys to the coun- 
 ties or towns in the way provided by law. In all the States 
 outside of New England, (except Michigan and Ohio, which 
 seem to have adopted substantially the New England School 
 System, and Delaware, where there is no provision for any 
 officers between the State superintendent and the district 
 boards), there are county superintendents or county boards, or 
 both ; in Louisiana the parish boards corresponding to what 
 are in other States the county boards. These county boards or 
 county superintendents generally occupy the same position 
 .with reference to the schools in the county, as the State super- 
 intendent does to those of the State, but subject to the State 
 superintendent. (4) Under the New England system, the town 
 
 (i.) As in Nebraska. See Constitution, Art 8, i. 
 
 (2 ) As in Georgia. See Code, Part I, title XIII, Chap. V, 1246. 
 
 (3.) See Code of Virginia, Chap. LXVI, 5 1433. 
 
 (4 ) See Code of Tennessee, Title 7, Chap. Ill, Art. 3, g 1x81. 
 
 18
 
 school committees or supervisors perform the duties in their 
 several towns, which in the States which have adopted the 
 county organization, are performed by the county commis- 
 sioner. When the county is made the source of power, it is 
 generally made the duty of the county school commissioner to 
 divide the territory into convenient sub-districts, and establish 
 in each a sufficient number of schools for the accommodation 
 of all children of school age. In these States the duty of pro- 
 viding for schools beyond the State provision is imposed by 
 law upon the county, or the county and school district, while 
 in New England, and some of the other States, the town or 
 township is the head, and upon it is imposed the duty of pro- 
 viding for the support of the schools. The school district is a 
 territorial division of a county or town, which is recognized 
 in all the States except Texas, where it seems probable that it 
 may before long be introduced, (i) Under the laws of the 
 New England States, while the towns were to a certain extent 
 required to provide for the support of the schools, they were 
 also to be divided into school districts, the extent and bound- 
 aries of which were to be determined by the town. The dis- 
 tricts so formed were, for school purposes, independent muni- 
 cipal corporations. The town was required to levy a tax for 
 the support of the schools, which was to be distributed to the 
 several districts as provided by law or as it might direct. 
 Aside from this, the district itself might vote such additional 
 tax as it saw fit, for the same purpose. It provided its school 
 houses, fixed their location, determined the time when the 
 schools should open and close, and managed its own affairs 
 through its own officers. It was bound to keep up its schools 
 for a certain length of time under competent teachers, and the 
 town committee determined who were competent teachers and 
 had a general supervision of the schools. If the district neg- 
 lected or refused to perform its statutory duties, the town or 
 its committee might interfere, employ teachers, and establish 
 and keep up the schools, and charge the expenses to the town 
 or district. (2) The district system is, however, rapidly losing 
 popularity, as its extreme application of the principle of local 
 
 (i.) See Report of Superintendent of Public Instruction for 1887-1889, (Texas). 
 
 (2.) Thus in New Hampshire the town had charge of the schools by act of the Gen- 
 eral Council of the Province, 1719, and the supervision over them was in the hands of the 
 selectmen.
 
 self-government has been found prejudicial to the best educa- 
 tional interests of the State. Hence in several States, laws 
 have been passed authorizing the towns to abolish the dis- 
 trict system and assume control of the schools, (i) for which 
 purpose they therefore themselves became the school districts; 
 and in Massachusetts the town system has been substituted 
 for the old system throughout the State. (2) In most of the 
 States outside of New England the law makes the city, borough, 
 or township, the school district ; and in States where the 
 county is to be divided, the formation of districts too small in 
 means or population to be effective, is sought to be avoided 
 by forbidding the laying off of any district unless it contains 
 a certain minimum number of children of school age. (3) 
 
 So much for the general features of the American educa- 
 tional system. As an example of the way in which it is worked 
 out, somewhat more in detail, I shall select the organization of 
 public instruction in New York ; both because that is the largest 
 and most influential State in the Union, and because its system 
 of common schools appears to be fairly representative of the 
 majority of the others. (4.) 
 
 In New York, the officers having charge of the public 
 schools are the Superintendent of Public Instruction, the School 
 Commissioners, and the District Trustees. The superintendent 
 is elected for three years on joint ballot of both branches of the 
 legislature. (5) He has the general supervision of all the 
 schools in the State ; apportions the school money ; superin- 
 tends the appointments by the commissioners ; and sees that it 
 is paid by the supervisors and expended by the trustees in the 
 manner provided by law. (6) He hears and decides all appeals 
 regarding school matters., and his decision is final. He is 
 charged with the control and management of the so-called 
 teachers' institutes, (7) and makes rules concerning district 
 
 (i.) The town has power to abolish the district system. See Howard's Local Consti- 
 tutional History of the United States, Vol I., p. 235 
 
 (a ) Public Statutes, chap. 44. 
 
 (3.) See Boone's History of Education in the United States, p. 96, for a sketch of the 
 district system and its faults. 
 
 (4 ) The following references are to the titles and sections of the Consolidated School 
 Act of 1864, as amended and published in the Code of Public Instruction of 1887. 
 
 (5.) Tit i, .. 
 
 (6 ) Tit. i, t 13-14. He has power to dismiss school commissioners for neglect of 
 duty. 
 
 (7) Teachers' institutes are "assemblages of teachers of public schools, called to- 
 gether temporarily for the purpose of receiving professional instruction under the direc- 
 tion of the state school authorities." 
 
 20
 
 libraries. He receives and compiles reports from all the school 
 districts, and sends in an annual report to the legislature, (i) Fjj 
 The School Commissioners are elected for three years by 
 the people of several school commissioner districts. (2) It is 
 their duty to see that the boundaries of districts are correctly 
 described; to visit and examine the schools; to advise with 
 and counsel the trustees ; to look after the condition of the 
 school-houses, and condemn such as are unfit for use ; to recom- 
 mend studies and text-books ; to examine and license teachers ; 
 to examine charges against teachers, and, on sufficient proof, 
 to annul their certificates ; and, when required by the superin- 
 tendent, to take and report testimony in cases of appeal. (3) 
 
 The District Trustees, one or three in number in each dis- 
 trict, are elected by the inhabitants. (4) The term of office of a 
 sole trustee is one year ; that of each of a board of three trustees, 
 three years, one being elected annually. (5) Theffunctions of 
 these officers are to make out tax lists and warrants ;| to pur- 
 chase or lease sites, to build or hire school-houses, and to have 
 the custody of all district property ; to employ and pay teachers ; 
 and to report annually to the school commissioners, school 
 statistics and such other information as may be required. (6) 
 
 The School District is the smallest territorial subdivision of 
 the State. (7) It is formed by the school commissioner, who 
 makes an order defining its boundaries, and files it in the office 
 of the clerk of the town in which the district is situated. (8) 
 He may also change the limits of districts by a similar order. 
 A joint district is one that lies partly in two or more school 
 commissioners' districts, and it may lie partly in two or moie 
 counties. (9) There are, besides, so-called Union Free School 
 Districts, formed under the law 1853, authorizing the inhabi- 
 tants to organize a school in a district comprising more terri- 
 tory and population, and possessing greater powers, than an 
 ordinary district. (10) In addition to these, over a hundred dis- 
 
 (i.) Tit. i, 14. 
 
 (2.) Tit 2, 3. 
 
 (3.) Tit. 2, 13-15. 
 
 (4.) Tit. 7, 27. 
 
 (5.) Tit. 7, 25. 
 
 (6.) Tit. 7, I 49. 
 
 (7.) There were in 1888, 11,245 school districts in this State. 
 
 (8.) Tit. 6, i. 
 
 (9.) Tit. 6, S i, see 2. 
 
 (10.) Title 9. 
 
 21
 
 tricts have been formed by individual acts of the legislature, 
 granting special powers and privileges, (i) The inhabitants, 
 at the annual district meeting, have power to elect a chairman, 
 one or three trustees, a district clerk, a collector, and a libra- 
 rian, to designate a site for a school house, to vote taxes to 
 pay for a site, to build and repair school-houses, and to furnish 
 them with fuel and appendages, and also to make up deficien- 
 cies for teacher's wages. (2) They have also power to vote 
 certain taxes not exceeding specified sums for particular pur- 
 poses, and any sum necessary to insure the district property 
 and pay the costs and reasonable expenses of suits at law in 
 which the district may be interested. The librarian serves one 
 year, and has (of course) charge of the district library. (3) The 
 collector serves for one year, giving a bond for the faithful dis- 
 charge of his duty in collecting the taxes and holding them 
 subject to the order of the trustees. (4) The clerk of the dis- 
 trict also holds office for one year, and it is his duty to keep a 
 record of the district meetings ; to notify persons elected as 
 district officers ; to report to the town clerk the names and ad- 
 dresses of district officers ; to give the trustees notice of every 
 resignation accepted by the supervisor ; and to keep and pre- 
 serve all records, books and papers belonging to the office. (5) 
 The town clerk is required to keep in his office all books, &c., 
 relating to to the school ; to record the certificate of appor- 
 tionment of school moneys, and to notify the trustees of such 
 certified apportionments ; to obtain from trustees their annual 
 reports ; to provide them with books and blanks ; to file and 
 record the final accounts of supervisors ; to file and keep the 
 description of district boundaries ; and, when required, to take 
 part in the formation or alteration of a school district. (6) 
 
 The school moneys apportioned to the several towns are 
 paid by the county treasurer to the supervisor, after having 
 been received by him from the State treasurer on the warrant 
 of the superintendent of public instruction. (7) These moneys are 
 
 (i.) See N. Y. Code of Public Instruction, pp. 795. ff. 
 
 (2.) Tit. 7, 815- 
 
 (3.) Tit 7, 5 38. 
 
 (4.) Tit 7. 16. 
 
 (5 ) Tit. 7 . I 37. 
 
 (6.) Tit. 5. 8 
 
 (7.) Tit. 3. 8 3- 
 
 22
 
 derived from the following sources : i. The income of the 
 common school fund, which in 1888 amounted to $170,000. 
 
 2. The amount the legislature may annually set apart from the 
 income of the United States deposit fund (in 1888, $75,000). 
 
 3. A State tax, similar to the general property tax. (i) These 
 moneys constitute the Free School Fund of the State, and in 
 addition to its share of this fund each locality derives school 
 moneys from, 4. District, village and city taxation. 5. The 
 income from various local funds. The State Free School 
 Funds are distributed in substantially the following manner : (2) 
 The superintendent of public instruction, after ascertaining the 
 amounts to be apportioned, sets apart from the income of the 
 United States deposit fund : i. The amount necessary to pay 
 the salaries of the school commissioners. 2. To each city 
 having a superintendent of common schools, or clerk of the 
 board of education performing the duty of superintendent, the 
 sum of $800, and in case any city is entitled to more than one 
 member in the State assembly, $500 for each additional mem- 
 ber for the free schools of the city. 3. For libraries, such sums 
 as the legislature may appropriate. 4. He then sets apart from 
 the free school fund, $4,000 for a contingent fund, and 5. A 
 sum for the Indian schools, the same in proportion to their num- 
 bers as is apportioned to the regular schools. 6. He 
 next ascertains the total so apportioned, and deducts it from 
 the total school moneys appropriated, and divides the remainder 
 into two parts, one of which, 7. Is divided by the whole num- 
 ber of qualified teachers in the State employed at least twenty- 
 eight weeks a year, to ascertain the "district quota," and is 
 distributed among the districts, one quota for each such teacher ; 
 and 8. the other of which, and also the library moneys, are 
 divided among the counties according to their population. 
 Finally, 9. He apportions an equitable sum for each separate 
 neighborhood, which has duly reported to him, from the con- 
 tingent fund. He then certifies the amount apportioned to 
 each city or county to the city or county treasurer ; (3) and 
 the school commissioners having received such certificates 
 meet, at the court-house in their respective counties, on the 
 
 (x.) This rate is frequently changed. In 1888 it was only one mill on the dollar, 
 (a.) Title 3, 
 (3.) Tit. 3, I 13.
 
 third Tuesday in March in each year, and apportion the money 
 to the districts as follows : (i) i. They must set apart to each 
 district the district quotas allowed by the State superintendent; 
 2. They set apart any money assigned to districts as equitable 
 allowances ; 3. They divide the remainder into two equal 
 parts, one of which they distribute among the districts in pro- 
 portion to the number of children of school age residing in 
 each, and the other according to the average daily attendance 
 of resident pupils; and 4. they apportion the library money 
 also according to the number of children of school age. They 
 then sign their apportionment in duplicate, sending one copy 
 to the superintendent of public instruction and delivering the 
 other to the county treasurer ; and also certify to each super- 
 visor the amount apportioned to each district in his town, 
 designating the library money and that for teachers' wages. 
 
 The above sketch of the New York system of public in- 
 struction, its organization, and the sources and disposition of 
 its income, omitting all consideration of features due to circum- 
 stances peculiar to this State, may fairly be taken as an illus- 
 tration of the common school systems throughout the country ; 
 for, as stated before, while differing somewhat in their nomen- 
 clature and their details, their objects and in a general way 
 their means of attaining them, are on the whole essentially 
 similar. (2) One important divergence from, or rather further 
 development of, the usual system of public instruction, is, how- 
 ever, to be noted. I refer to the plan of providing, in addition 
 to the ordinary common schools for imparting mere primary 
 instruction, a number of free schools or academies for secondary 
 education, carefully graded, and regarded on the one hand as 
 complimentary to the primary schools, and on the other as 
 introductory to the courses of superior and professional instruc- 
 tion offered in the State University. This system, which has 
 never been regarded with much favor in the Eastern States, 
 is, while undeniably beneficial to the cause of scholarship and 
 sound learning, as is evidenced by its results in those countries 
 
 (i.) Tit. 3, 27. 
 
 (2.) The chief difference to be noticed in the plans of organization of the various 
 school systems is the difference in the amount of control exercised by the central authority. 
 As extremes, illustrating the two methods, Virginia and New Hampshire may be taken ; 
 the former having an almost completely centralized system, the latter leaving all control to 
 the local authorities. See Code of Virginia, Section 1433; and General Laws of New 
 Hampshire, Chap. 92.
 
 of Europe where it has been most consistently applied, at the 
 same time open to the grave charge of being, as it is somewhat 
 vaguely expressed, "unconstitutional," or, more correctly, 
 opposed to the spirit of our institutions. It is argued, and with 
 some show of reason, that although a common school educa- 
 tion is essential to the self-preservation of a democratic com- 
 munity, a college education is to be regarded as an intellectual 
 luxury, to be paid for by the person desiring to obtain it, and 
 not properly chargeable upon the people at large. This is the 
 Eastern way of looking at it. In the West it is frequently held 
 that whatever tends to further the advancement of science and 
 the arts, even though the cultivation merely of a chosen few, 
 tends indirectly but necessarily to better the community at 
 large, and is thus a justifiable object of expenditure of the 
 public money. The most signal instance of the systematic and 
 apparently successful working-out of this high-school and uni- 
 versity plan is to be found in Michigan, where it has been in 
 operation for many years ; and the application of the doctrine 
 seems to be growing in extent throughout the Western States. 
 
 CHAPTER IV. 
 
 THE LEGAL RELATIONS OF THE PUBLIC SCHOOLS. 
 
 It must not be presumed from the heading of the present 
 chapter, that it is intended to give anything like a complete 
 exposition of the legal relations existing between the common- 
 schools and the community. The immense number of these 
 apparently humble, but all-important institutions ; the great 
 diversity of opinions necessarily subsisting among the widely 
 different classes whose interests they must at the same time be 
 made to serve ; and the continually reviving suspicion that they 
 are being used for sinister or party purposes all conspire to 
 render them a perpetual source of contention and a fruitful sub- 
 ject of litigation. The cases in the courts of last resort in the 
 several States in which judicial interference has been invoked 
 to put at rest disputes concerning questions involving public 
 school matters, as abstracted in the United States Digest, (up to
 
 and including 1887), number no less than one thousand six 
 hundred and forty three (1643) ; and their legal status as thus 
 determined is as full of complexity as it is void of interest. The 
 circumstance that the common-school systems, and the powers, 
 duties and liabilities of their officers are almost entirely regu- 
 lated by express legislative, and often merely local action, or 
 left to uncontrolled administrative ordinance, of course makes 
 the several States quite independent of one another in point of 
 school-law, and hence there are but few questions a judicial 
 decision concerning which in one State could be confidently 
 quoted, even as a reference, in the courts of another. There is, 
 however, one of these questions which, both from its very 
 general application and its extreme importance, bears directly 
 on the subject of this essay, and to a brief consideration of which, 
 as illustrated by a few reported cases, I shall devote the present 
 chapter ; I refer to the question concerning the constitutionality 
 of legislative acts establishing and regulating systems of com- 
 mon schools. 
 
 It seems somewhat strange at first sight that, in view of the 
 fact that the universal sentiment in civilized communities is in 
 favor of regarding education, at least in its elements, as an un- 
 questionably proper object of government expenditure, and 
 that so many of our State constitutions have emphatically recog- 
 nized the correctness of this view, there should still appear to 
 be some doubt as to the constitutionality of legislative acts 
 establishing a system of common-schools in those of the States 
 where no such express provision exists. It is of course unques- 
 tioned that under the American system of government, the 
 people are recognized as possessing in their primary organized 
 capacity the absolute and complete power of legislation as fully 
 and to the same extent as belongs to every uncontrolled sover- 
 eignty ; that in the organization of the Federal and State systems 
 of government, they have conferred upon the former, by the 
 constitution of the United States, exclusive legislative power in 
 respect to certain matters and prohibited its exercise in respect to 
 others, and that, save as thus conferred or forbidden, they have 
 in this condition entrusted the legislative departments which 
 they have created, with the whole power of making laws which 
 they originally possessed, subject only to such restrictions and 
 limitations as they have prescribed in the State constitutions. 
 
 26
 
 But these constitutions usually declare, expressly or by implica- 
 tion, that the citizens under them shall in no case be deprived 
 of their property (as by taxation), except for purely public pur- 
 poses ; and the question then arises as to whether the mainten- 
 ance of a system of government schools for free popular 
 instruction is so useful or necessary for the community as really 
 to be a public purpose justifying the levy of a general tax. 
 This question was discussed at a comparatively recent date in 
 Maine, when the legislature, before levying a tax for common 
 schools, inquired of the Supreme Court concerning its constitu- 
 tionality. The court decided that a clause in the State consti- 
 tution empowering the legislature to make "all reasonable laws 
 and regulations for the benefit of the people of the State, not 
 repugnant to the constitution of this State nor to that of the 
 United States," included the power to levy a school-tax, for 
 "education being of benefit to the people, and taxation being 
 incidental and essential to its promotion, the mill-tax, being for 
 educational purposes, must be regarded as constitutional unless 
 in some other portions of the constitution there be found a 
 clause restricting or forbidding the raising of money by legisla- 
 tive action, for educational purposes, thereby limiting the power 
 naturally inferable from i, which has already been quoted." 
 Nor can the amount of this tax be in any way limited by the 
 courts, "for it is not for the judicial department to determine 
 when legitimate taxation ends, and spoliation by excessive tax- 
 ation begins?" (Opinion of the Justices, 68 Me. 592). 
 
 And it has further been decided, (Stuart vs. District of 
 Kalamazoo, 30 Mich., 69), that this power extends even to the 
 levying of taxes for the support of high schools for instruction, 
 (among other things), in ancient and modern languages ; and 
 that the school officers need not restrict themselves in their 
 expenditures to such subjects of study as are ordinarily under- 
 stood as pertaining to a common school education. In giving 
 the opinion of the court, Judge Cooley said : "Neither in our 
 State policy, in our constitution, nor in our laws, do we find 
 the primary school districts restricted in the branches of 
 knowledge which their officers may cause to be taught, or the 
 grade of instruction that may be given, if their voters consent 
 in regular form to bear the expense and raise the taxes for the 
 purpose." So too in an Illinois case (Richards vs. Raymond, 
 
 27
 
 92 111., 612), the court remarked: "While the constitution has 
 not defined what a good common school education is, and has 
 failed to prescribe a limit, it is no part of the duty of the 
 courts of the state to declare by judicial construction, what 
 particular branches of study shall constitute a good common 
 school education." Upon the same principles the legislature 
 or the executive may, when the state constitution makes pro- 
 vision for free schools, establish a system of normal schools, 
 for it has been held (Briggsr>s. Johnson County, 4 Dillion, 148), 
 that "the [State] constitution having vested all legislative 
 power not prohibited by the Constitution of the United States 
 in the General Assembly, the establishing of normal or other 
 schools than those named, it is fair to presume, was intended 
 to be left with the legislature. That normal schools are pub- 
 lic institutions, useful and necessary for the full development 
 of free schools, is not disputed. " The power of the State 
 government when not limited by the constitution, is thus 
 seen to be very great in the matter of public instruction. For 
 the same reasons that the legislature has power to establish a 
 school system, it also has power to abolish or otherwise 
 change it, and the inhabitants of the school districts have no 
 rights in the existence nor in any of the corporate functions of 
 the district, which can be regarded as vested legal rights, or 
 which can in any way be set up as beyond legislative control. 
 This question arose in Massachusetts in consequence of the 
 enactment of statutes abolishing school districts and estab- 
 lishing town systems, (to which I have referred above, supra 
 p. 20,) and the court held that such statutes were not uncon- 
 stitutional. For it was considered that, although before the 
 enactment of these laws, school districts were indeed quasi- 
 corporations, with the power to hold property, to raise money 
 by taxation for the support of schools, and with certain defined 
 public duties ; still they were public and political as dis- 
 tinguished from private corporations, and their rights were 
 held at the will of the legislature, to be modified or abolished 
 as the public wellfare might require. Hence the property held 
 by them for public use, was subject to such disposition in the 
 promotion of the objects for which it was held, as the supreme 
 legislative power might see fit to make. The laws in question 
 did nothing more ; they provided merely for the transfer of 
 
 28
 
 public property, and of a public duty connected with its use 
 from one public corporation to another. (Rawson vs. Spencer, 
 113 Mass., 40.) 
 
 But though the legislature or its agents thus have power 
 under the constitution to establish or abolish school districts, 
 and to empower them to raise money by taxation, the courts 
 will hold them very strictly to applying the funds so raised for 
 the exact purpose for which they were intended. So if a fund 
 is provided by the constitution for free public schools, it can 
 only be applied to such schools as are within the uniform 
 system required, free from religious or sectarian control, and 
 open to all children of school age, (Otkin vs. Lamkin, 56 
 Miss., 758 ; and in a case in Massachusetts, under a constitu- 
 tional provision requiring moneys raised for public schools to 
 be applied only to those under the charge of the public 
 authorities, it was denied that a town could appropriate 
 moneys raised for public schools to the support of a school 
 founded by a bequest under which the management of the 
 school was vested in trustees who, though most of them 
 elected by the town, must be connected with certain religious 
 societies. (Jenkins vs. Andover, 103 Mass., 94.) 
 
 Closely connected with this subject is one which has, 
 next to the religious disputes, been a source of more frequent 
 and more bitter controversy than any other of those concern- 
 ing public schools; that is to say, the constitutionality of race 
 distinctions in the extension of common school privileges. 
 This question did not, of course, present itself for judicial con- 
 sideration until after the passage of the Fourteenth Amendment; 
 but during the years immediately following the rebellion, it 
 was very thoroughly discussed, and definitely settled. The 
 numerous decisions relative to the school rights of colored 
 children, appear to justify the following propositions. In the 
 first place, no person can be deprived of equal educational 
 privileges with the whites, merely because he is colored. It 
 has been held that the exclusion of colored children from 
 schools where white children attend as pupils, cannot be sup- 
 ported except where separate schools are actually maintained 
 for the education of colored children, and that unless such 
 schools be, in fact, maintained, all children of the school dis- 
 trict, whether white or colored, have an equal right to become 
 
 29
 
 pupils at any common school organized under the laws of the 
 state; (Ward vs. Flood, 48 Cal., 56;) and, as was remarked 
 by Baxter, C. J., in his charge to the jury in the case of The 
 United States vs. Buntin, 10 Fed. Rep., 735, "if you find tha 
 the said colored school was so remote from the prosecuting 
 witnesse's residence, that he could not attend it without going 
 an unreasonable and oppressive distance ; that he was thus 
 placed at a material disadvantage with his white neighbors ; 
 that the school did not offer substantially the same facilities 
 and educational advantages that were offered in the school 
 established for the white children, and from which he had 
 been excluded, then, and in that event, he was entitled to ad- 
 mission in said last named school, and his exclusion therefrom 
 was a denial and a deprivation of his constitutional right." 
 
 But, secondly, it has been decided that such separate 
 schools for the colored race are not forbidden by the Fourteenth 
 Amendment ; and that laws passed to establish such schools 
 are not unconstitutional ; for they do not attempt to deprive 
 colored persons of their rights, but on the contrary expressly 
 recognize their right to equal educational advantages, and 
 only regulate the mode and manner in which the right shall 
 be enjoyed. (Slate z>s. McCann, 21 Ohio St., 210.) Thus in 
 the case of Cory vs. Carter, 48 Ind , 362, the court declared 
 that " the classification of scholars on the basis of race or 
 color, and their education in separate schools, involve ques- 
 tions of domestic policy which are within the legislative discre- 
 tion and control, and do not amount to an exclusion of either 
 class. In other words, the placing of the white children of the 
 state in one class, and the negro children of the state in another 
 class, and requiring these classes to be taught separately, pro- 
 vision being made for the same branches, according to age, 
 capacity or advancement, with capable teachers, and to the 
 extent of their pro rata share in the school revenue, does not 
 amount to a denial of equal privileges to either, or conflict with 
 the open character of the system required by the constitution. 
 The system would be equally open to all. The tuition would 
 be free. The privileges of the schools would be denied to 
 none." It is, however, thirdly, to be remarked, that this 
 power of separating the races is vested exclusively in the State 
 Legislature, and that unless some statute can be found authoriz-
 
 ing the establishment of special schools for colored children, no 
 such authority exists. This was held in the case of Clark vs. 
 The Board of Directors, 24 Iowa, 266, the substance of the 
 decision in which is, that, as all the youth are equal before the 
 law, and there is no discretion vested in the board of directors 
 or elsewhere to disturb that equality, such board, while it may 
 enforce uniform restrictions as to residence, age, etc., has no 
 power to deny a youth admission to any particular school 
 because of nationality or color. 
 
 So much for the decisions of the courts concerning the 
 leading questions on the constitutionality of legislative enact- 
 ments relative to the establishment of common schools, an out- 
 line of the general trend of which is, I hope, intelligibly indi- 
 cated in the foregoing sketch. In the following chapter I shall 
 endeavor to exhibit with more completeness, the legal status, 
 powers, and duties of our higher institutions of learning, 
 private as well as public. 
 
 CHAPTER V. 
 THE LEGAL RELATIONS OF THE AMERICAN COLLEGE. 
 
 In considering the legal relations of our American institu- 
 tions of superior instruction, we are confronted at the outset 
 with a two-fold difficulty : in the first place the college may be 
 both instituted and controlled by the State in such a way as to 
 make it a mere department or instrument of government, and 
 thus, like the other departments, have its rights, duties and 
 functions laid down in the act creating it, or it may be, as is 
 more frequently the case, a private enterprise, subject to no 
 control whatever, save that general restraint which is exercised 
 .over all persons, natural or legal, in protection of the private 
 rights of society. In either case the interference of the courts 
 can only be called into requisition under extraordinary circum- 
 stances, and the consequent infrequency of their action in mat- 
 ters pertaining to college management causes the number of 
 reported cases on the subject, which constitute, of course, the 
 only authentic literature concerning it to be very unsatisfactorily
 
 scanty. This evil is further increased, or perhaps rather caused 
 by the fact that our colleges have not, as have the analogous 
 institutions both in England and on the Continent, any definitely 
 fixed position in the mind of the community ; they play no such 
 determined part in our popular national life or, it is to be feared, 
 in the development of our civilization. They have no prescrip- 
 tive rights over the people, nor can the people make any claims 
 upon them, other than those of ordinary contract. Hence the 
 colleges are left largely to themselves, and govern themselves 
 as they see fit ; and no matter howbadly this, their self-govern- 
 ment, may be managed, looked at from the standpoint of the 
 public weal, still no person not showing direct personal damage 
 and injury from such misdirection of powers or misappropriation 
 of funds, would think of calling them to account or would have 
 the assistance of the courts in case he attempted to do so. 
 Neither, on the other hand, would the colleges venture to assume 
 any prerogative rights in virtue of their collegiate character in 
 imitation of their European prototypes, nor could such pretended 
 privileges, in case of their possible assertion, be enforced. An 
 examination of our educational system shows that in nearly 
 all cases, the colleges are, as above intimated, either a superior 
 branch of the general system of State instruction, or else con- 
 nected with, and subject to the control of the State only in the 
 way in which all other private corporations are, namely, by the 
 fact that they have received from the State a charter of incor- 
 poration to whose provisions they are held more or less strictly 
 to conform. The only notable exception to this rule, the only 
 instance in which a State exercises (or professes to exercise) a 
 general, indirect control over incorporated educational institu- 
 tions of a private character, is to be found in the State of New 
 York, of whose Board of Regents I shall hereafter speak more 
 at length (infra p. 35.) 
 
 A more complete understanding of the nature of our college 
 corporations, which I shall attempt to illustrate by a commentary 
 on the cases preserved in the reports of the courts of last resort 
 in the various States, will be obtained by a brief consideration 
 of the organization of two colleges representative of the two 
 classes into which, as I have above stated, nearly all institutions 
 of this character may be divided. As an example of the cor- 
 porations of a purely private character I have selected Dart-
 
 mouth College, and as an example of those cases in which the 
 college is looked upon as a public corporation or instrument of 
 government, I have taken the University of Missouri ; the first 
 because it is a fair typical specimen of the American college as 
 ordinarily understood and also because it was the subject of a 
 famous law suit which definitely established the legal rights of 
 such institutions as against the State ; the second because it is 
 a representative instance of the "State University." 
 
 The following was the method of organization of Dartmouth ; 
 and the same description, mutatis mutandis, may be said to be 
 true of by far the greater number of the three or four hundred 
 colleges now existing in this county, (i) A public-spirited in- 
 dividual (in the present instance a certain L. Wheelock) being 
 charitably disposed and of the opinion that it was expedient for 
 the advancement of learning that another college be established 
 and endowed, both himself gave, and by his exertions and 
 examples induced others to give, sums of money for beginning 
 and carrying on the undertaking. These funds were put in the 
 hands of trustees, to whom were given certain directions as to 
 the disposal of them, whereupon these trustees, finding it neces- 
 sary for the perpetuation of the trust to become a body corpor- 
 ate, applied to the legislature for a charter of incorporation. 
 The charter was of course readily granted, and by its acceptance 
 the college sprang into being. The charter determined the 
 number and manner of appointing trustees, and enumerated 
 their powers, enabling them to sue and be sued by a corporate 
 name, to buy and hold lands for college purposes, to receive 
 and hold property not exceeding a certain amount, to appoint 
 and pay professors and instructors, to establish by-laws and 
 ordinances, to have a common seal, to grant such degrees as 
 were usually granted in Great Britain, &c., &c. Thus the college 
 was instituted, and under this charter, which, it will be observed, 
 does not reserve to the State any right of supervision, the trus- 
 tees proceeded to act as best they saw fit, without the possibility 
 of legal interference to control them in doing as they pleased 
 on the score of "promoting learning." To what an extent this 
 freedom may, in the opinion of the courts, be carried, I will 
 presently (infra p. 44,) cite a reported case to show. Such, or 
 
 (i ) See sketch of the early history of the college in Dartmouth College -vs. Woodward, 
 4 Wheaton, 518. 
 
 33
 
 similar, is the origin, and consequent independence of most 
 collegiate institutions in this country. 
 
 Of an entirely different nature are the so-called State Uni- 
 versities, of which the University of Missouri may be taken as 
 a typical example, (i) Here the college is not indebted for its 
 birth or its continued existence to private donations. It is 
 established by a legislative act, and the expenses of its erection 
 and maintenance are defrayed from the public funds. It is 
 considered to be a branch of the State government, just as are 
 the public schools. It is declared to be a body politic, whose 
 government is vested in a board of nine curators, appointed by 
 the governor, with the consent of the senate. This board has 
 power to appoint and remove, at its discretion, the president, 
 professors and tutors of the university, and is obliged to sub- 
 mit regular reports to the legislature. 
 
 Institutions of this nature are thus seen to be mere instru- 
 ments of government, and their officers are, like other public 
 officials, controllable only by the regular writs or by special 
 actions for damages. (See Head vs. Curators of the University 
 of Missouri, 47 Mo., 220.) The circumstance that they are 
 institutions of learning does not endow them with any peculiar 
 features. 
 
 It is true that there are, between these two extremes of the 
 scale, some institutions which, though of an essentially private 
 character, are yet so organized as to be subject more or less 
 to State control ; but when such a relation exists, the connec- 
 tion is usually merely nominal, or, if the claims of the State 
 are sought to be enforced, there result political jealousy and 
 general dissatisfaction. Of such a character was, until 1866, 
 the organization of Harvard University. The State, claiming 
 as founder and patron, regarded the college as a State institu- 
 tion, over which it had a right to exercise a direct control 
 through the legislature by its authority in the membership and 
 the election of a so-called board of overseers ; but the contro- 
 versies and embarrassment attendant upon legislative action 
 proved so prejudical to the best interests of the college that this 
 plan had to be materially modified. 
 
 Before proceeding to a consideration of the legal status of 
 our colleges in so far as it has been made a subject of judicial 
 
 (i.) See Missouri Revised Statutes, Chap. 156. 
 
 34
 
 decisions, it remains to give some account of an institution to 
 which I have already referred, and which is quite peculiar to 
 this State I mean the ' ' Regents of the University of the State 
 of New York. " This institution is supposed to exercise a con- 
 trol over all the incorporated institutions of secondary and 
 superior instruction in this State, and although its efficiency is, 
 in my opinion, perhaps somewhat overrated, still, as it has been 
 a subject of frequent encomium in the past, and may be an 
 object of imitation in the future, a review of its organization 
 and powers will not be out of place as bearing on the subject 
 of this treatise. 
 
 The University of the State of New York is an organization 
 including all the incorporated colleges of the State, together 
 with the incorporated academies and the academical depart- 
 ments of public schools. The governing body is a Board of 
 Regents, composed in part of State officers, who are members 
 ex officio, and of others who are elected by the legislature. 
 Their functions are those of supervision and inspection only, 
 and not of instruction. The original theory was that of an 
 English university, composed of separate and independent 
 colleges, established not necessarily in the same locality, but 
 distributed through the State, as circumstances might call for 
 them ; and the most ardent admirers of the institution still 
 proudly compare it with the University of Oxford, though to 
 one less interested the points of resemblance seem very few. 
 The original act creating the University was passed by the 
 legislature May i, 1784, at its very first session after the close 
 of the Revolutionary War, in response to a strong appeal 
 from Governor Clinton. The plan of the institution established 
 by this act proving incapable of satisfactory realization, it was 
 made a subject of frequent amendment, until at present its 
 organization and functions are substantially as follows. Omit- 
 ting any consideration of its duties in connection with the 
 State Library, the State Musenm, the Normal School at Albany, 
 the determination of the State boundaries, and the publication 
 of its reports and manuals, which do not immediately concern 
 us ; we may briefly review its organization and its powers of 
 incorporation, visitation and granting degrees. The board 
 consists of twenty-three members, of whom four are Regents 
 ex officio, viz : the Governor, the Lieutenant-Governor, the 
 
 35
 
 Secretary of State, and the Superintendent of Public Instruc- 
 tion, while the remaining nineteen are chosen by the legisla- 
 ture in the same manner as United States Senators, and hold 
 their office during the legislature's pleasure. A regent must be 
 a citizen of the State, and cannot be a trustee or any other 
 officer of a college or academy under the visitation of the 
 Board. The officers of the Board are a Chancellor, a Vice- 
 Chancellor, a Secretary and Treasurer, and an Assistant Secre- 
 tary, who are chosen by ballot by the regents. Nearly all the 
 business of the Board is conducted by means of standing com- 
 mittees, of which there are in all ten. 
 
 The first important power of the Board of Regents is that 
 of incorporating colleges and academies, which was given it 
 by the act by which it was established. This power did not 
 originally include that of incorporating medical colleges, which 
 was, however, subsequently conferred (Laws of 1853, ch. 184, 
 7) upon condition that the college applying should first secure 
 property to the extent of $50,000 before a permanent charter 
 could be granted. Later on the Board established, by general 
 ordinance, similar provisions for the incorporation of literary 
 colleges and academies, requiring that the former should secure 
 $100,000 and the later $5,500 before receiving a charter. As 
 incident to the power of incorporation, the Board is also 
 authorized to annul and amend charters on due cause being 
 shown. The second power ot the regents is that of visitation. 
 The Board is authorized to visit and inspect by its officers, 
 committees and accredited agents all the colleges and acade- 
 mies which are or may be established in the State, and to " ex- 
 amine into the state and system of education therein." This 
 authority of visitation extends, not merely to the institutions 
 chartered by the board itself, but also to those receiving their 
 charters from the legislature. Each such college and a.cademy 
 is required by law to make to the Board an annual report of its 
 affairs, according to such instructions and forms as the Board 
 may furnish ; though it may be observed that to the breach of 
 this law no special importance seems to be attached. This 
 report pertains generally to its financial condition, its means of 
 imparting instruction, its departments of study, and its statistics 
 of attendance, and it is from the results of the information
 
 gathered by the visitation, and from the returns made to the 
 board, that the latter's annual report is compiled. 
 
 In the third place, and finally, the Regents have the power 
 of granting, and of delegating to the colleges chartered by them 
 the power of granting, literary and other degrees. The exact 
 significance of learned degrees in this country would constitute, 
 perhaps merely because of its vagueness, an interesting subject 
 of special study. That such a degree is supposed to be a badge 
 of honor conferred upon the recipient by the people at large, 
 indirectly through the legislature, which may perhaps for this 
 purpose be looked upon as its agents, may reasonably be in- 
 ferred from the fact that the power to grant such degrees is 
 always made a subject of special mention in the charters under 
 which college corporations act. But what legal steps could be 
 taken to prevent an unauthorized person from assuming, or an 
 unauthorized body of men from conferring such academic titles, 
 does not (in the absence of special statutes), seem clear. It 
 would presumably be possible to restrain a corporation (not edu- 
 cational in character), from giving degrees, on the ground that it 
 was acting ultra vices in doing something not incidental to the 
 discharge of its ordinary business. But, as certainly seems at 
 first blush and as has been decided, in fact, by the courts, (The 
 State of Missouri, ex rel. Granville vs. Gregory, 83 mo. 123), 
 since the conferring of degrees or certificates of proficiency is a 
 natural incident of educational institutions, why such institu- 
 tions, even after incorporation, should not have the power of so 
 bestowing them without an express grant of this power by the 
 legislature or (as in this State) its agents, does not seem at all 
 evident. There are, as far as I have been able to determine, no 
 express statutes (either in this State or any other) against the 
 unwarranted assumption of degrees, except in the case of M. 
 D., which is generally recognized as carrying with it certain 
 privileges, the usurpation of which would be a fraud upon the 
 public, (i) But as the possession of other academic titles as a 
 rule confers, in spite of their somewhat imposing " cum omnibus 
 
 (i.) Thus it is provided in New York by Laws of 1887, chap. 647, 6, that "any per- 
 son who shall assume the title of doctor of medicine or append the letters ' M. D.' to his or 
 her name without having received the degree of doctor of medicine from some school, 
 college, or board empowered by law to confer said degree or title, shall be deemed guilty 
 of a misdemeanor, and upon conviction thereof shall be punished by a fine of not less than 
 two-hundred and fifty dollars, or imprisonment for six months for the first offence, and 
 upon conviction of a subsequent offense by a fine of not less than five hundred dollars or 
 imprisonment for not less than one year, or by both fine and imprisonment." 
 
 37
 
 priviligiis ad istum gradum pertinenntibus," no privilege save the 
 very inoffensive one of appending a few (frequently meaningless) 
 capital letters as a sort of an erudite tail-piece to an otherwise 
 undistinguished name, from an exercise of which privilege, no 
 matter how unwarranted, a common-sense public would not 
 probably consider itself to be specially wronged, the possession 
 of this "right" of conferring degrees seems a rather ill-defined 
 feature of a department of government. However, abandoning 
 a speculation which, though entertaining and (I believe) hitherto 
 untouched, is perhaps somewhat foreign to our present purpose, 
 it is sufficient to state that this power is possessed by the Board 
 of Regents, and that they are authorized by the people of the 
 State of New York, represented in Senate and Assembly, "to 
 give and grant to any of the students of the University, or to 
 any persons thought worthy thereof, all such degrees as well in 
 divinity, philosophy, civil and municipal laws, as in every other 
 art, science, and faculty whatsoever, as are or may be conferred 
 by all or any of the Universities in Europe." 
 
 Such is in substance the New York Board of Regents, 
 remarkable because embodying the only systematic attempt on 
 the part of a State Government to exercise a general supervision 
 over collegiate corporations of a private character. It is true 
 that there are in other States educational boards called Boards 
 of Regents, but on inquiries I am informed that their functions 
 and powers are not similar in nature or extent to those of the 
 New York Board, and that in this feature of its educational sys- 
 tem the Empire State stands quite alone. 
 
 So much for the general character of the American College : 
 it now remains to see to what extent this character has been 
 impressed upon it by the action of the courts, and what on the 
 whole, has been their attitude in cases where their interference 
 seemed justifiable. As before intimated, their jurisdiction over 
 matters of internal collegiate management and discipline has 
 always been very limited, and the judicial decisions upon this 
 subject are few in number. 
 
 By far the most numerous class of cases in the law reports 
 on topics connected with colleges and the like, are those which 
 refer to the power of the trustees as incorporated bodies to deal 
 with the funds entrusted to them by individuals or by the State, 
 or to questions which (like that, for instance, of their right to 
 
 33
 
 sue and be sued by a corporate name, &c.) are applicable to 
 them only in so far as they are applicable to all other bodies, as 
 corporations, irrespective of their eleemosynary character ; such 
 questions have of course no interest for us in this connection. 
 Next in number and undoubtedly first in importance come the 
 cases, headed by the famous Dartmouth College vs. Woodward, 
 4 Wheaton, 518, on the question of the public or private charac- 
 ter of college corporations, which was in that case very thorough- 
 ly discussed, but which has, nevertheless, been made a subject 
 of almost continual litigation ever since. It cannot, of course, 
 well be denied that a college established for the promotion of 
 education and for instruction in the liberal arts and sciences, is 
 in some sense a public institution or corporation ; for it is 
 for the benefit of the public at large, or at any rate for all per- 
 sons who are suitable objects of the bounty, and this is the 
 popular sense in which the language is commonly used. And 
 so in this sense any institution founded exclusively by private 
 donors for purposes of general charity, such as a hospital for 
 the poor, the sick, the disabled, or the insane, may well be 
 called a public institution. But in the sense of the law, a far 
 more limited, as well as more exact, meaning is intended by a 
 "public institution or corporation. "Public corporations " (says 
 Chief Justice Marshall, in the great Dartmouth College case) 
 are "generally esteemed such as exist for public political pur- 
 poses only, such as towns, cities, parishes and counties ; and 
 in many respects they are so, although they involve some pri- 
 vate interests. But, strictly speaking, public corporations are 
 such only as are founded by the government for public purposes, 
 when the whole interests belong also to the government If, 
 therefore, the foundation be private, though under a charter of 
 the government, the corporation is private, however extensive 
 the uses may be to which it is devoted, either by the bounty of 
 the founder or by the nature and objects of the institution. For 
 instance a bank created by the government for its own use, 
 whose stock is exclusively owned by the government, is, in the 
 strictest sense, a public corporation. So is a hospital created 
 and endowed by the government for general charity. But a 
 bank whose stock is owned by private persons is a private cor- 
 poration, although it is erected by the government and its 
 objects and operations partake of a public nature. . . . 
 
 39
 
 This reasoning applies with all its full force to eleemosynary 
 corporations. A hospital founded by a private benefactor is a 
 private corporation in point of law, although dedicated by its 
 charter to general charity. So is a college, founded and en- 
 dowed in the same manner, although, being for the promotion 
 of learning and piety, it may extend its charity to scholars from 
 every class of the community, and this acquires the charter of 
 a public institution. The fact that the charity is public affords 
 no proof that the corporation is also public." 
 
 It is thus seen that a college, merely because it receives a 
 charter from the government and is founded for a public pur- 
 pose, is not thereby constituted a public corporation. The full 
 significance of this fact is appreciated when we consider that 
 if a corporation is public in character, it is subject to govern- 
 ment control, but if private, it is not In the Dartmeuth case 
 the New Hampshire Legislature attempted to make important 
 changes in the college charter and the privileges bestowed 
 thereunder, but was restrained from doing so on the ground 
 that the college was a private corporation, whose charter there- 
 fore was of the nature of a contract, to impair the obligation 
 of which would be unconstitutional. The same ruling was 
 made in Allen vs. McKean, i Sumner, 271, where there court 
 (per Judge Story,) further said : " Nor does it make any differ- 
 ence that the funds have been generally derived from the 
 bounty of the government itself. The government may as 
 well bestow its bounty upon a private corporation for charity, 
 as upon a public corporation ; and its funds, once bestowed 
 upon the former, become irrecoverable precisely in the same 
 manner, and to the same extent, as if they had been bestowed 
 upon a private individual. The government cannot resume a 
 gift once absolutely made to a private person, neither can it 
 resume a gift to a private corporation. It is true that a govern- 
 ment may reserve such a power in granting a charter, if it 
 chooses to do so, but then the power arises from the very 
 terms of the grant, (i) and not from any implied authority 
 derived from the bounty being for general charity, any more 
 than it would from its being for private charity. Nor is the 
 
 (i.) Thus in the Pennsylvania College cases, (13 Wall. 190.) the Legislature had 
 reserved in the charters of Jenerson College and Washington College, the right to change 
 the college constitutions ; so that the courts held that an act consolidating those two colleges 
 into one, was not unconstitutional. 
 
 40
 
 internal management of an eleemosynary corporation, though 
 founded or endorsed by the government, necessarily subject 
 to such control as would be implied by a power of visitation 
 by the government The same authority, (Judge Story in 
 Allen vs. McKean,) goes on to say . "To be sure, when the 
 government is the founder of a college, it has certain rights and 
 privileges attached to it in point of law, but in this respect it is 
 not distinguishable from any private founder. Every founder 
 of our eleemosynary corporation, (that is thefundafor perficiens, 
 or person who originally gives to it its funds and revenues,) 
 and his heirs have a right to visit, inquire into, and correct all 
 irregularities and abuses which may arise in the course of the 
 administration of its funds, unless he has conferred, (which he 
 has the right to do), the power upon some other person. This 
 power is commonly known by the name of the visitatorial 
 power, and it is a necessary incident to all eleemosynary cor- 
 porations ; for these corporations being composed of individ- 
 uals subject to human frailties are liable, as well as private 
 persons, to deviate from the end of their institution, and there- 
 fore ought to be subject to some supervision and control . . . 
 But a founder may part with his visitatorial power and vest it 
 in other persons ; and when he does so, they exclusively suc- 
 ceed to his authority." This is commonly the case with 
 college corporations ; the founder, whether he be a private 
 person or the state, vests the power of visitation in a board of 
 visitors, and then he has no further right to interfere with its 
 management than if he were a mere stranger. "The visitor 
 (says Judge Bliss in the case of St. Charles College, State ex rel. 
 Pittman vs. Adams, 44 Mo., 578,) is the judge and arbiter to 
 decide all disputed questions not involving the integrity of the 
 management of the fund or the observance of the statutes of the 
 founder and he alone can make by-laws that shall bind the 
 officers." It being thus settled that if a college corporation is 
 private in character it is beyond the reach of state control, the 
 question arises as to how we may determine under what cir- 
 cumstances it is private ; what is the distinction between edu- 
 cational institutions of a private and those of a public nature ? 
 The answer to this question, as apparently determined by the 
 Dartmouth College case, and the numerous subsequent cases 
 upon the same point reciting upon it as an authority, is, in
 
 general, that if the property possessed by 'the corporation is 
 altogether the property of the state, if the corporators have 
 done nothing amounting to a valuable consideration for the 
 act of incorporation, in short, if there is no contract between 
 the state and the corporators, it is a public, and not a private 
 corporation. Further, if the act of incorporation be a grant of 
 political power, if it create a civil institution to be employed 
 in the administration of the government, so that the state alone 
 may be said to be interested in its transactions, then it is a 
 public corporation, and as such of course amenable to the 
 pleasure of the legislature. 
 
 Litigations involving this distinction have been of com- 
 paratively frequent occurrence in the Western States, where the 
 universities have usually either received important aid from, or 
 have been immediately connected with, the government, and 
 the question has thus been more frequently made a subject of 
 judicial consideration there than it has in the Eastern States, where 
 the colleges have been supported chiefly by private endow- 
 ment, independent of government action. Thus the University 
 of Alabama has been held (Trustees of the University of Ala- 
 bama vs. Winston, 5 Stew, and P.. 25) to be a public corpora- 
 tion, on the ground that its funds were derived from public 
 property, and that the character of an institution is not deter- 
 mined from its incorporation, but from the manner in which, 
 and the object for which, it was formed. For similar reasons 
 the University of Missouri was likewise considered to be a 
 public corporation. (Head vs. Curators of the University of 
 Missouri, 47 Mo., 220.) It was established by an act of the 
 legislature, and as there were no grantees named in the grant, 
 there were none to accept or reject the grant, and the creation 
 of the institution was in no sense a contract. Hence, though 
 the funds for its maintenance were derived largely from private 
 gifts (in fact partly from Columbia College), the university was 
 still a public corporation, and an appointment to a professor- 
 ship was an appointment to a civil office. A similar case was 
 similiarly decided in the courts of North Carolina (University 
 of North Carolina vs. Maultsby, 8 Iredell, 257), where it was 
 held that the donations of private individuals did not in any 
 wise change the public nature of the university. So, too, the 
 University of Nebraska (Regents vs. McConnell, 5 Neb., 423)
 
 was held to be a public corporation, and the court said that 
 "such public corporations are but part of the State machinery 
 employed in carrying on the affairs of the State, and they are 
 subject to be changed, modified or destroyed, as the exigencies 
 of the public may demand." The same results were arrived at 
 in the cases of the Medical College of Virginia, (Lewis vs. 
 Whittle, 77 Va., 415,) and Straight University in Louisiana 
 (State of Louisiana ex rel. Board of Trustees of Straight Univer- 
 sity vs. Graham). In one case (Weary vs. The State University, 
 42 Iowa, 335) the court went so far as the hold that the univer- 
 sity (that of Iowa) was not even a corporation at all, either 
 private or public, but merely a creation of the legislature and 
 a branch of the government like other public eleemosynary 
 institutions, such as State asylums for the insane, blind, deaf 
 and dumb, &c. 
 
 Having considered in general to what extent colleges are 
 amenable to State control according as they are in nature public 
 or private, and having seen that, if they are private corporations 
 they cannot be judicially interfered with, unless, being incor- 
 porated, they act distinctly ultra vires, we may now determine 
 what acts have been considered by the courts to be beyond the 
 range of the powers bestowed by a college charter and what 
 have not. It may be premised that the courts are, as a rule, 
 reluctant in deciding that a corporation has acted ultra vires, if 
 the result of such decision would be to bring about a total for- 
 feiture of its charter, but that they are less liberal if the object 
 of the suit in which their intervention has been invoked, is 
 merely to restrain the corporation by injunction from commit- 
 ting, or continuing to comit, action prejudicial to others' private 
 rights. This tendency is strongly marked in cases where the 
 corporations are of eleemosynary character, for these being for 
 the benefit of the public at large, an interpretation of the terms 
 of their charters such that unimportant violations of them would 
 cause them to be altogether forfeited and put an end to the 
 existence of the institutions, would work great public wrong. 
 
 In The State of Ohio ex Rel. vs. Farmers' College, (32 Ohio 
 State, 487), the learned judge said, "The courts proceed with 
 extreme caution in proceedings which have for their aim the 
 forfeiture of corporate franchises, and such forfeitures are not to 
 be allowed unless under express limitation of the charter or for 
 
 43
 
 a plain abuse of power by which the corporation fails to fulfill 
 the design and purposes of its organization," and the circum- 
 stances of this case afford an excellent example of the applica- 
 tion of the doctrine. The avowed object of the Farmers' College, 
 as declared by its acts of incorporation was "to direct and cul- 
 tivate the minds of the students in a thorough and scientific 
 course of studies particularly adopted to agricultural pursuits." 
 The college authorities did then in fact establish a chair of 
 agriculture and filled it with a competent professor, but 
 scientific farming did not prove popular, and no one attended 
 the agricultural course. The trustees further offered a full 
 classical college course, and this attracted a fairly large 
 number of students. An attempt was made to restrain the 
 college from spending its funds on studies apparently so 
 much at variance with the objects of its foundation, but 
 the court held that classical studies were necessary to 
 enable a farmer to understand fully the meaning of agricul- 
 tural terms, and the charter was not forfeited. S ill more ex- 
 tensive powers were considered to be vested in the trustees, by 
 the court in The People -vs. The President and Trustees of the 
 College of California, 38 Cal., 166. In this case the college 
 charter provided, among other things, that the trustees should 
 have power "to sell, mortgage, lease, and otherwise use and 
 dispose of such property, (the college property), in such man- 
 ner as they shall deem most conducive to the prosperity of the 
 college." The trustees actually did deem it expedient to put an 
 end to the individual existence of the college altogether, by 
 granting all its funds to another similar institution, and the 
 court held that as long as they could be presumed to be acting 
 bonafide with the intention of advancing the interests of higher 
 education and thereby fulfilling the object for which the college 
 was founded, they were not acting beyond the scope of their 
 authority in terminating the college's very existence. Nor 
 could the circumstance that a number of voluntary donations 
 had been made to the institution be considered as of any weight in 
 restraining them from properly disposing of the college property 
 and surrendering its franchise ; for, it was held, persons making 
 such donations must be presumed to have known the law con- 
 cerning the extent of the trustees' powers. A somewhat similar 
 case is found in the New York Reports, (The People vs. the 
 
 44
 
 Trustees of Geneva College, 5 Wend., 211 ; reversed in 26 N. Y., 
 217), though in this o ily a part of the college funds was to be 
 devoted to the establishment of another institution. The Supreme 
 Court held that Geneva College in Ontario Co. had not power 
 to expend the college money in establishing a branch school in 
 the city of New York to be called the Rutgers Medical Faculty 
 of Geneva College, and that the establishment of the same and 
 the appointing of professors to take charge thereof was an usur- 
 pation of a franchise for which an information in the nature of a 
 quo waraanto might be filed. But this ruling was not sustained 
 by the Court of Appeals, which declared that "the powers pos- 
 sessed by a college corporation should be liberally construed, 
 and their exercise allowed with wide discretion within the field 
 of its objects. Thus if the charter contains a provision that the 
 object of the corporation is 'to promote education in general 
 and to cultivate and advance literature, science, and the fine 
 arts' it may even use its funds to pay the expenses of educating 
 young men in other institutions. For it may pursue its object 
 by any means not forbidden, and it may employ other teachers 
 and other seminaries as preparatory to its own course or even 
 as modes of dispensing the instruction it proposes to give.'' 
 Thus in a Massachusetts case, (6 Pick., 427), an academy incor- 
 porated "to promote morality, piety, and religion and for the in- 
 struction of youth in the learned languages and in arts and 
 sciences" was held capable of taking the promissory notes of 
 individuals to constitute a fund to form another institution "for 
 the classical or academical and collegiate education of young 
 men with a view to the Christian ministry." On the other hand, 
 the charter will sometimes be construed strictly, especially 
 when, as I have before remarked, the results of such construc- 
 tion will not be a forfeiture of the franchise, but will merely 
 result in an injunction restraining the college from the commis- 
 sion of a particular act. Thus in a case in this State, a college 
 charter contained in its provisions a clause to the effect that if 
 the trustees ahould desire to remove the college to some other 
 location, they should be at liberty to do so upon notifying the 
 Secretary of State of such intention ; and the court construed 
 this so strictly as to hold that the condition was not complied 
 with within the meaning of the act of incorporation by a noti- 
 fication that the college was to be removed "to Rochester or its 
 
 45
 
 vicinity." (Hascall vs. Madison University, 8 Barb., 174.) 
 Another New York case in which the courts interfered to re- 
 strain a college from an exercise of power not warranted by its 
 charter is interesting as illustrative of the rare attempts on the 
 part of colleges to claim exceptional rights on the mere ground 
 that they are colleges or universities and hence should have the 
 same prerogatives as are possessed by bodies of similar name 
 in England. I refer to the case of The Medical Institution of 
 Geneva College vs. Pattison, i Denio, 61 ; in which Geneva 
 College claimed the right of establishing and incorporating a 
 medical school. The argument of the counsel for the plaintiff, 
 which was both learned and ingenious was, briefly, that as the 
 English universities (and especially Oxford) have the power of 
 incorporating colleges, (which power was conferred by Parlia- 
 ment or by the Crown in their charters), and as Columbia Col- 
 lege was endowed by the legislature (through the Board of 
 Regents) with all the rights of the English universities, and as 
 Geneva College (like all New York colleges) was endowed by 
 the same authority with all the rights of Columbia College, 
 therefore Geneva College was possessed of the right of incor- 
 porating other similar institutions. The court, however, failed 
 to admit this reasoning, and held that as the organization of 
 Columbia College was not on the whole at all similar to that 
 of Oxford, (there being, for instance, no chancellor), neither it 
 nor any other New York college had any power of incorporation. 
 Disputes have arisen concerning the extent to which a 
 college may adopt a policy or pass by-laws inconsistent with the 
 apparent intention of those who have contributed to the college 
 funds upon the acceptance by the college of certain conditions. 
 And in these cases it is held that a college is bound strictly to- 
 me performance of the conditions annexed to grants of money 
 to it, and that conversely the acceptance of the conditions con- 
 stitutes a valuable consideration, in virtue of which it may 
 enforce the fulfillment of a promise of contributions. Thus in 
 Hammond vs. Shepard, (40 How. Pr. , 452,) it was held that an 
 agreement on the part of the trustees "to hold their doors open 
 on all moral questions," was a sufficient consideration to 
 enforce the payment of a promissory note. And on the other 
 hand, it has been decided (The Illinois Conference Female 
 College vs. Cooper, 25 111., 148) that a college has no right 
 
 46
 
 to adopt by-laws injuriously affecting the rights of others under 
 prior contracts by annexing conditions not named in the con- 
 tracts. So after the sale of a perpetual scholarship in an incor- 
 porated college, a by-law annexing a condition that the pupil 
 presented under it shall board in the college and be subject to 
 the collegiate charges therefor, is unauthorized and void. The 
 same ruling was made in The Trustees of Howard College vs. 
 Turner, (71 Alabama, 429,) to the effect that a certificate of 
 permanent scholarship issued by the trustees, by which the 
 holder, in consideration of money paid, becomes entitled to one 
 pupil's tuition in perpetuo is a valid and binding contract, con- 
 ferring upon the holder the right to send any fit person within 
 his option to the college as a pupil to be educated subject to 
 the usual regulations of the institution, free of tuition ; and im- 
 posing on the corporation a corresponding legal obligation, a 
 breach of which is a ground of action. And such a breach is 
 constituted by the refusal to permit such holder to make such 
 appointment. In some of the Western States the law provides 
 that each county shall have the right to send one or more 
 pupils to the State university to receive tuition free of charge. 
 In one instance, (McDonald vs. Hagins, 7 Blackf., 525,) the 
 University of Indiana attempted to refuse to admit such free 
 student to the law school, on the ground that the latter was not 
 the "University." But the court held that all branches of the 
 institution, even though the sessions and courses of instruction 
 were shorter than those in most of the departments, were to be 
 considered as the "University," and to come within the rule. 
 Nor can a college, unless such provisions are included in its 
 charter or by-laws, reject an applicant for admission on the 
 ground that she is a female. Thus Hastings College attempted 
 to do so, (Foltzz>s. Hoge, 54 Cal., 28,) but it was held that as the 
 only qualifications for admission expressed in the statutes were 
 that the applicant must be a resident of the State, over fourteen 
 years of age, and of good moral character, they must not be 
 construed to imply a qualification of sex, and the trustees had 
 no right to reject a woman merely because she was a woman . 
 An interesting case arose in Massachusetts concerning the 
 power of the State Legislature to pass laws regulating the dis- 
 cipline of collegiate corporations, and concerning the constitu- 
 tionality of such laws when they were apparently prejudicial 
 
 47
 
 to the rights of third persons. In this case, (Soper vs. The 
 President and Trustees of Harvard College, i Pick., 177,) it 
 appeared that the legislature had passed an act providing that 
 no livery stable keeper "shall give credit to any undergraduate 
 of either of the colleges within this commonwealth without the 
 consent of such officer or officers of the said colleges respec- 
 tively, as may be authorized to act in such cases by the gov- 
 ernment of the same, or in violation of such rules and regula- 
 tions as shall be from time to time established by the authority 
 of said colleges respectively," and giving an action on the case 
 against any person so giving credit, to recover a sum equal to 
 the amount credited. The plaintiff, a livery-stable keeper, 
 claimed that the act was unconstitutional, but his claim was 
 not sustained. The opinion states that "the court entertained 
 no doubt of the constitutionality of the law on which this action 
 is founded. The object of it is clearly within legislative sanc- 
 tion, being relative to the discipline of public seminaries of 
 learning. The common law renders void any promise made 
 by an infant, the consideration of which is not for necessaries ; 
 but people will nevertheless give credit to them, and minister 
 to their pleasures and dissipation, relying upon the honor of 
 ingenuous young men to discharge debts so incurred. Thus 
 the wholesome intention of the common law is evaded, and 
 youths are exposed to temptations which it is difficult for them 
 to resist, and thus parents are brought to expense, besides 
 suffering the loss of their hopes in the education of the children. 
 A general law, such as the one in question, is perhaps the only 
 remedy for so great an evil; and this statute may be con- 
 sidered as passed in aid of the common law, being founded on 
 similar principles ; for youth assembled at a college for educa- 
 tion are properly regarded as minors, whether of twenty-one 
 years of age or under. An attempt was made to evade a similar 
 law in Connecticut, (Morsels. The State of Connecticut, 6 Conn., 
 9,) by claiming that the person to whom credit was given was 
 not a "student of the college" (Yale), because according to 
 the college by-laws no one was to be regarded as a regular 
 member until he had been admitted to matriculation after six 
 months' residence ; but the court held that simply passing an 
 entrance examination and attending lectures was sufficient to 
 
 48
 
 constitute a person a student, he being under the government 
 of the authority presiding over the institution. 
 
 In respect to the interesting question of academic degrees, 
 to which I have already alluded, the only case I have been 
 able to find bearing directly on the power of a college corpora- 
 tion to grant such degrees when not expressly authorized to do 
 so by the State legislature in its charter, is The State of Mis- 
 souri ex rel. Granville vs. Gregory, 83 Mo., 123. In this case 
 the relator applied to the State Board of Health for a certificate 
 to practice medicine, presenting a diploma from the Kansas 
 City Hospital College of Medicine (of Missouri), but was refused 
 such certificate partly on the ground that the said college had 
 no authority to issue diplomas or grant degrees. This was 
 held not to be a valid objection, and the opinion of the court, 
 which was stated at some length, was in substance as follows ': 
 The medical college was incorporated under the provisions of 
 a general law, by virtue of which, after the performance of 
 certain conditions, the college incorporation was considered to 
 be effected. Now, when the legislature authorized, by a 
 general law to that effect, the incorporation of colleges, it must 
 be presumed to have been conversant with the effect of such a 
 general enactment, and to have intended that the usual inci- 
 dents and consequences should flow from such incorporations. 
 Among the incidents and consequences which have been cus- 
 tomary with institutions of this character are those of conferring 
 degrees upon those of the students who, having pursued the 
 curriculum, have been graduated, and the issuance to them of 
 diplomas bearing evidence of that fact. A diploma is said to 
 be "a document bearing record of a degree conferred by a 
 literary society or educational institution," or, in other words, 
 a statement in writing, bearing the seal of the institution, 
 setting forth that the student therein named has attained a cer- 
 tain rank, grade or degree in the studies he has pursued. If it 
 be said that there is no express power granted to such an insti- 
 tution by the general law of its organization to confer degrees 
 on its students, it may be replied that neither is express power 
 bestowed by that law to prescribe the course of study the 
 students shall pursue. In this country a corporation has 
 authority to do any act which is expressly or impliedly author- 
 ized by its charter, and charters are to be construed in the 
 
 49
 
 light of custom. These conditions induce the belief that the 
 college of medicine, under power necessarily implied from its 
 being incorporated for a certain purpose, could lawfully issue 
 and deliver to its graduates diplomas giving evidence of the 
 matters therein recited. 
 
 In a Massachusetts case, (Wright vs. Lanckton, 19 Pick., 
 288,) contention arose as to the time when a resolution by a 
 board of trustees, to confer a degree, took effect. The plaintiff, 
 it seems, sued the defendant to recover fees for medical 
 services, and was met with the reply that he was not yet a 
 doctor of medicine. He offered to prove that the trustees of 
 Williams College had "voted that the honorary degree of 
 doctor of medicine be conferred " upon him, and the defendant 
 tooic exception to this proof offered to show the possession of 
 the degree. At a regular meeting of the trustees (with whom, 
 without further sanction, rests the authority to confer all degrees) 
 it was voted that the honorary degree of doctor of medicine 
 be conferred, &c. It was objected that this was prospective 
 and incomplete ; that it was a determination that a degree be 
 conferred, but did not confer it ; that it was rather an authority 
 to the president and other competent officers to confer the de- 
 gree, than the definite act conferring it. But the court over- 
 ruled this exception, and declared the evidence to be compe- 
 tent, for "when an aggregate body is authorized to make an 
 appointment or grant an authority or privilege, and no mode 
 is specially directed in which it shall be done, or by which it 
 shall be proved,, a vote that the act be done, or the right 
 granted, is an execution of the power ; and a duly authenticated 
 copy of the vote, a sufficient proof of it. A public annuncia- 
 tion or a diploma may be extremely suitable and appropriate 
 modes of declaring and giving notoriety to the act, but they are 
 not necessary," (citing Maibury vs. Madison, i Cranch, 137.) 
 
 Having illustrated, as far as possible, the cases in which 
 the courts are considered competent to interfere with the action 
 of corporations, it will not be inappropriate to state when and 
 by whom such interference may be invoked. In The People 
 ex rel. Drake vs. The Regents of the University of Michigan, 4 
 Mich., 98, it was held that as a general rule it is not competent 
 for a private person in a matter in which he is not directly in- 
 jured to compel a public board to the performance of a duty ;
 
 and that, therefore, as the financial and other interests of the 
 University of Michigan were intrusted with wide discretionary 
 powers to a board of regents, it was a sufficient answer to an 
 application for a mandamus to show cause why they did not 
 appoint to a professorship established by law, that the appoint- 
 ment in question requirred great deliberation. This ruling 
 would probably apply, a fortiori, to corporate colleges of 
 private nature. 
 
 CHAPTER VI. 
 CONCLUSION. 
 
 From the foregoing statement two inferences may fairly be 
 drawn, or in other words, two facts seem clearly to appear. 
 In the first place the citizens of the United States, and even 
 before the United States existed as such the English colonists 
 in America, have from the first proclaimed and still hold to the 
 principal of popular education as a prime factor in national 
 excellence and a legitimate or even imperative object of gov- 
 ernment expenditure. That this principle has everywhere and 
 at all times obtained the same extent of recognition, it were 
 vain to assert : in fact the variance of opinion which, especially 
 at a very early date in our educational history, existed in 
 different sections of this country was noted above. But the 
 opposing views were so early reconciled that the general truth 
 of this statement concerning the universality of the doctrine of 
 free school instruction for the people is in no wise impaired. 
 The chief topic of dispute concerning our American educa- 
 tional system has been, and still is, not whether the govern- 
 ment should provide free instruction for the people and enforce 
 them to avail themselves of its advantages by compulsory 
 laws, but, granting that it should, whether this is a duty and a 
 power remaining in the governments of the several common- 
 wealths or whether it is also imposed or conferred upon the 
 central government? The frequent endeavors to obtain the 
 passage of bills through the National Congress providing for 
 the establishment of a system of free schools maintained and 
 controlled by the central government, and the constant oppo- 
 sition to such bills on the ground that the government has no 
 such power under the Constitution, have made the arguments 
 to be presented for and against such a system familiar to all.
 
 The second fact which presents itself prominently to the 
 observer of our educational system, as well as to the student of 
 its history, is the extreme freedom from control by the central 
 government over the internal management of our public edu- 
 cational system, and the almost entire absence of any govern- 
 ment control whatever in the case of private, though incorpor- 
 ated, institutions of learning. The result of this is of course 
 an utter lack of uniformity in matters of education, except in 
 the merely external matters of organization and financial gov- 
 ernment, both in the ideas aimed at and in the methods 
 adopted to attain them. The control exercised by our State 
 governments over the common schools concern chiefly their 
 financial relations, and any endeavor to prescribe in detail the 
 studies to be pursued, or rather the doctrines to be inculcated 
 in them, is looked upon very jealously as a possible prostitu- 
 tion of the school system to purposes of party politics. The 
 immediate injurious effects of the heterogeneous nature of our 
 public instruction consequent upon so great freedom of local 
 action, are many and well known, and too much stress cannot 
 be laid upon the ever-growing necessity of a more uniform 
 system of primary instruction as a means of binding together 
 the opposing elements of our mingled population by an in- 
 grained sentiment of national unity. The absence of govern- 
 ment or other centralized control, even with the existence of 
 government patronage and protection, in our higher institutions 
 of learning, results in a like want of uniformity with like deplor- 
 able results in our colleges and universities. There are at 
 present upwards of 400 colleges in this country, each with 
 its own standard of higher education, and each differing from 
 all the rest in the aims and methods of its curriculum, but all 
 presuming to be equal in rank and dignity, and all possessed 
 of similar powers of conferring titular badges of academic dis- 
 tinction. The natural result is a general want of confidence in 
 college training and a still greater disrespect for college honors 
 and degrees. 
 
 The proper and only remedy for these evils is a system of 
 university instruction such that a diploma from any incor- 
 porated college shall be an ,.impeachable token of thorough 
 work done, and the only way of thus giving the stamp of pop- 
 ular approval to a college degree is to have the college itself, 
 and, in preparation for it, the schools, under the immediate 
 and thorough control of a powerful and enlightened govern- 
 ment. 
 
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