because the framers of this Andover Creed have required
a certain conformity to that creed; and the sole question
which we present for decision before the Board of Visitors-
is whether they have departed from it or not,"
As between Judge Hoar's charge of limited "heter-
odoxy " (heterodoxy, that is, limited to variance from the
Andover Creed) and Dr. Dexter's indictment for "breach
of trust," there seemed to be a wide difference, but it was
finally seen to resolve itself into the difference between
THE ANDOVER PERIOD 197
the excited feelings of the complainants and the cool judg-
ment of their counsel. A^ow-conformity to the Creed might
possibly be interpreted as a breach of trust; but before
that interpretation could be put upon it, it was certainly
necessary to prove the charge of non-conformity.
The issue as presented to the Visitors through the
"Amended Complaint," though somewhat simplified, was
not so simple as it appeared to be. It had an historical
background. The questions involved were broad and
fundamental. They were such as these — What was the
nature of the obligations assumed by subscription to
creeds on religious foundations.'^ What had been the
usage in subscription to the Andover Creed? WTiat was
the theological intent and purpose of the Creed itself?
These were questions of vital interest affecting all insti-
tutions founded or endowed under obligations to a creed.
They invited the most thorough and in every way com-
petent treatment.
The counsel brought into the trial were men of unusual
fitness for their duty — on the part of the complainants
Judge Rockwood Hoar, Judge Asa French, and Arthur
H. Wellman, Esq., son of one of the complainants; on the
part of the defendants. Judge Theodore W. Dwight, of
New York; Professor Simeon E. Baldwin, of the Yale Law
School; Judge Russell, a former Visitor; and ex-Governor
Gaston. Of these the most picturesque figure was Judge
Hoar, partly through his personality, and partly because
of the open and often humorous expression of his mental
attitude toward the controversy — "a plague o' both
your houses."
The trial was set for December 28, 1886, and continued
through January 3, 1887. It was held in one of the large
198 MY GENERATION
dining-halls of the United States Hotel, Boston, which
had been converted under the interested supervision of
the landlord, Tilly Haynes, into a rather imposing and
altogether convenient courtroom. The number of adjacent
apartments suitable for retiring and conference rooms
added much to the convenience of the "court." The at-
tendance at all the sessions was large; often the hall,
seating several hundred, was crowded. The interest ex-
tended beyond the friends of the Seminary or of the
parties immediately concerned, and beyond the religious
public, attracting the attention of many lawyers and
business men. The proceedings were fully reported, and
editorially commented upon, by the daily press.
The absence of two interested parties from any formal
participation in the trial called forth considerable com-
ment: the absence of students as witnesses, explained by
the fact already mentioned that the outspokenness of the
"Review" had precluded any necessity for the invasion
of the classroom to secure, if possible, testimony adverse
to the accused professors ; and the absence of the Trustees
in their official capacity, due to the refusal of the Visitors
to recognize them as a party to the trial. The enforced
absence of the Trustees from this cause was to have a
decisive bearing upon the final issue of the "case."
The trial was carried on in the main according to the
routine of legal procedure. The argument of the counsel
for the complainants was based upon the stringency and
explicitness of the terms of the Andover Foundation. The
revised Creed, which was a part of the compact between
the original and associate founders, was to be an un-
changeable document. Subscription to such a creed as-
sumed its literal interpretation. This was the burden of
THE ANDOVER PERIOD 199
the argument of both Judge Hoar and Judge French.
Dr. Dexter argued, out of his familiarity with the history
of the New England churches, that any omission from
the Creed of a definite condemnation of the theory of a
possible future probation could not be construed as allow-
ing the theory — a theory which was not accepted, and
would not have been tolerated at the time when the An-
dover Creed was written. He introduced a vast amount of
documentary evidence from the creeds of the churches,
and from sermons, to show the state of belief at the time.
Dr. Wellman took up the charges, specification by speci-
fication, to show that in all the cases specified the holdings
of the accused professors were out of harmony with the
Creed, and subversive of its plain requirements.
The defense began with an elaborate review by Judge
Dwight of the history of English charitable and religious
foundations, showing how they had been construed in the
English ecclesiastical courts, and in the courts of law.
Professor Baldwin continued the legal argument by show-
ing how the Andover Foundation had actually been con-
strued, and introduced the testimony of the more recently
inaugurated professors to prove the latitude allowed in
the terms of subscription to the Creed. Judge Russell laid
special stress upon the fact that the Board of Visitors had
already passed upon the very issue now before them,
when they declared that "the Visitors have been con-
vinced of the general harmony of Dr. [Newman] Smyth's
theological views with those which have been identified
with the history of Andover Seminary from the begin-
ning." The argument of Professor Smyth, whose case
had been made by agreement that of all the accused
professors, was a surprise to the complainants, in some
200 MY GENERATION
respects a disconcerting surprise. Instead of making it
a personal defense or a defense of his colleagues, it was a
bold and aggressive defense of the Andover Creed, prov-
ing by careful historical testimony and by equally careful
analysis that it was not an antiquated or reactionary
document, but rather one of the landmarks in the history
of theological progress. The unchangeableness which had
been insisted upon by the Associate Founders was not to
prevent progress, but to give the necessary assurance
against retrogression. An instrument so conceived and
guarded could not be used in after times as obstructive
to theological progress, nor could its unchangeableness,
so solemnly insisted upon, be construed into an argument
for literalness in interpretation. The relatively brief
statements of the other professors were simply supple-
mentary to this argument, having to do with the special
provisions pertaining to their respective professorships.
What was of more significance was their direct testimony
in regard to the terms of their individual subscription
to the Creed, which had been tacitly or expressly sanc-
tioned by the Visitors.^
I think that I was the first to make a public statement
1 I have given in mere outline the running course of the arguments on either
side. The arguments ran through five days, of two sessions, and occupied on
the average four hours each. For any analysis of the content of the arguments,
the reader is referred to the reports of the Boston papers, and of the Springfield
Republican covering the dates, December 28, 1886, to January 4, 1887; to the
files of the CongregationaUxt preceding and following the trial; to the files of the
Independent for January 6 and 13, 1887, giving substantially a verbatim report;
and to the Andover Defense, in which all the arguments of the counsel for the
defense, the argument of Professor Smyth and the statements and testimony of
his colleagues are given in authorized form in a book of 315 pages. I am not
aware of any like publication presenting the case of the complainants. The
proceedings before the Supreme Court on the appeal of Professor Smyth and on
the petition of the Board of Trustees are matters of court record. The findings of.
the Visitors and of the court are recorded from time to time in the Andover .
Review. The final record appears in the November number, 1892.
THE ANDOVER PERIOD 201
at the time of signing the Creed. What I then said appears
from the following record.
Q. (By Judge Baldwin.) Will you state, Professor Tucker,
whether anything was said by you as to your subscription to
the Creed at the time of your induction into office.''
A. I find this statement which I made upon my subscription
to the Creed, July 1, 1880. I did not meet with the Board of
Visitors upon my election, not having been notified by them of
any call to that effect. When I took the Creed I took it reading
this statement before subscription: "The Creed which I am
about to read, and to which I shall subscribe, I fully accept as
setting forth the truth against the errors which it was designed
to meet. No confession so elaborate, and with such intent may
assume to be the final expression of truth, or an expression
equally fitted in language or tone to all times."
Cross-Exami nation
Q. (By Judge Hoar.) You say that accompanied your sig-
nature to the Creed?
A. It was not copied into the book; the reading of it accom-
panied the signature.
Q. You read that at the time when it was proposed to you,
you should sign the Creed, and then you signed the Creed with-
out putting down more than your name?
A. Simply my name.
Q. And to whom was this exposition given?
A. This was given in the presence of the Trustees and Vis-
itors so far as present. I do not remember who were there; it
was a public inauguration.
Q. It was not a matter of consultation with the Visitors be-
forehand, as to whether that would be all that the constitution
of the Seminary would require?
A. It was not. I made the statement before reading the Creed,
then read the Creed, and, no objection being made, signed the
Creed after that statement.
The material paint in this testimony is not the state-
202 MY GENERATION
ment of the sense in which I took the Creed, but the
fact that I stated there was a sense in which I could
fully accept it, and another sense in which I regarded it as
incomplete and insufficient.
The testimony of Professor Harris and his colleagues,
who took the Creed two years later at the time of their
inauguration, discloses the form upon which they agreed
in their subscription — a form to which the Visitors gave
their sanction. The testimony of Professor Harris covers
the case of the others:
Q. (By Judge Baldwin.) State, if you please. Dr. Harris,
what were the circumstances attending your assent to the
statutes and Creed of the Seminary at the time of your receiving
the appointment to the professorship you now hold.
A. We submitted to the Visitors — I think I was the person
who submitted it — a proposal of the form in which we were
willing to take the Andover Creed, which, as nearly as I re-
member, was this: "I accept" (my uncertainty is as to that
word "accept") "this Creed as expressing substantially the sys-
tem of truth taught in the Holy Scriptures." The proposal was,
to accompany our signatures, either in writing or orajly, with this
statement, when the Creed should be publicly taken. To this
the president of the Board replied that there was no objection
to it, and that for his own part, he thought it would have a good
effect in the existing state of public opinion. I do not, of course,
quote the language, but the statement in general. I am not
aware that the Board of Visitors passed any formal vote in this
matter, but it was a distinct understanding, considered on our
part as having somewhat of the nature of an agreement with
them, that we should take the Creed under those conditions.
When the time of our induction into oflSce came, the Creed was
so taken by each of us, with the statement which I have desig-
nated, and, as we understood, with the sanction, not only of
the Board of Trustees, but also with the sanction of the Board
of Visitors.
THE ANDOVER PERIOD 203
The trial before the Visitors closed on the 3d of January,
1887. Five months later, June 17, the Visitors rendered
their decision, condemning Professor Smyth for holding
views contrary to the Creed of the Seminary and removing
him from his professorship, but passing no judgment upon
the theological views of his associates and leaving them
undisturbed in their chairs. The decision at once aroused
a deep sense of injustice, equaled only by an impatient
desire to know through what subterfuge such a miscar-
riage of justice could have been effected. The length of
time taken in preparing the verdict precluded the possi-
bility of an undesigned or accidental cause. In the absence
of any explanation from the Board conjectures were rife.
The calculation, based upon a plausible analysis of the
vote, which was afterward confirmed by direct legal tes-
timony, was to the effect that President Seelye voted to
acquit all the accused professors, such a vote being re-
garded as consistent with his vote on a previous occasion
rejecting Dr. Newman Smyth on other than theological
grounds; that Mr. Marshall, the new member of the
Board, voted to condemn all; and that Dr. Eustis voted
to condemn Professor Smyth, but declined to vote in the
case of his associates — the how and why of his action
being undetermined. It appeared later, from the records
of the Board, that Dr. Eustis excused himself from voting
on the cases of the four professors in question, on the
ground that he was not present at the session when they
made their individual statements. His absence at the time
was noted and the attention of the Board was called to the
fact. The Board ruled that his absence would in no way
invalidate the proceedings, provided a stenographic re-
port was made to be submitted to Dr. Eustis, and ordered
204 MY GENERATION
the continuance of the session. This ruling was accepted
by the counsel for the complainants. The provision was
complied with and an accurate stenographic report was
in due time submitted. The ruling of his associates did
not, however, seem to satisfy the scrupulous sense of
honor on the part of the Secretary of the Board, and he
refused to take advantage of it. "A similar instance of so
delicate a sense of propriety," remarked an editorial
critic, "has never come to our knowledge." The question
why Dr. Eustis declined to vote for the removal of all the
accused professors, in view of his outspoken denunciation
at various times of all concerned, was never clearly an-
swered. The uncontradicted rumor was current that this
evasive action was taken in the fear that more complete
and drastic action involving the practical reorganization
of the Faculty, would disrupt the Board. Upon this sup-
position, the Board did not anticipate what would have
followed if the associates of Professor Smyth had taken
his dismissal as a finality, namely, their immediate
resignation.
According to Art. XXV, Statutes of the Associate
Foundation, " the Board of Visitors in all their proceedings
are to be subject to our Statutes herein expressed, and to
conform their measures thereto; and, if they shall at any
time act contrary to these, or exceed the limits of their
jurisdiction and constitutional power, the party aggrieved
may have recourse by appeal to the Justices of the Su-
preme Court of this Commonwealth for the time being,
for remedy; who are hereby appointed and authorized to
judge in such case; and, agreeably to the determination
of a major part of them, to declare null and void any de-
cree or sentence of the said Visitors, which, upon mature
THE ANDOVER PERIOD 205
•consideration, they may deem contrary to the said stat-
utes, or beyond the just Hmits of their power, herein
prescribed; and by the said Justices of the Supreme Ju-
dicial Court, for the time being, shall the said Board of
•Visitors at all times be subject to be restrained and cor-
rected in the undue exercise of their oflBce."
At the close of a previous article (XX), after prescribing
the spirit and manner in which certain specific duties
shall be performed, the Visitors are enjoined "in general,
to see that our true intentions, as expressed in these our
Statutes, be faithfully executed; always administering
justice impartially, and exercising the functions of their
office in the fear of God, according to the said Statutes,
the Constitution of this Seminary, and the Laws of the
Land."
On the general ground that the Visitors had not "ad-
ministered justice impartially" in the decision rendered,
Professor Smyth took his appeal, according to the pro-
vision of Article XXV, to the Supreme Court of Massa-
chusetts. The specifications in this appeal were concerned
entirely with the behavior and action of Dr. Eustis, Secre-
tary of the Board, in his judicial capacity; charging him
with partiality and prejudice, and with having, at various
times and places, openly prejudiced the case.
Pending the course of this appeal Professor Smyth was
entitled to resume his duties as Professor of Ecclesiastical
History. This he did, and the affairs of the Seminary went
on without interruption during the ensuing trial.
A bill of complaint by the Trustees was also submitted
to the court, based on the refusal of the Visitors to allow
the Trustees to appear as a party to the "trial." It was
claimed that this denial of the rights of the governing
2o6 MY GENERATION
Board was a usurpation of visitorial power; and after re-
citing the course of action on the part of the Visitors fol-
lowing this refusal and leading up to their decision, the
Trustees ask the court for "light" as to the principles on
which they are to administer the trust committed to them,
under so "contradictory and insensible" a verdict. The
statement of the dilemma in which the Trustees find them-
selves is so clear that I give it in full in a footnote.^ The
1 "Forty-first. And the plaintiff says that under the pretended judgments,
decrees, and conclusions aforesaid, as recited in said communications from the
Visitors to the plaintiff, four of the accused professors were acquitted, and one
of the accused professors was convicted, upon precisely the same charges, sup-
ported by precisely the same proofs in the case of each of the said five profes-
sors; so that in case the action of the Visitors constitutes in law a legal visita-
tion, if the said judgments, decrees, and conclusions of the Visitors are correct
and proper either as to the professors acquitted or the professor convicted, they
are manifestly wrong as to the other or others, and the same are contradictory
and insensible; that the plaintiff, as charged with the duty of administering
the trust reposed in it, is left without light as to which judgments are correct,
or upon what principles the Visitors intend to declare that the trust as to said
foundations should be administered; and that, if the defendant Smyth has
violated his duties as professor, then the said defendants, Churchill, Tucker,
Harris, and Hincks have violated their duties as professors, and the plaintiff
ought not any longer to allow them to teach as professors in their respective
professorships, and ought not to pay them any salaries out of the funds apper-
taining to such professorships.
" Forty-second. And the plaintiff further says that, by reason of the matters
and things herein set forth, the proceedings of the Visitors, and their pretended
judgments, decrees, and conclusions herein set forth, if not inquired into by this
Honorable Court, but left to stand, will constitute a cloud upon the title of the
plaintiff to direct and manage the affairs of Phillips Academy, and render the
plaintiff uncertain as to its duties in the premises, and will greatly embarrass and
impede the plaintiff in the administration of the trusts as aforesaid confided to
it, and will expose the plaintiff to a multiplicity of suits, according as it takes
the one view or the other of its legal duty in the premises; and that it is imper-
atively demanded for the peace of Phillips Academy, and specially of the theo-
logical Seminary therein, and the due administration of the various charitable
trusts connected therewith and held by the plaintiff as trustee as aforesaid, that
the questions arising out of the matters and things hereinbefore set forth shall
be definitely adjudicated and settled by the decree of this Honorable Court in
the premises.
"Wherefore, the plaintiff prays this Honorable Court to instruct and inform
the plaintiff what authority and jurisdiction, if any, the Visitors have over the
defendants Smyth, Churchill, Tucker, Harris, and Hincks, or either of them;
whether the proceedings of the Visitors, and their judgments, decrees, and
THE ANDOVER PERIOD 207
Trustees further ask for such an interpretation of the
relative authority and functions of the two Boards as may
enable the administrative and visitatorial parts to act in
harmony, or if this be impracticable that the relation
between the two be modified or dissolved.
The counsel on either side employed in the trial before
the Visitors were retained for the trial before the Supreme
Court, with their positions reversed, and in behalf of the
Trustees Professor Gray, of the Harvard Law School,
George O. Shattuck, Esq., of Boston, and Judge Bishop,
a member of the Board of Trustees, were added. As the
bill of the Trustees involved a thorough investigation of the
law of Visitation, Judge Bishop went to England to make
a study of the law as applied to English institutions.
When the appeal of Professor Smyth and the bill of
complaint of the Trustees came before the Supreme Court,
it was necessary that two special hearings should be as-
signed by the court — one to secure a correct and com-
plete record of the proceedings of the Visitors in connection
with the "trial"; and one to secure the requisite testimony
relative to the charge against Dr. Eustis, Secretary of the
Board, of having through private and public utterances
at various times and places prejudiced the case. Justice
Allen was assigned to the hearing on the record of the Visi-
tors, and ex-Governor Robinson was assigned to take testi-
mony upon the charge of prejudgment against Dr. Eustis.
The two cases, which were practically merged in one,
conclusions herein set forth and referred to, or any of the same, are void; and
whether by reason of said judgments, decrees, and conclusions, or any of them,
the plaintiff ought to refrain from paying to the defendants Smyth, Churchill,
Tucker, Harris, and Hincks, or either of them, the income of the funds apper-
taining to the professorships respectively, in which they have been severally
inducted; and whether it ought to refuse the said defendants, or any of them,
leave to teach in their said respective professorships."
2o8 MY GENERATION
were nearly three years before the court. There were
several points at which a decision might have been ren-
dered, any one of which might have yielded the same
result. The point which the court chose was the refusal
of the Visitors to allow the Trustees to become a party to
the "trial." This refusal, in the judgment of the court,
was a fatal error on the part of the Visitors. "We are of
opinion," the court says, "that the action of the Vis-
itors was not in accordance with the statutes which they
were trying to maintain and that their decree must be set
aside." "It is inconceivable," the court had previously
said, "that a Board of Visitors intending to be governed
by principles of justice should for a moment think of
refusing the managing body a hearing in a case where the
proceedings are directly against it to set aside its action."
The opinion was written by Justice Knowlton and con-
curred in by Justices Allen, Holmes, Morton, Lathrop,
and Barker. Chief Justice Field dissented on the ground
that the decision did not reach the merits of the case. "I
refrain," he said, "from expressing any opinion on the
merits for the reason among others that there maj^ be a
new trial of the Complaint by the Visitors, and another
appeal to this court."
The decision was related more closely to the bill of the
Trustees than to the appeal of Professor Smyth, but the
hearing before ex-Governor Robinson on the competency
of Dr. Eustis to act as a judge established the fact by the
mouth of many witnesses that he had prejudged the case.
The effect of the decision, though reached through the
case of the Trustees, was to reinstate Professor Smyth in
his chair, as also to put certain limitations upon the power