In the matter of the complaint against Egbert C. Smyth and others, professors of the Theological Institution in Phillips Academy, Andover. The Andover defence. Defence of Professor Smyth, arguments of Professor Theodore W. Dwight [and others] together with the statements of Professors Tucker, Harris online

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X






/// the Matter of the Complaint against Egbert C. Smyth and

others, Professors of the Theological Institution in

Phillips Academy, Andover.



The Andover Defence.



DEFENCE OF PROFESSOR SMYTH; ARGUMENTS OF
PROFESSOR THEODORE W. DWIGHT, PROFESSOR
SIMEON E. BALDWIN, HON. CHARLES
THEODORE RUSSELL, AND EX-
GOVERNOR GASTON ;

EVIDENCE INTRODUCED BY THE RESPONDENTS;

Dec. 28, 2g, 30, 1886;

TOGETHER WITH

THE STATEMENTS OF PROFESSORS TUCKER, HARRIS,
HINCKS, AND CHURCHILL;

Jan. 3, 1887.



.5 <,>*'-•»



BOSTON :
CUPPLES, UPHAM, AND COMPANY,

Z\\t ©IB Corner J3oofestarE,

283 Washington Street.
1887.










h^



CONTENTS.



PAGE

I. Professor Dwight's Argument 5

II. Evidence introduced by Professor Baldwin . . 92

III. Professor Smyth's Defence 97

IV. Testimony of Newman Smyth, D.D. .... 181
V. Testimony of Professor Harris 184

VI. Testimony of Professor Hincks 187

VII. Testimony of Professor Tucker 189

VIII. Professor Baldwin's Argument 191

IX. Hon. Charles Theodore Russell's Argument . . 209

X. Ex-Gov. Gaston's Argument 256

XI, Statement of Professor Tucker 272

XII. Statement of Professor Harris 284

XIII. Statement of Professor Hincks 300

XIV. Statement of Professor Churchill .... 307



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1 > , ' 1) > J



Before the Board of Visitors. In the Matter of the Charges
against Egbert C. Smyth and others^ Professors^ etc.



PROFESSOR DWIGHT'S ARGUMENT.

To the Reverend and Honorable Board of Visitors of Andover
Theological Seminary :

This is an extraordinary case in many of its aspects. I
call your attention in the first place to the mode in which it
has been presented to your Board by the self-constituted
accusers of the Professors.

In doing this I refer to nothing outside of the papers be-
fore your Honorable Board.

Mode of Presenting the Case.

In a paper dated July 23, 1886, four gentlemen, viz., J. W.
Wellman, H. M. Dexter, O. T. Lanphear, and J. J. Blaisdell,
presented a paper to your Board making so-called " charges "
against five Professors in the Andover Theological Seminary,
whom they named. They stated in this paper that they
were constrained "from a sense of duty" to bring complaints
against Professors Smyth, Tucker, Churchill, Harris, and
Hincks. After setting tliese complaints out at some length,
one of them, J. W. Wellman, signed his name as trustee of
the seminary, and the others, viz., Messrs. Dexter, Lanphear,
and Blaisdell, signed their names as a " committee of certain
of the Alumni."

I do not propose now to speak of the intrinsic nature of
the charges themselves, on which comment and criticism



6

were made before your Honorable Board at a recent meeting
on October 25th. These gentlemen, however, under an order
or intimation made on November 8th by you, amended or
attempted to amend their complaint in a way hitherto unex-
ampled in legal practice, apparently dividing a joint com-
plaint into separate proceedings against each Professor.
What was, however, worse than all, they ceased to describe
themselves as a committee, and henceforward appear in their
own individual names by an attorney.

To this course of proceeding the Professors by their coun-
sel make and have constantly made strenuous objection. I
call particular attention now to the evidence of duplicity and
underhanded methods on the part of these complainants in
having with apparent untruth described themselves as a
*' Committee of the Alumni." The object of this description
apparentl}' was to gain a credit for their charges by appear-
ing to act in a representative character. There was in the
statement an implied suggestion of a meeting of certain
Alumni, by whom they were appointed a committee. This
number was shadowy and uncertain, it is true, but the state-
ment that there were Alumni behind them was calculated
and, it is believed, designed to make an impression upon the
community. As it now appears, these four men comprise all
the Trustees and all the Alumni who engineer this move-
ment. If three of these men are a committee at all, they
are self-appointed — "a committee of the whole." The men
asserted by implication to be behind them are " men in buck-
ram " — like the eleven of the immortal Falstaff, at one time
formidable in their indefiniteness, but now subsiding into
three. I say that for such conduct these signers have for-
feited the confidence of all candid, truth-speaking men, and
I add, with Prince Hal, " What slaves are ye to hack your
swords as ye have done and then say it was in fight ? What
trick, what device, what starting-hole can you now find out
to hide yourselves from this open and apparent shame?"
Conduct like this at the Bar would gain the scorn of the
legal profession. We believe that before your Board it will
receive the treatment it richly deserves.



It is unfortunate for the interests of the respondents that
in a tribunal like this there are no settled rules of practice.
We are driven to supposed analogies with other branches of
law more or less similar. The closest analogy seems to be
that of the practice in the English Ecclesiastical Courts, or
in Admiralty. In fact, Chief Justice Shaw, in Murdock v.
Phillips Academy^ 12 Pickering, 262, 263, refers to the rules
to be found in Burns' Ecclesiastical Law.

According to that case, these things must concur before
your Board ; " 1. A monition or citation of the party to ap-
pear. 2. A charge given to him which he is to answer, called
a libel or complaint. 3. A competent time assigned for the
proofs and answer. 4. A liberty for counsel to defend his
cause, and to except against the proofs and witnesses. 5. A
solemn sentence, after hearing all the proofs and answers."

There is absolutely wanting in the present instance the first
two of these. There has been no citation, and there is in the
•proper sense no libel. What we have to do with at the pres-
ent moment is the libel, or, in more ordinary language, the
complaint. This is vital, for in the same connection the court
in the case cited from Pickering's Reports says, on p. 263 :
" These rules indicate the course which must in substance be
pursued by everi/ tribunal acting judicially upon the rights of
others." And this remark, by the precise terms of the de-
cision, includes proceedings by the Boards of Andover Theo-
logical Seminary.

A " libel " implies three things : A plaintiff, or " promo-
ter ; " a statement of a cause of action, or ground of proceed-
ing ; and a defendant, or respondent. One of the fatal defects
in this proceeding is that there is no legal representative of
the interests adverse to the respondents.

To define a " libel " we turn to the source of information
indicated in the case in 12 Pickering, viz., Burns' Ecclesias-
tical Law : " A libel is a declaration or charge drawn up in
writing on the part of the plaintiff, unto which the defend-
ant is OBLIGED to answer." This statement of course im-
plies that there must be both plaintiff and defendant, and
that the latter is required by some rule of law to answer.



8

This is not a case in which your Board can proceed of its
own motion to a trial of the respondent.

There may be cases in which an ecclesiastical judge may
proceed ex officio. Burns, however, says that proceedings
which touch freehold, debt, trespass, and the like, concern
matters between party and party (Lond., 1797, 6th ed.).

There is substantially a freehold in the present case, as the
Professors hold office during life, and accordingly have a free-
hold or life interest in their office. This interest is pro-
nounced by the court in 7 Pickering, 330, 1st paragraph, to
be a " valuable property." Even if an ex-officio proceeding
were proper, it has not been resorted to in the present case.
The ordinar}' method of proceeding by parties has been se-
lected. But this theory is impossible, for these signers have
no interest in the matter and cannot possibly be parties
" aggrieved." If the case be wrongly conceived, the names
of the signers cannot be ignored.

But what is still more decisive is that an ex-officio proceed-
ing is solely applicable to a criminal case. The ecclesiastical
law follows the canon law in this respect ; and the bishop or
his official proceeds " from the mere office," induced by pub-
lic fame or the relation of credible persons to inquire into the
innocence or criminality of persons within his jurisdiction
(Browne on the Practice of the Ecclesiastical Courts, bound
up with Browne on the Civil and Admiralty Law, 1st Am.
ed., vol. i., pp. 502, 503).

The present case, however, is not to be* regarded as a
charge of crime. It has no resemblance to the ecclesiastical
case of deprivation. The object of " deprivation " was not
to unseat a person from a particular benefice, but to deprive
a clerical person of his office as minister. Loss of a particu-
lar benefice would follow, as well as incapacity to be admit-
ted to any other like position. When Chief Justice Shaw,
in 12 Pickering, 262, refers to "deprivation" in ecclesiastical
cases, it is only to show the necessary elements of any prose-
cution in a special tribunal like this, whether the proceeding
be criminal or civil. Moreover, "deprivation" before an
ecclesiastical tribunal is a breach of the law of England on



account of the relation of Church and State. It is termed
the "king's ecclesiastical law." There is no ecclesiastical
law in this sense in the United States.

The subject of " deprivation " in English ecclesiastical law
is treated with fulness in Godolphin's Abridgment of the Ec- .
clesiastical Laws, London, 1680, title Deprivation (p. 306).
He reduces all causes of deprivation to three : (1) want of
capacity; (2) contempt; (3) crime. The crimes are true
crimes in the ordinary sense of the criminal law, such as mur-
der, forgery, and the like, or the violation of some statute
prohibiting criminal acts. The proceeding in the present in-
stance is not for a crime in the domain of criminal law. It
is impossible for this Board to try a criminal case. At most,
this proceeding is for the violation of a trust, which by the
common law is not criminal, but only the subject of a civil
action. It has been declared by one of the signers to be a
scandalous violation of a public trust. It will be shown here-
after, if it be a valid trust, to be a charitable use or trust.
These trusts have for centuries been supervised, controlled,
and superintended in England by the High Court of Chan-
cery, as well as other courts having equitable powers. No
other court has assumed jurisdiction to superintend them or
to correct abuses in their management. All trust law origi-
nated with the Court of Chancery, and trusts still remain the
principal objects of chancery or equitable jurisdiction.

It is a mistake to suppose that your Honorable Board, if it
has original jurisdiction, represents simply the visitatorial
power of the common law. This is a statutory tribunal hav-
ing powers beyond those conceded to visitors at common
law. One very marked distinction between it and the com-
mon-law visitor is this : your decisions are reviewable on
appeal, while no appeal lies in the case of a visitor. His is
a domestic forum. He acts summarily. This is not the
case with you. You must follow rules ; you must conduct
yourselves as a court, for so the law of Massachusetts, as
expressed in the statute-book, as construed by the Supreme
Court in 12 Pickering, 262, has provided. Considered as a
court or legal tribunal, so far as you review the management



10

of trusts, your jurisdiction is in the nature of equitable
authority.

Now, it is perfectly well settled that the jurisdiction of
equity over trusts is in no respect criminal, but purely civil.
-A court of equity is not a criminal court. Its jurisdiction as
a whole is purely civil. It is a property court. Your power
to inquire into " heterodoxy " is not a general power extend-
ing to all trusts of a charitable nature. It is for the purpose
of determining whether the rules of a particular foundation
in Andover Seminary have been violated, and nothing more.
The creed which you examine need not be in itself a truly
Christian creed. It is not because it is Christian that you
are reviewing the conduct of the respondent. You are sit-
ting here because certain men having money at their com-
mand long ago concluded to make use of it in a special way,
and you are inquiring whether the trust that these men
now dead imposed upon the property, so far as it is lawful,
is being carried out faithfully by the beneficiaries. That is
a pure civil inquiry, in the same way as if the trust had been
for instruction in medicine or law. That would be so if a
court of equity in Massachusetts were to-day engaged in
doing the same thing that you are. Why should you be
regarded as holding a criminal court, when the Supreme
Court holding precisely the same inquiry for the same pur-
pose would be deemed to be holding a civil court?

I cite the following authorities to show that a court of
equity has no criminal jurisdiction: *

Attorney- General v. Utica Insurance Co., 2 Johns. Ch., 379.

Phillips v- Stone Mountain Railroad, 61 Ga., 386.

Life Association v. Beogher, 3 Mo. App., 173.

Davis V. American Society, 75 N. Y., 362.

Cohen v. Commissioners of Goldshoro, 77 N. C, 2.

Cope V. District Fair, 99 111., 489.

Moses V. Mobile, 52 Ala., 198.

Attorney- General v. Tudor Ice Co., 104 Mass., 239, 240.



11

Special reference is made to the case in 2 Johnson's Chan-
cery, and that of the Attorney- General v. Tudor Ice Co.y,
supra.

The first of these cases was decided at an early day by
Chancellor Kent while presiding in the New York Court of
Chancery. He says, on p. 378 of the report, "-if a charge be
of a criminal nature or an offence against the public, and
does not touch the enjoyment of property, it ought not to be
brought within the direct jurisdiction of this court, which
was intended to deal only with matters of civil right resting
in equity or where the remedy at law was not sufficiently
adequate." The Massachusetts case is still more emphatic.
The court said :

" This court, sitting in equity, does not administer punish-
ment or enforce forfeitures for transgression of law ; but its
jurisdiction is limited to the protection of civil rights, and to
cases in which adequate relief cannot be had on the common-
law side of the court or of the other courts of the common-
wealth " (p. 240).

The administration of trusts in equity is not, accordingly,
a criminal proceeding, though it may perhaps be held to
assume, as a matter of form, a criminal aspect in certain cases
prosecuted in the name of the Attorney-General. These
cases are very rare in Massachusetts, and do not include such
cases as the present (104 Mass., 239, 240, 244). The last
page cited is particularly in point.

No support can be derived for a criminal theory based on
the doctrines of an information in the nature of a quo war-
ranto. That is a proceeding in a court of common law (not
equity) to inquire by what warrant a person occupying an
office retains possession of it, and may in case of misconduct
result in forfeiture. It was originally inform a criminal pro-
ceeding, because if the office was forfeited a fine might be
inflicted. It is now unanimously recognized b}^ jurists as in
substance a civil proceeding, and has by statute been stripped
of all criminal aspect in a large number of the American
States as well as in England. (See, in England, 47 and 48
Vict., c. 61, § 15, where it is declared that proceedings in quo



12

warranto shall be deemed to be civil proceedings for all pur-
poses ; N. Y. Code of Oivil Procedure, § 1983, § 1990; fol-
lowed in many other States.) Moreover, there is nothing to
show in the amended complaint that the present proceeding
is to obtain the forfeiture of an office. The quo warranto^
too, is in the name of the commonwealth before a court of
criminal jurisdiction.

The result is that the present is a civil case, and that there
should be, as in all other civil cases, a true party to the
record, prosecuting it because he has some interest in the
subject-matter.

The course of proceeding, adopted in a New York case, has
been approved in an emphatic manner by the Supreme Judi-
cial Court of Massachusetts, in Murdoch v. Phillips Academy^
12 Pickering, 265. Reference is there made, with marked
approval, to the case of the Dutch Reformed Church in Alba-
ny V. Bradford^ 8 Cowen (N.Y.), 457. There the consistory^
consisting of the deacons and elders of a church, made a speci-
fic charge against their minister to the classis, the court hav-
ing original jurisdiction in such matters. The consistory, as
representing the church where the minister was serving, had
an interest in the question. It was in substance the same as
if the church itself had appeared as complainants, or much
the same as if in the present case the Trustees of Andover
Theological Seminary had in their official capacity presented
the case before your Honorable Board.

It ought never to be overlooked that the relation between
the Professors and Trustees of Andover Theological Semi-
nary originated in contract. It is not like the origin of title
to a public office, in which there is simply an appointment,
and in general no contract. How can a dissolution of a con-
tract justify a criminal proceeding? Suppose that a similar
contract had been made by a college where there was no
Board of Visitors, and dissolution of the contract was claimed
in the ordinary courts, would there be any criminal element
in the proceeding ? Even if the dissolution were for some
crime, the proceeding for dissolution would not be criminal,
but only for breach of contract.



13

There is nothing in the remarks of the Supreme Court in
the case of Murdoch, Appellant, etc., 7 Pickering, 330, opposed
to these views. The court at this point was discussing the
necessity of making the articles of charge definite and partic-
ular, and in enforcing tliat requirement remarked that, by
analogy to trials on criminal accusations in the courts of
justice and the principles of the constitution, no man can be
deprived of his office, which is a valuable property, without
having the offence with which he is charged "fully and
plainly, substantially and formally, described to him." This
remark is by no means equivalent to the assertion that a
proceeding before the Board of Visitors is a criminal pro-
ceeding. Criminal proceedings are referred to simplj'- as
sources of our ideas of justice, precisely as the reference in
the same breath is made to the principles of the State con-
stitution.

Moreover, the constitution of the State prevents you from
holding a criminal court. (See Art. 12.) This provides
that no person shall be deprived of his property or estate
except by the "judgment of his peers or the law of land."
This phrase is uniformly held to guarantee trial by jury in
criminal cases.

There should also be mentioned in this connection a most
serious practical objection to this proceeding, if it be right,
as we insist, to regard it as of a civil nature. Suppose that
this proceeding should not be successful, what is there to
prevent four other Alumni from instituting a similar proceed-
ing and treading the whole ground over again ? In regularly
instituted suits between proper parties a former judgment is a
bar to another original proceeding. This is one of the strong-
est reasons for having formal parties upon the records of the
court. But it is an inflexible condition of the application of
this rule that the parties should be the same. If four new
Alumni should proceed, the parties will not be the same, and
the respondent may thus be subjected to repeated litigations.
This tribunal should pause befoi-e it faces such consequences.



14



The Chaeges Considered.

I next proceed to consider the charges themselves.

As the matter now stands in the so-called amended com-
plaint, there is great uncertainty prejudicial to the defence of
the respondent. Does the old " complaint " remain? It is
not expressly disposed of. Is the new one valid? If sOjtwo
cases are pending before the same tribunal for the same
cause. This we have objected to, and the two cannot be
properly carried on together. Perhaps the amended com-
plaint is a substitute for the old one, and that the validity of
further proceedings must now be tested by that. We have a
right to demand that the court shall require an election by
the signers on which they will stand ; and we now demand it.

If the amended complaint be a substitute, we insist that it
was not competent for the signers to proceed as they have
done. They have apparently assumed to divide the former
joint proceeding into five separate proceedings. This cannot
be lawfully done. This rule has been applied in equity in a
case like the present, except that the names of the plaintiffs
were divided instead of the respondents. The court would
not hear the subdivided cases without the general consent of
all parties interested. Appleton v. Chapeltown Paper Co., 45
Law Journal, Ch., 276, decided by a great judge. Sir George
Jessel, Master of the Rolls. Instead of assenting to the
division in this case, the respondent has constantly objected.

But assuming for the moment that the original case can be
split into five separate proceedings against the will of the
respondents, and that it has been successfully divided, I now
reach the amended complaint considered as to its subject-
matter, and insist that several cardinal rules of pleading are
violated.

Violation of Rules of Pleading as to Subject-
matter.

I. The first three charges are without specifications. They
are mere conclusions of law instead of statements of fact ; or
it may be said that they are mere inferences of the signers,



15

witlioiit giving any facts from which the inferences are de-
rived. It is true that the expression " hereinafter enume-
rated " is used in each case, but that is not enough. Accord-
ingly, the words " hereinafter enumerated " in each of the
first three charges must be confined to what is set forth in
each charge by itself. The result as to these is that there are
no specifications as to those charges. There is no enumera-
tion in connection with the charge. It is required by the sim-
plest rules of pleading that each charge should be complete
in itself (Gould on Pleading, c. iv., sec. 3). The rule is
there stated in this form : " In all cases in which there are
two or more counts, whether there is actually but one cause
of action or several, each count purports itpow the face of it to
disclose a distinct right of action, unconnected with that

STATED IN ANY OF THE OTHER COUNTS ; SO that upon the

face of the declaration there appear to be as many different
causes of action as there are counts inserted " (4th ed., by
George Gould, 1861).

Moreover, if each of the charges is distinct, it is impossi-
ble and absurd to assume that the same specifications and
quotations from the writings of the Professors will prove
each. If the charges are not distinct, but are mere idle rep-
etitions, then the first three ought to be stricken out, and
we ought to be relieved from the trouble and expense of
contesting them.

II. If, however, the fourth charge, with its specifications,
be not obnoxious to any criticism of indefiniteness of a vital
nature (as we contend that it is), still it is clear that no offence
is charged of which this Board has original jurisdiction, even
though it be assumed that in certain cases the Board pos-
sesses such jurisdiction. It is not one of the cases specified
in the article from which original jurisdiction is assumed to
be derived.

The distinction between the plain original jurisdiction of
the Trustees and the assumed jurisdiction of this Board I
now place in view by extracts from the statutes. Article 14
of the Constitution of the Theological Seminary provides
that a professor may be removed by the Trustees " for gross



IG

neglect of duty, scandalous immorality, mental incapacity, or
any other just and sufficient cause." Article 20 of the stat-
utes concerning the Associate Foundation confers whatever
power of removal is vested in the Board of Visitors, in the
following words, "to remove him (a professor), either for
misbehavior, heterodoxy, incapacity, or neglect of the duties
of his office." A glance will show that the power of the
Trustees is broad and wide, while that of the Visitors is spe-
cific and restricted. Of the four instances named, only one