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Caption: Book - History of the University (Powell)
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University Organizes 301 not, as they see fit; in respect to the former, they have no choice or discretion whatever, they must provide for them, or violate their oaths and the laws. "The departments of instruction for which the trustees are positively and peremptorily required to provide, and that 'in the most thorough maqner/ are two: " 1. ' Such branches of learning as are related to agriculture and the mechanic arts/ and "2. 'Military tactics/ "Instruction in these is a sine qua non, a condition precedent, default in which would work the forfeiture of the endowment. "Those branches of learning which are 'not excluded' and for which the Trustees MAY therefore, provide, at their discretion, are embraced in the comprehensive phrase, ' other scientific and classical studies.' "The boundaries of the present inquiry are thus sharply defined, both inclusively and exclusively. If the Trustees have arranged a course of study embracing 'such branches of learning as are related to agriculture and the mechanic arts/ and also 'military tactics/ they have strictly complied with the law; and if in addition to these they have also provided for SOME 'other scientific and classical studies,' they have therein done precisely what the law, in so many words, allows and empowers them to do. Indeed, a much stronger interpretation of the clause, 'WITHOUT EXCLUDING other scientific and classical studies/ is held by many eminent lawyers and jurists to be legitimate, if not even obligatory. In their view it would be by no means an unwarrantable construction to regard the italicized words in the above quotation as but another form of REQUIREMENT—as coupling the duty of not excluding certain studies, with that of including certain other studies, and embracing both alike in the positive injunctions of the statute. But while this view is not without much force, and is strenuously maintained by many, I have preferred to adopt the permissive or optional theory, because it is the one about which there cannot be the semblance of cloud or doubt/'
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