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Full text of "Annual Meeting, April, 1916. Gifts to the Society; Report of the Council; Report of the Treasurer; Report of the Librarian; Report on the Library and Cabinet; The Old Jury; Two Grant Letters; Convicts for Transportation; Edward Henry Strobel"

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1916.] GIFTS TO THE SOCIETY. 287 



ANNUAL MEETING, APRIL, 1916. 

THE Annual Meeting was held on Thursday, the 13th in- 
stant, at three o'clock, p. m. The President and both 
Vice-Presidents being absent, the Society was called to order by 
the Recording Secretary, and Mr. Arthur Lord was chosen 
President pro tempore. 

The record of the last meeting was read and approved; and 
the Librarian read the list of donors to the Library during the 
past month. 
The Cabinet-Keeper reported gifts as follows: 

Portrait of Mrs. William Minns, of Boston, by Ethan Allen 
Greenwood; a portrait of Miss Jane Clark, daughter of Jona- 
than Clark, who married John Lewis, attributed to Hogarth, 
London, 1739, and which was brought to Groton, Mass., by 
her son Jonathan Clark Lewis; a portrait said to be of Fouc- 
quet; a painting, "The Vidette," by Grolleron, and an engrav- 
ing of Foucquet, by Nanteuil, 1661, from Miss Susan Minns; 
photograph of a portrait of James Lloyd, from Henry Cabot 
Lodge; photograph of Prof. George Martin Lane, about 1858, 
from Charles C. Smith; photograph of the capitol, Atlanta, 
Georgia, a lithograph of Libby Prison, 1863, seven wooden 
medallions of the Centennial Exposition, Philadelphia, 1876, 
six of the Chicago Exposition, 1893, the Liberty Bell Medal, 
and a Russian 3^ kopeck, from Grenville H. Norcross; fifteen 
engravings of American generals and views, from Edwin H. 
Brigham; an English poster of the present war, from Henry 
H. Edes; a medallion of Washington Irving, by the St. Nicholas 
Society, New York, 1907, from Charles P. Greenough; Bow- 
doin College Phi Beta Kappa medals of Dr. David Humphreys 
Storer (class of 1822), from Miss A. M. Storer; medal of the 
Fusileer Veteran Association, from Capt. E. S. Anderson; the 
bronze Harvard-Pasteur medal, from Baron Pierre de Cou- 
bertin, of Paris, France; and a photograph of a portrait of 
James Lloyd, owned by Mr. William A. Jeffries, of Boston, and 
sixty-seven medals, store-cards, and badges, by purchase. 



288 MASSACHUSETTS HISTORICAL SOCIETY. [APEIL, 

The Corresponding Secretary reported the receipt of a letter 
from Charles Edwards Park accepting his election as a Resident 
Member of the Society. He also reported the receipt of a letter 
from the New Jersey Historical Society inviting the Society to 
send a delegate to the 250th anniversary of the founding of 
Newark on May 1. It was voted that the selection of a delegate 
be left with the President pro tempore. 

The Editor said: 

A year ago I announced an important gift from Mr. William 
V. Kellen, of photographs of some six thousand documents in 
the State Archives bearing dates in the seventeenth century, and 
commented upon its great utility in supplementing original 
papers in the collections of the Society. I now record a like 
accession of photographic reproductions, being about a thou- 
sand pieces contained in the private collection of Mr. Charles 
P. Greenough. The privilege, generously accorded, of using 
in this manner the Massachusetts material in his gatherings of 
a lifetime gives to the Society copies of many interesting his- 
torical documents and of much that is curious and personal 
in illustration of our annals. While the wish may be ex- 
pressed that a part of the originals may eventually come into 
the safekeeping of a public institution in Massachusetts, 
these reproductions will at least preserve a record of them in 
a form serviceable to all interested. 

The Editor also reported the following gifts: 

From the Most Worshipful Grand Lodge of Ancient Free and 
Accepted Masons of the Commonwealth of Massachusetts, 
through Mr. Melville M. Johnson, Grand Master, the Journal 
of Samuel Grant, merchant in Boston, from November 25, 1728, 
to December 31, 1737, containing 637 pages; and the Journal 
of a shipping and merchandise firm in Boston, as yet unidenti- 
fied, running from May 2, 1763, to July 11, 1766, 440 pages. 
Unfortunately the first thirteen pages and some at the back of 
the volume have been lost. Mr. Johnson writes in his letter of 
gift: " These books contain frequent reference to men who were 
Freemasons, but they have a much wider interest, and it has 
seemed to me that they would be of more value in your library 
than upon our files. We therefore take pleasure in presenting 
these books to the Massachusetts Historical Society." 



1916.] GIFTS TO THE SOCIETY. 289 

Samuel Grant is said to have been born in 1704. 1 He is 
known to have had a store in Union Street as early as 1736, 
known as the "Crown and Cushion," and lived in the rear of 
the store. He died November 14, 1784. He subscribed £50 
in 1748 to promote the linen manufacture, 2 and he was one of 
three to whom John Ellery (1712-1746), of Hartford, left £200, 
"to be disposed of in pious and charitable uses as they should 
think would most redound to the glory of God." 3 He married, 
January 1, 1729, Elizabeth Cookson, 4 probably daughter of 
John Cookson. Mr. Grant bought in 1739 a dwelling house 
on Union Street, corner of Scott's Court (Friend Street), and in 
1744 received from John Cookson a "wooden tenement" ad- 
joining his property. His daughter, Elizabeth, married John 
Simpkins, August 30, 1764. A son Moses is frequently men- 
tioned in the town records. 

Mr. Johnson has also permitted the Society to retain a copy 
of a manuscript record of twenty-five pages of the first Provin- 
cial Lodge of Free-Masons in America, established at Boston, 
July 30, a. m. 5733 [1733]. This interesting record, in the writ- 
ing of Francis Beteilhe, the secretary of the Lodge, contains 
the application for and the establishment of the Lodge, its 
by-laws, its members, votes, etc., to 1736. It was bound with 
Franklin's issue of The Constitutions of the Free-Masons, 1734, 
one of the rarest of his imprints. When this volume was sold 
in the Brinley library, in 1880, the manuscript was erroneously 
believed to be that of Franklin. 

From Mr. Edward Gray, of Milton, letters and log-books of 
a voyage from Boston to Canton, China (1843), Hong Kong to 
Manila and return to Macao (1843), and from Canton to 
New York (1844), kept by Horace C. Story (1823-1847), a son 
of Franklin H. Story, and nephew of Justice Joseph Story. 

From the Dedham Historical Society, a manuscript copy (on 
paper with water mark " 1815 ") of the constitution of the 
Washington Benevolent Society for the county of Worcester, 
Mass., society formed in 1813. 5 

1 The Boston Rec. Com,, xxiv. 39, mentions the birth of a Samuel, son of Joseph 
and Mary Grant, October 13, 1705. 

2 N. E. Hist. Gen. Reg., xvi. 91; xliv. 324. 
8 lb., XLm. 314. 

4 Boston Rec. Com., xxvm. 149. 
6 See p. 285 n., supra. 



29O MASSACHUSETTS HISTORICAL SOCIETY. [APRIL, 

From H. de F. Lockwood, of Boston, a number of papers of 
the Low family, of Wells, York County, Maine, comprising 
deeds, commissions and notes. 

From Grace Williamson Edes (Mrs. Henry H. Edes), British 
letters patent issued in 1874 to Alexander Melville Clark, of 
London, covering improvements in automatic chemical tele- 
graphs; together with a transfer, dated 1875, of all his rights 
by Clark to William Edward Sawyer of Washington, D. C. 
The great seal is perfect, being enclosed in a tin box, and the 
papers in the usual shagreen box. A similar document is framed 
and hung in the Patent Room, Boston Public Library. 

From Francis J. Garrison, a letter from a professional slave- 
catcher of Carlisle, Pa., as follows: 

Carlisle, [Pa.,] March 25th, 1856. 

Friend Seed, — Dear Sir. I Received your Dispatch you want 
to know if it will Pay. i say yes it will Pay $40.00 any how and 
probly more Mr Fieny wants them caught Bad. 

he Lives in Clear Spring M. D. they lost them in Harrisburg. 
they say that the intention of the Blacks ware to go to Philadelphia, 
i cannot give you an acarate Discription of em i have not got the 
Bill yet But will send it asson as i get it. there are three men one 
Slave woman and one free woman in the Party and 2 children the 
[one] at the Breast and the other older, the one man has on a Brawn 
Coat and Black hat hair long curled under the 2 children Light 
Molotta if you find them Just Spot them and let me know and i 
will Fetch the master on with me we can make a good thing of it 

You will get more Particluars when i get them Yours truly 

Joseph Stuart. 

Thomas Russell Sullivan, of Boston, was elected a Resident 
Member of the Society; and George Macaulay Trevelyan, of 
England, a Corresponding Member. 

The chairman announced the death of James Burrill Angell, 
a Corresponding Member. 

The Society then proceeded with the business of the Annual 
Meeting. The Recording Secretary read the following report, 
prepared by the senior Member-at-Large of the Council, Mr. 
Charles P. Greenough, who was absent. 



1916.] REPORT OF THE COUNCIL. 291 



Report of the Council. 

The meeting commemorative of our late President, Charles 
Francis Adams, was held by the Society in the First Church in 
Boston, on the afternoon of November 17. The memorial ad- 
dress was made by Hon. Henry Cabot Lodge, the invocation 
by Rev. George Angier Gordon, and the benediction by Rev. 
Charles Edwards Park. The church was filled in every part, 
and the occasion was marked by great dignity, simplicity and 
impressiveness. 

The Society also lost by death its second Vice-President, 
Hon. John D. Long. 

The Society closes another year — its one hundred and 
twenty-fifth — in full confidence of maintaining its position as 
a depository of historical records and of continuing its publica- 
tions of material in a manner most useful to the historian. Its 
collections have increased by gift and by purchase. Additions 
have been made to its files of Massachusetts newspapers of the 
colonial period, and the acquisition of an almost complete file 
of the Portsmouth (N. H.) Oracle, 1793-1901, gives it a good 
political record of a sister New England State for that period. 
By confining its attention to early Massachusetts newspapers 
it competes less with libraries buying more generally in time 
and in space; and this concentration enables it to obtain what 
would otherwise be scattered in a number of institutions. In 
its peculiar field of collecting — manuscripts — the Society 
has gained by gifts. The notable Lopez-Ayrault-Champlin 
collection, presented by a corresponding member, Hon. George 
Peabody Wetmore; the papers of Charles Deane, given by his 
children, and the photostatic reproductions of the early docu- 
ments and letters in the State Archives, presented by Mr. 
Kellen, may be named. The total comprises thousands of 
pieces of historical interest, increasing the value of the material 
already in the Society by much more than mere numbers indi- 
cate. During the coming year it is expected that a list of the 
larger collections will be prepared, not by individual pieces but 
as collections, to serve as a general guide to what is in our pos- 
session. It is safe to say that nowhere in New England does 
there exist so large and so rich an aggregation of colonial papers 



292 MASSACHUSETTS HISTORICAL SOCIETY. [APRIL, 

of a historical character, not even in the combined archives of 
the New England States. 

The Society has issued during the year a volume of Proceedings 
(xLvni in the series) and the second volume of the Commerce 
of Rhode Island, 1775-1800. This latter volume, closing the 
Seventh Series (vol. lxx), was printed through the generosity of 
Senator Wetmore. It did not contain the customary index of 
the ten volumes in the Seventh Series, as the reason for such an 
index passed with the elaborate indexing of individual volumes, 
but little related to one another in contents. In the coming 
year it is planned to issue a volume of Proceedings, and one of 
Collections, being the "Adams-Warren letters," a correspond- 
ence between John Adams and James Warren during the War 
for Independence. The late Mr. Frederick L. Gay had arranged 
to share the expense of a volume on Captain William Phips's 
search for treasure in the Bahamas, the material for which 
would come from his rich collection of transcripts from British 
sources. This arrangement will be carried into effect, Mrs. 
Gay having generously expressed such a wish. 

Mention should be made of the Autobiography of Charles 
Francis Adams, prepared in the latter years of his life to serve 
as the material for a memoir, and left to the Society with full 
powers of publication. The character of the work demanded 
something more than a publication in the Collections of the 
Society, and it has appeared through the publishing house of 
Houghton Mifflin Company, but in a form which enables it to 
be placed with the issues of the Society. The volume also in- 
cluded Mr. Lodge's memorial address. 

The photostat has been in constant use during the year and 
is justifying the expense involved. The number of prints 
taken in the twelve months was 20,000, and had a wide distri- 
bution. The reproduction of the Boston News-Letter has now 
been carried to the end of 1714, giving ten years of the first 
newspaper to be regularly issued in an English colony in North 
America. The 436 numbers reproduced include every known 
issue of the journal and sets have been placed in subscribing 
institutions. This rich material is made available for the first 
time to Massachusetts as well as Wisconsin and Washington 
(D. C). It is the intention to continue the reproduction in the 
coming year so as to carry it to the end of 1726. 



igi6.] REPORT OF THE COUNCIL. 293 

The Society has also reproduced its unique file of the Georgia 
Gazette, from No. 1, April 7, 1763, to No. 346, May 23, 1773, 
upwards of 1450 pages. The two series of newspapers reproduced 
comprise a total of 782 issues, an achievement in itself worthy 
of notice. For the first time so long a series of colonial news- 
papers has been reproduced by any process, the most exten- 
sive undertakings of the past being four years of the American 
Weekly Mercury (Philadelphia, 17 19-1723) and the Newport 
Mercury, begun by the John Carter Brown Library. What this 
Society has already accomplished in this direction thus gives 
it a position in the very front. 

The Society has gained by the instrument in photostats of 
broadsides, manuscripts and newspapers needed to complete 
its collections, and arrangements for exchanging material are 
being extended wherever an opportunity is offered. From the 
New York Historical Society were obtained prints of all the 
Massachusetts broadsides in its collections, and from Mr. Wen- 
dell prints of an important collection of Wendell-Quincy letters 
temporarily in his custody. The records of the Lincolnshire 
Company (in what is now Maine), 1720-1785, have also been 
secured in this form, as well as some thousand individual pieces 
from various sources. Missing pages and even an entire number 
of a serial publication have been reproduced to complete im- 
perfect volumes or series. The difficulty lies more in meeting 
the demands made upon the instrument and its operator than 
in discovering objects worthy of the attention of the Society. 

For the advantage is not confined to the Society. The nota- 
ble achievement of Dr. Charles L. Nichols, of Worcester, in 
assembling negatives of sixty-five almanacs printed in Massa- 
chusetts before 1700, enabled him to offer sets in photostatic 
form to libraries. The printing was done in this Society, and 
with .creditable results. The success of this undertaking opens 
a field for like series of related issues of the colonial press, great 
rarities, often existing in a single known copy. Much has also 
been done on orders from other parts of the country, even from 
California, for the reproduction of books, essays, prints, maps, 
manuscript and broadsides needed by scholars, collectors and 
investigators. This service is of the best, for it removes the risk 
of total loss should accident befall a unique original, and it 
enables any individual or institution to obtain the second best 



294 MASSACHUSETTS HISTORICAL SOCIETY. [April, 

form of the subject — a photographic reproduction, at a low 
cost. 

The war has made itself felt in this field of the Society's ac- 
tivities, for the situation in the chemical industry has compelled 
a resort to substitutes of less efficiency and greatly increased 
cost. These difficulties are being met so far as is possible with 
the expert operation of the machine, but it is at an increased 
expense in money and in waste of material. The Society has 
received from the manufacturers every facility for solving the 
problems thus entailed, and hope is expressed of an end to them 
in the current year. 

In the matter of collecting, the Society maintains its recog- 
nized policy. Receptive to what comes to it by gift, it seeks to 
complete its holdings by purchase, but without coming into 
competition with other institutions or catering to inflated values 
prevalent in the book markets. It has no jealousy of the growth 
of other libraries and collections, for the time is past when 
such a feeling can be justified. The liberal management of the 
present day places at its call the best that can be found in 
public and private possession, and this mutual aid and good 
understanding bear fruit to all concerned. The Society seeks 
to make what it has of service to the public, and no material is 
sealed except when deposited for safe-keeping and the owners 
insist upon such a restriction. Its photostat serves the public 
before meeting its own demands and the quality of service is 
gained at its own expense. In this consists the Society's tribute 
to scholarship and investigation, which it can well afford to pay. 
It is gathering a library of historical publications, limited in 
scope but supplemented by its manuscript wealth. The refer- 
ence library has been materially strengthened. 

The want of space is a problem of increasing moment and can 
only be solved in a satisfactory manner by the construction of 
stacks on the unoccupied lot owned by the Society. There are 
no spaces available for new shelving, such necessities as map 
and print cases can find no location, and the walls offer little for 
paintings. The weight upon the upper story cannot be increased 
with safety to the building, and the cellar space is fully utilized. 
There is no room for receiving and assorting material, and the 
catalogue case is as full as its antique and awkward shape and 
location permit. The want of a reading and consulting room, 



igi6.] REPORT OF THE TREASURER. 295 

properly furnished and lighted, is also to be noted as among the 
desirables. There is not a reader's table in the whole building, 
and there is no room in which a student may be placed where he 
will be assured from noise and interruption. It is a curious 
situation, in which the Society serves the outsider better than 
it does its members. The inquirer who is not a member has 
every facility for seeing what he wants and of using the various 
collections freely. There is little to tempt members to frequent 
the rooms and indulge their taste in reading or study. A 
quasi-public institution, its public functions and services are 
greater than those of a private nature. 

The Society is not in a position to beg, but it is always so 
placed that it can use larger funds than are now available. . The 
gaps in its collections, the large quantity of unbound material, 
printed and manuscript, the reproduction of rarities when an 
unusual opportunity occurs, the sharing of its advantages with 
other institutions, its coins and pictures, and its publications — 
all make demands upon the income of the Society, and almost 
any one item named will give a field for useful expenditure be- 
yond the sum now assigned to it. Then there is the future 
question of enlarging the building by an already much needed 
book stack and portrait gallery. At some time in the near 
future the larger wants will be met, and present aid, however 
moderate, will help to meet the situation. To the liberality of 
members and to a wise management of the funds in the past the 
Society owes its present strong position. No reason exists for 
not expecting a like generosity and good management in the 
future, and upon a still larger scale. 

Report or the Treasurer. 

In presenting his annual report on the finances of the Society 
Mr. Lord said: 

I desire to make a brief statement of the financial condition 
of the Society, supplementing what is set forth in detail in the 
Treasurer's report submitted in print to-day. 

The property of the Society other than its Books and Collec- 
tions may be divided conveniently as follows: 

1. The Land and Buildings, which stand on the books at 
$97,990.32 and are valued by the City Assessors at $196,000. 



296 MASSACHUSETTS HISTORICAL SOCIETY. [APRIL, 

2. The Investments of the Society are carried on the books, 
as appears in the Investment Account, Exhibit I of the Treas- 
urer's Report, at $482,326.39. Of this sum the two centenary 
funds amount to $69,320.18, of which amount $63,800.98 is the 
principal of theSibley Centenary Fund and$5, 519.20 the Anony- 
mous Fund. Under the terms of the bequests the income of 
these funds must be added to the principal until the expiration 
of one hundred years from their receipt, or, in the case of the 
Sibley Centenary Fund, the year 2002, and in the case of the 
Anonymous Fund, the year 1991. 

The gross income of the Society from all sources the past 
year was $32,040.93, of which $24,774.35 was the income of the 
invested funds. From this gross income must be deducted the 
income of the two centenary funds, which under the terms of 
the gifts are to be added annually to the principal, amounting to 
$3,300.96, and leaving a balance of income available for all 
purposes of $28,739.97. 

The expenditures were $27,344.89, leaving a balance of in- 
come over expenditures for the year of $1,395.08. The Society 
has received no money gift or bequest during the past year. 

The expenses of operating the photostat during the year 
were $3,326, and the sale of copies of manuscripts and news- 
papers was $2,871 — an apparent deficit of $455. The Society 
has, however, gained largely in prints for its own collections, 
to the number of some thousands. 

REPORT. 

In compliance with the requirements of the By-Laws, Chap- 
ter VII., Article 2, the Treasurer respectfully submits his 
Annual Report, made up to March 31, 1916. 

The special funds now held by the Treasurer are thirty in 
number. A list of these funds, with the income and expendi- 
ture of each fund the past year, appears in Exhibit V in this 
report. An account of twenty-nine of these funds, giving a 
brief history of each fund, will be found in the Treasurer's 
Report for the year ending March 31, 1910 (Proceedings, 
xlhi. 529); the thirtieth is described in the Treasurer's Re- 
port for the year ending March 31, 191 1 (Proceedings, xliv. 
568). The securities held by the Treasurer as investments 
on account of the above-mentioned funds are as follows: 



I9i6.] 



REPORT OF THE TREASURER. 



297 



INVESTMENTS. 



Schedule of Bonds. 



Chicago & West Michigan R. R. Co. 

Chicago & North Michigan R. R. Co. 

Rio Grande Western R. R. Co. 

Cincinnati, Dayton & Ironton R. R. 

Atchison, Topeka & Santa F€ R. R. 

Atchison, Topeka & Santa F6 R. R. 

Chicago Jet. & Union Stock Yards 

Oregon Short Line R. R. Co. 

Oregon Short Line R. R. Co. 

Boston & Maine R. R. Co. 

American Tel. & Tel. Co. 

Northern Pacific & Gt. Northern R. R. 

Long Island R. R. Co. 

New York Central & Hudson River R. R. 

Bangor & Aroostook R. R. Co. 

Detroit, Grand Rapids & Western R. R. 

Fitchburg R. R. Co. 

Kansas City, Clinton & Springfield R. R. 

Lowell, Lawrence & Haverhill St. R. R. 

Washington Water Power Co. 

United Electric Securities 

Blackstone Valley Gas & Elec. Co. 

Western Tel. & Tel. Co. 

Seattle Electric Co. 

Detroit Edison Co. 

U. S. Steel Corporation 

Boston Elevated Railway 

New England Tel. & Tel. Co. 

Connecticut Power Co. 

Boston & Albany R. R. 

Cleveland Short Line R. R. 

Arlington Gas Light Co. 

United Elec, Lt. & Power Co. 

Wilmington City Electric Co. 

City of New York 

City of Cleveland 

Old Colony Gas Co. 

Dedham Water Co. 

United Zinc & Chemical Co. 

(with 60 shares pfd., and 60 common) 



5% 


1921 


$14,000.00 


5% 


193 1 


1,000.00 


4% 


1939 


5,000.00 


S% 


1941 


5,000.00 


4% 


1995 


14,500.00 


4% 


1995 "adjustment 5 


" 9,000.00 


5% 


1940 


10,000.00 


5% 


1946 


10,000.00 


4% 


1929 


10,000.00 


4i% 


1944 


6,000.00 


4% 


1929 


10,000.00 


4% 


19 2 1 "joint" 


50,000.00 


4% 


1949 


6,000.00 


4% 


1934 


15,000.00 


4% 


195 1 


10,000.00 


4% 


1946 


2,000.00 


4% 


1927 


9,000.00 


5% 


1925 


3,000.00 


5% 


1923 


2,000.00 


5% 


1939 


10,000.00 


5% 




25,000.00 


S% 


1939 


10,000.00 


5% 


1932 


5,000.00 


5% 


1929 


5,000.00 


5% 


1933 


5,000.00 


S% 


1963 


5,000.00 


5% 


1942 


8,000.00 


S% 


1932 


10,000.00 


5% 


1963 


10,000.00 


5% 


1938 


10,000.00 


4i% 


1961 


10,000.00 


5% 


1927 


10,000.00 


4i% 


1929 


10,000.00 


5% 


1951 


5,000.00 


6% 


1916-17 


5,000.00 


5% 


1917 


8,000.00 


5% 


193 1 


5,000.00 


S% 


1935 


5,000.00 


5% 


1928 

Par value 


30,000.00 




$382,500.00 



298 MASSACHUSETTS HISTORICAL SOCIETY. [APRIL, 



Schedule of Stocks. 

50 Merchants National Bank, Boston $5,000.00 

50 National Union Bank, Boston 5,000.00 

50 Second National Bank, Boston 5,000.00 

50 National Shawmut Bank, Boston 5,000.00 

35 Boston & Albany R. R. Co 3,500.00 

25 Old Colony R. R. Co 2,500.00 

25 Fitchburg R. R. Co. Pfd 2,500.00 

150 Chicago Jet. Rys. & Union Stock Yards Co. Pfd 15,000.00 

75 American Smelting & Refining Co. Pfd * 7,500.00 

158 Atchison, Topeka & Santa F6 R. R. Co. Pfd 15,800.00 

302 Kansas City Stock Yards Co. Pfd 30,200.00 

10 Cincinnati Gas & Electric Co 1,000.00 

6 Boston Real Estate Trust 6,000.00 

5 State Street Exchange 500.00 

120 Pacific Mills 12,000.00 

52 Puget Sound Traction Light and Power Co. Pfd 5,200.00 

5 " " " " " " " Common . . . 500.00 

50 American Telephone & Telegraph Co 5,000.00 

1218 Shares Par value $127,200.00 



Schedule of Savings Bank Books. 

M. A. Parker Fund $1,214.73 

Brattle St. Church Model Fund 211.35 

$1,426.08 



Recapitulation. 

Bonds, par value $382,500.00 

Stocks, par value 127,200.00 

Savings Bank Books 1,426.08 



$511,126.08 
Represented by Balance, Investment account $482,326.39 

The balance sheet follows and shows the present condition 
of the several accounts: 



1916.] 



REPORT OF THE TREASURER. 



2Q9 



Balance Sheet, March 31, 1916. 



Investment Account, 

Exhibit I 

Cash on hand, Exhibit II 



Funds, Exhibit III . . . $443,190.83 
82,326.39 Accumulated Income of 
9,688.25 Funds, Exhibit IV . . . 48,823.81 

$492,014.64 



$492,014.64 



EXHIBIT I. 



Investment Account. 

Balance April 1, 1915 $480,817.22 

Bought during year: 

$10,000 Chicago Jet. & Union Stock Yards, 5%, 

1940 $9»9i9-44 

5,000 Dedham Water Co., 1st Mortgage, 5% 1935 5,050-00 

50 Shares American Tel. & Tel. Co 6,400.00 

Accrued Interest M. A. Parker Savings Bank Book . 47-M 

" " Brattle St. Church Model Bank Book . 8.20 

Total Additions , Exhibit II 



21,424.78 
$502,242.00 



Securities matured, etc.: 

$13,000 Chicago Jet. & Union Stock Yards 

6,000 West End Street Railway Co. . 

Liquidation State National Bank . . . 

" National Bank of Commerce 

Total Deduction, Exhibit II . . . 



$13,051.61 

6,000.00 

145.00 

719.00 



19,915.61 
Balance, March 31, 1916 $482,326.39 



300 MASSACHUSETTS HISTORICAL SOCIETY. [APRIL, 

EXHIBIT IL 
Cash Account. 

Balance on hand, April i, 1915 $6,501.38 

Receipts during year to March 31, 1916: 

Sales by Library: 

Publications $848.35 

Photostat 2,871.42 

Duplicates 3*253.64 

Bindery 69.25 

Royalties, Little, Brown & Co 9.88 $7,052.54 

Rebates .60 

Credited to General Fund Income 7*053.14 

Interest on Bank Balances 213.44 

" on Savings Bank Books 55-34 

Income from Investments 24,719.01 

Total 24,987.79 

Total credited to Income of Funds, Exhibit V 32,040.93 

Securities matured, etc 19,915.61 

$58,457.92 
Charges during year to March 31, 1916: 

Investment Account, Securities bought $21,369.44 

Savings Bank Interest 55-34 

Total additions, Exhibit I $21,424.78 

Income Account: 

Bindery, Wages $1,143.02 

Supplies 272.35 $1,415.37 

Binding, outside 178.70 

Books, Pamphlets, Newspapers, and Mss. 2,306.34 
Building: 

Cleaning $324.60 

Engineer . 1,046.54 

Fuel 525.00 

Furniture 146.15 

Insurance 1,050.00 

Light 251.61 

Repairs 966.02 

Telephone 106.53 4,416.45 

Photostat 1 3,326.33 

Portraits and Medals 265.02 

Postage 144.04 



Carry forward $12,052.25 $21,424.78 $58,457,92 

1 For receipts, see above. 



1916.] REPORT OF THE TREASURER. 301 

Cash Account — Continued. 

Brought forward $12,052.25 $21,424.78 $58,457-02 

Printing: 
Proceedings, vol. 48 ... . $1,530.31 

" " 49 • • • . 470.17 

Illustrations and Reprints 582.50 
Collections: 

Rhode Island Commerce . 147.71 

Sibley's Harv. Grad. IV . 187.00 

Phips Volume 2.29 2,919.98 

Miscellaneous 231.25 

Salaries: 
Librarian's Assistants . . . $4,537.00 
Editor and Assistant . . . 6,080.00 10,617.00 

Stationery • . . . 90.10 

Treasurer's office: 

Bond $25.00 

Bookkeeper 600.00 

Safety Vault 50.00 

Certified Public Accountant 25.00 700.00 

Miscellaneous, 
Insurance, Employers Liability $60.40 
American Bibliography . . . 100.00 

Memorial Meeting 109.17 

Other Expenses 464.74 734-31 

Charged Income of Funds, Exhibit V . 27,344.89 

Total Payments 48,769.67 

Balance on hand, March 31, 1916 $9,688.25 



302 MASSACHUSETTS HISTORICAL SOCIETY. [APRIL, 

EXHIBIT III. 
Increase of Funds in Year 1915-1916. 

Amount of Funds, April 1, 191 5 $439*889.87 

Added during year: 
Additions to Centenary Funds: 

Anonymous Fund $262.82 

J. L. Sibley Fund 3»°38.i4 3,3oo-o6 

Total of Funds, March 31, 1916 $443,190.83 



EXHIBIT IV. 

Accumulated Income of Funds. 

Balance Accumulated Income, April 1, 1915 . $47,428.73 

Income during year, Exhibit II 32,040.93 

$79,469.66 
Expenditures, Exhibit II 27,344.89 

$52,124.77 
Less additions to Centenary Funds 3*300.96 

Balance, March 31, 1916 $48,823.81 



1916.] 



REPORT OF THE TREASURER. 



303 



EXHIBIT V. 






Income and Expenditures of Funds for the 


Year Ending 


March 31, 1916. 








Balance 


Income 


Expendi- 


Balance 


Principal 




Mar.31/15 


tures 


Mar.3i,'i6 


of Funds 


Amory 


$1,914.90 


$174.10 


$145.00 


$1,944.00 


$3,000.00 


Appleton . . . 








6,423.71 


708.21 


1,080.00 


6,051.92 


12,203.00 


Bigelow . . . 








S9i-8i 


116.07 


121.25 


586.63 


2,000.00 


Billings . . . 








3,127.92 


580.35 


558.77 


3,i49.5o 


10,000.00 


Brattle St. . . 








103.15 


8.20 




111.35 


100.00 


Chamberlain . 








91.19 


70.49 


76.70 


84.98 


1,232.33 


Dowse .... 








4.70 


580.35 


585.00 


.05 


10,000.00 


Ellis 








64.12 


i,837.73 


1,870.05 


31-80 


31,666.66 


Frothingham . 








2,707.87 


174.10 


175.00 


2,706.97 


3,000.00 


General . . . 








13-65 


10,228.63 


8,609.95 


1,632.33 


54,719.38 


Hunnewell . . 








1,377-47 


290.17 




1,667.64 


5,000.00 


Lawrence . . 








102.44 


174.10 




276.54 


3,000.00 


Lowell .... 








397-54 


174.10 


i75-oo 


396.64 


3,000.00 


Mass. Hist. Trus 


t 






6,243.55 


580.35 


411. 17 


6,412.73 


10,000.00 


Parker .... 








21.69 


47.14 


45.85 


22.98 


1,000.00 


Peabody . . . 








2,266.25 


1,283.92 


1,530.31 


2,019.86 


22,123.00 


Salisbury . . 








205.32 


290.17 


281.50 


213.99 


5,000.00 


Savage . . . 








743-36 


348.18 


3I7.54 


774-00 


6,000.00 


C. A. L. Sibley 








36.25 


1,306.32 


i,i74.53 


168.04 


22,509.48 


J. L. Sibley . 








5,659.87 


7,025.80 


8,240.27 


4,4454o 


121,077.00 


Slafter .... 








164.62 


58.03 


57.33 


165.32 


1,000.00 


Waterston No. 1 






1,515-00 


290.17 


158.77 


1,646.40 


5,000.00 


Waterston No. 2 






3,97743 


580.35 


470.17 


4,087.61 


10,000.00 


Waterston No. 3 






3,201.46 


580.35 




3,781.81 


10,000.00 


Waterston Library 








224.88 


194.71 


30.17 


3,875.14 


R. C. Winthrop . 






4,844.93 


580.35 


613.32 


4,811.96 


10,000.00 


T. L. Winthrop . 






316.46 


137 19 


80.00 


373^5 


2,364.66 


Wm. Winthrop . 






1,312.07 


290.17 


372.70 


1,229.54 


5,000.00 
63,800.98 


Balance, Mar. 31, 1915 
General Income . . . 

" Expenditures . 

" Balance . . . 
Sibley Centenary . . 


$47,428.73 


$28,739.97 
3,038.14 




$27,344.89 




$48,823.81 




Anonymous Centenary 
Total Income, 191 6 . 

Total Funds, March *i 


1916 . . . 


262.82 






5,519.20 


$32,040.93 


$443,190.83 























304 MASSACHUSETTS HISTORICAL SOCIETY. [APRIL, 

The income for the year derived from the investments and 
credited to the several funds in proportion to the amount in 
which they stand on the Treasurer's books was nearly six per 
cent on the funds. 

The real estate, which is entirely unencumbered, stands on 
the books at $97,990.32, and in former reports has been 
carried at this sum and balanced by the items. 

Building Fund $72,990.32 

Ellis House 25,000.00 

These items will not be carried hereafter in the annual 
Balance Sheet as the funds are not invested in securities but 
have been expended in the erection of the Society's building. 
The aggregate amount of the permanent funds including unex- 
pended balances represented by securities at par and deposits 
is $511,126.08, as per schedules of investments given above. 

ARTHUR LORD, 

Boston, April 1, 1916. Treasurer. 



Report of the Auditing Committee. 

The undersigned, a Committee appointed to examine the accounts 
of the Treasurer of the Massachusetts Historical Society as made 
up to April 1, 19 1 6, have attended to that duty, and report that 
they find that the securities held by the Treasurer for the several 
funds correspond with the statement in his Annual Report. 

They have engaged the services of Mr. Gideon M. Mansfield, a 
Certified Public Accountant, who reports to them that he finds the 
accounts correctly kept and properly vouched, that the balance of 
cash on hand is satisfactorily accounted for, and that the trial bal- 
ance is accurately taken from the ledger. 

HAROLD MURDOCK, 

HENRY H. EDES, 

Committee. 
Boston, April 5, 1916. 



1916.] REPORT OF THE LIBRARIAN. 305 



Report of the Librarian. 

The Librarian reports that during the last two years there 

have been added to the Library: 

1915 1916 

Books 1,502 910 

Pamphlets 1*056 1,436 

Manuscripts, bound 43 84 

Broadsides 178 54 

Maps 35 10 

Total 2,814 2,494 

In the collection of Manuscripts there are now 1,486 volumes. 
In the Rebellion Collection there are now 3,545 volumes, 
6,623 pamphlets, 510 broadsides, and in maps. 

The Library is estimated to contain 58,586 volumes, 119,441 
pamphlets, and 5440 broadsides. 

Samuel A. Green, 
Librarian. 

Report of the Cabinet-Keeper. 

The additions to the Cabinet of the Society have been re- 
ported each month at the meetings and are set forth in detail 
in the Proceedings. It seems unnecessary to repeat them here. 

The Curator of coins and medals, Dr. Storer, has been active 
in increasing the collction in his charge, and has added during 
the past year 142 pieces, of which 112 pertain to Massachusetts. 

The collection now numbers in all 11,018 pieces, 1,311 being 
Massachusetts specimens. This is the largest Massachusetts 
collection known. 

Grenville H. Norcross, 

Cabinet-Keeper. 

April 13, 1916. 

Report of the Committee on the Library and Cabinet. 

We were met at the Historical Rooms by the Cabinet-Keeper, 
the Curator of Coins, and the Assistant Librarian, who extended 
to us every opportunity to examine the building and its con- 
tents. 



306 MASSACHUSETTS HISTORICAL SOCIETY. [APRIL, 

The Cabinet collections, which are well cared for and well 
catalogued, are crowded into so small a room that it is not 
possible to see and appreciate how many valuable and unique 
articles are in the possession of the Society. When the oppor- 
tunity arises, they should be transferred into a large room where 
they can be shown to advantage. The present impression to 
the visitor is one of great confusion. 

The collection of coins and medals, originally belonging to the 
Society, with the Appleton and Adams gifts, is one of the most 
important in the country, and is being strengthened by acces- 
sions from time to time. As regards Massachusetts, it is par- 
ticularly valuable. From every point of view, this collection 
cannot under existing conditions be properly cared for. The 
articles are kept in a room with old-fashioned wooden cases 
wholly unsuited to proper arrangement or safety. There are 
no labels which will permit them to be exhibited and no proper 
catalogue to aid the visitor in obtaining the most superficial 
knowledge of the extent of the collection, though proper listing 
is now being done under the best auspices. Metal cases of the 
most approved models, for exhibition purposes and for safety 
against fire, should be purchased; but before doing so a careful 
study should be made of what has been done in other institu- 
tions such as the American Numismatic Society in New York, 
the State Library of Connecticut and the Essex Institute at 
Salem. 

The present catalogue cases came from the old building. They 
were built from a design, peculiar to this Society, for a special 
size of card, which is too small to contain an adequate record of 
a book title or a fair calendar of a manuscript. New standard 
cases should be purchased at once, future entries should be 
made upon proper sized cards, and the old catalogue cards 
should be made to conform gradually with the new cases. 
One great advantage will result, that the printed cards issued 
by the Library of Congress can be purchased at small cost for 
such books as are found in our collections. The wooden book- 
cases and furniture near the catalogue case are a menace on 
account of fire. The initial expense of this change will be 
small and means lasting economy and gain in service. 

For more than a century the Society accumulated books, 
pamphlets, manuscripts and newspapers, but did little toward 



1916.] REPORT ON THE LIBRARY AND CABINET. 307 

putting them into permanent form. Perhaps this is as well, for 
in those days the methods were bad. Books and pamphlets 
were ruthlessly trimmed, large numbers of pamphlets were 
made into volumes, irrespective of size or contents, and the 
leather used on books and manuscripts has proved of no per- 
manent value. For five years the Society has had its own bind- 
ery wherein modern methods, adopted both here and abroad, 
have been applied in dealing with books, pamphlets, manu- 
scripts and newspapers. The following valuable collections 
have been placed in perfect condition: French, 28 vols.; Lee- 
Cabot, 23 vols.; Wetmore, 21 vols.; Robbins-Coffin, 12 vols.; 
Amory-Sullivan, 10 vols.; Dwight Foster, 8 vols.; and twenty- 
six volumes of minor collections — in all 128 volumes, con- 
taining thousands of manuscripts. In addition 52 rare manu- 
scripts have been separately bound and a number provided 
with solander cases. Among the earlier newspapers, the 
Boston News-Letter (i 704-1 748) has been bound in fifteen vol- 
umes; the New England Weekly Journal (1727-1741), in five, 
and the Georgia Gazette (1763-1770), in eight. It is only when 
thus bound, arranged and placed on shelves that a proper cata- 
logue can be made. Buckram has been generally adopted, but 
leather has been used for the more valuable documents, though 
the present price of fine leather necessarily restricts its use. 
The bindery is now able to do on a small scale all that is neces- 
sary in the art of binding. An expenditure of six hundred dollars 
should be made for machines and tools to develop this work. 

The basement has a room now filled with publications issued 
by the United States and the different States, which have no 
historical value, are never used and are so shelved that they 
could not be easily found even if required. Once a depository 
of United States documents, the Society long since abandoned 
the privilege. This well-nigh useless mass of material should 
be disposed of by sale or exchange, as whatever is of value has 
been placed on shelves. In other parts of the building books of 
no value should be also sold or exchanged. By doing this the 
congested condition would be relieved and the danger from 
fire in the basement would be greatly reduced. 

The Society possesses the largest collections of Massachu- 
setts colonial newspapers on file in any one place, and has re- 
ceived in the past many valuable volumes of early newspapers 



308 MASSACHUSETTS HISTORICAL SOCIETY. [APRIL, 

printed in other States. During the past year it was suggested 
to some other institutions that a movement be begun to con- 
solidate, with our collections, the many scattered numbers of 
these Massachusetts newspapers, so that our Society should be 
the custodian of the most perfect files obtainable. Our Society 
offered to give a full reproduction by photostat to any library 
willing to do this, and to abandon entirely by exchange or gift 
its broken files of " foreign" newspapers. The proposition was 
met by objections, such as the confusion arising from changing 
a " known location' ' of a given volume, and the strong feeling 
that each library should retain the originals. These objec- 
tions do not appear sound. The advantage to be gained by a 
redistribution of such material is unquestioned, and must 
appeal in time to those interested in specialized collections. 
The only question is how the exchange can be made with justice 
to all concerned. 

In view of the many valuable collections belonging to or de- 
posited with the Society, there can be no doubt that the entire 
building should be made fireproof. This would mean the re- 
building of the interior, which, owing to expense, does not seem 
possible at present. As soon as a proper fireproof stack for. 
books, pamphlets, etc., can be built upon our vacant lot, the 
congestion of the present building would be relieved, the op- 
portunities for exhibiting our priceless pictures and historical 
collections would be increased and the danger from fire les- 
sened. The work of fireproofing is being gradually done satis- 
factorily. 

William C. Endicott, 
Lincoln W. Kinnicutt, 
Henry G. Pearson. 



1916.] REPORT ON TflE LIBRARY AND CABINET. 309 

Mr. Winthrop, for the Committee to nominate officers for 
the ensuing year, made a report, upon which a ballot was taken. 
The officers are as follows: 

President. 
HENRY CABOT LODGE. 

Vice-Presidents. 

JAMES FORD RHODES. 

WINSLOW WARREN. 

Recording Secretary. 
EDWARD STANWOOD. 

Corresponding Secretary. 
WILLIAM ROSCOE THAYER. 

Treasurer. 
ARTHUR LORD. 

Librarian. 
SAMUEL ABBOTT GREEN. 

Cabinet-Keeper. 
GRENVTLLE HOWLAND NORCROSS. 

Editor. 
WORTHINGTON CHAUNCEY FORD. 

Members at Large of the Council. 

JOHN COLLINS WARREN. 

CHARLES GRENFILL WASHBURN. 

SAMUEL WALKER McCALL. 

BARRETT WENDELL. 
JOSEPH GRAFTON MINOT. 



3IO MASSACHUSETTS HISTORICAL SOCIETY. [APRIL, 

Mr. Bigelow read the following paper on 

The Old Jury. 

[The following paper is concerned with' the Old Jury only 
as a link in the chain of the history of evidence.] 

With men of the Middle Age truth was unconfined. Just as 
the open objective world reached far "beyond the utmost 
purple rim" of sense and observation, so the occult, subjective 
world, unobservable to modern men, had unbounded extent, 
throughout and everywhere, as real as things within physical 
observation. Lines which we draw they indeed drew, but only 
as marking off one realm of reality from another. To most men 
of the Middle Age the methods and purposes of modern science 
would have been meaningless; they could not have lived our 
life any more than we could live theirs. The first Bacon was 
" unheard" in his day; no one understood him. 

Nor is this to be set down altogether to the disadvantage of 
our ancestors. In the sphere of government, certainly not one 
of the least of things, Anglo-Saxon and Anglo-Norman were 
perhaps as successful as we moderns are. Guilt hardly dared 
to play with the old law; open guilt not backed by power could 
not delay the feet of justice, and secret guilt on trial felt and 
feared the Unseen. Face to face with the frowns and terrors 
of what was held for reality, the wrongdoer, who alone knew 
the truth, was likely to feel an added sense of guilt, and tremble 
and fail in the trial of endurance. Men of old knew their psy- 
chology — knew that psychology was a good detective. They 
knew that a man could not get rid of himself, and they under- 
took to forward the crisis. 1 

But the meaning of fact, together with the way of deciding it 
when in doubt, was peculiar to an age that did not under- 
stand methods of investigating truth. A bar lies there be- 
tween all earlier times and the present, a bar which cannot be 
removed; but it explains much. 

The Anglo-Norman jury was no exception; like the ordeal 
and the duel, this too was a mode of trial, not a proceeding in 

1 "It is the unknown that terrifies," says a writer in the Manchester Guardian, 
True, but guilt will give way to it more readily than integrity. That was the old 
theory. The social man is stronger than the anti-social man, or society could not 
exist. 



1916.] THE OLD JURY. 311 

which evidence in the modern sense played its part; so it was 
down to about the fifteenth century. Still trial by jury differed 
from other modes in that it was not a party test. The trial was 
by submission to the decision of (in theory) an impartial body, 
the common juries being sworn to speak the truth "according 
to their knowledge." But that should not be read as language 
of to-day or yesterday; the old jurors' "knowledge" was not 
the net result of open investigation in court, as in modern times, 
through the sifting of evidence offered there. This is true even 
of the grand assise (for trying the right of property in freehold 
lands), where the jury was sworn to speak the truth "pre- 
cisely," without adding "of their own knowledge. 1 " 

The old jury trial was not, in any case, "one-sided," as were 
the other modes of the time. That was gain; but the duty to 
speak the truth, whether of "knowledge" or "precisely," was 
both actual and potential gain of the highest — for that covers 
the whole field of evidence. Unfortunately the potential gain 
was not fulfilled; reform fell short in what is now regarded as 
of the essence of sound method, 2 and that too even in relation 
to impartiality. 3 Indeed, as we have already intimated, such 

1 The psychology is lame, but the meaning is clear. To deprive a man of his 
freehold was a serious thing, and was not to be done upon mere beliefs. Common 
juries might " think" so and so; the grand assise must be positive. Y. B. 30 and 31, 
Edw. I. 116; Y. B. 11 and 12, Edw. III. 338; Y. B. 12 and 13, Edw. III. 4; 
12 Lib. Ass. 34, 12; 23 Lib. Ass. 11 — all cited by Thayer, Evidence, 100, 101, of 
witnesses, common juries and the grand assise. The accusing jury was sworn 
simply to "speak the truth." Assise of Clarendon, c. 1. 

2 This is true, though it is also true, as Thayer, Evidence, 500, says, that "all 
the rest," after the witnesses have testified to what they have seen and heard, 
the ordinary jurors "themselves were to furnish, such as general knowledge, 
hearsay, their own private knowledge, including hearsay and inferences from it, 
and the reasoning and conclusions involved in comparing and digesting all that 
they knew or had heard from others." But it must be remembered that there 
was no open, public examination and searching of testimony, except in special 
cases. Thayer, of course, does not mean to suggest that evidence in the modern 
sense was had in the courts; he has pointed out the contrary more than once. 
"When jury trial, or rather proof of jury, as it originally was," etc. Evidence, 
502, ib., 105. Maitland, Pleas of Crown for Gloucester (a. d. 1221), Introd. XL., 
xli. See also Brunner, Schw. 36: "Anbetracht dessen kann die altere Civil jury 
nicht als Urteil Jury, sondern nur als Beweisjury bezeichnet werden." But that 
that was true, and true in the very face of suggestion and example pointing to 
modern ideas, deserves to be made clear. 

8 The result in the common jury cases was from the first mainly in the hands 
of one man; the sheriff selected the jury, the parties being present, if they chose, 
for the purpose of challenge. See Glanvill, Lib. 13, cc. 5, 12, 14, 15. The sheriff 



312 MASSACHUSETTS HISTORICAL SOCIETY. [APRIL, 

reform was not thought of. The old English jury had an open 
field, but that was a rank expanse scarcely touched by the 
ploughshare of investigation. 

Certain facts which may appear to be opposed to this remark 
should be considered; some of these pertain to preliminary 
proceedings in jury trials, some to the trial itself. 

Preliminary arrangements for civil causes related to the 
secta, while that was yet a required part in litigation; here the 
judges might, and upon challenge of the men always did, in- 
quire into their competency, to whatever extent they chose. But 
this was the end of the business; either the men, or some of 
them, were rejected, which would require a new secta in whole 
or in part, or the men w^re accepted, and the case went on to 
trial. The only opportunity remaining was that of examining 
the jurors, upon challenge; of that presently. 

Similarly in the preliminary proceedings for criminal prose- 
cution under the Assise of Clarendon (1166), 1 that is, in making 
up the accusing jury or accusation by "public voice" 2 — the 
grand jury of modern times — it appears to have been the reg- 
ular course for the judges to make diligent inquiry into the quali- 
fication of the jurors. Glanvill, speaking of the assise, says of 
such cases that the judges were required to make inquiry into 
the truth of the accusation, by many and various questions, 
considering indications and conjectures, making for or against 
the accused. 3 

thus took the place of the party in the other tests. What that might mean has 
been intimated, infra, 314W; it speaks plainly enough to the question of impartial 
investigation, and the removal of sheriffs wholesale by Henry the Second em- 
phasizes the point. Inquest of Sheriffs, 1170; Stubbs, Select Charters, 147-150. 
In the grand assise the four knights chose the jury, the parties having the right 
of challenge. London jurors in the civil assises might be challenged for par- 
tiality through collusion and examined. Liber Albus, 1. 447. This was no doubt 
only a special example. 

1 Stubbs, Select Charters, 140. See Ethelred, in., c. 3, Select Charters, 72 (978- 
1016). Trial under the Assise of Clarendon, i. e., by indictment, was not exclu- 
sive; the ancient procedure by appeal was not affected by it. The appeal was 
not abolished until 1819. 59 Geo. 3, c. 46. Evidence played little part under 
either procedure. 

2 As distinguished from the "certus accusator," in appeals, Glanvill, infra. 

8 "Per multas et varias inquisitiones et interrogationes coram justiciis facien- 
das inquiretur rei Veritas, et id ex verisimilibus rerum indiciis et conjecturis, 
nunc pro eo, nunc contra eum qui accusatur facientibus." Lib. xiv. c. 1, § 2. 
So of the competency of the defendant himself to demand a particular form of 
trial. Merchant and Friar, 180-190. 



1916.] THE OLD JURY. 313 

This was the extent of the inquiry, unless the accused, by 
permission, put himself upon a jury; the ordeal was the pre- 
scribed mode of trial for half a century yet. That is, the trial 
itself by the old mode, or by one of the old modes, admitted of 
no examination after the medial judgment. It was in jury 
trials alone that investigation beyond the preliminaries was pos- 
sible; and jury trial in the cases in question was yet very 
exceptional. 

How did the case now stand? Here, in the preliminaries, was 
a plain suggestion, fortified, as will be seen, by the French in- 
quest, which must have been familiar to the English judges; 
did the judges see and care? Much was to turn upon that ques- 
tion. Let us look into the subject. 

In certain cases where the parties or the King called for in- 
quiry out of the ordinary, great pains were taken to "inform" 
the jury. How this was done has been told in detail by Thayer. 1 
Two or three typical examples may be given here: 

1. The jurors themselves were usually community witnesses, 
summoned for their knowledge of what had taken place in the 
vicinage. In aid of them, in special cases, other sworn persons 
(often called jurors) were added to tell the jury, not what they 
"knew," but what they had seen and heard; jurors of the hun- 
dred or of some particular ward of London or other town — a 
separate body, at least from the fourteenth century, from the 
trial jurors whom they were to help. An offence is secretly com- 
mitted in X; the offender flees to Y, where he is arrested; he 
lives in Z. Juries from all these places, and perhaps from other 
places, are summoned and brought in aid of the trial jury — 
combined it may be with the original jury — to furnish any in- 
formation they had. 

2. Next suppose that a deed of feoffment, or a will, for ex- 
ample, of one of the Humphreys de Bohun, or any other witnessed 
instrument, had been pleaded and put in issue. The witnesses 
now are the transaction witnesses of the time, named for the 
very purpose of giving testimony in court in regard to the sub- 
ject in question, of which the instrument was to be the proof. 
These witnesses by the ancient law might, like an ordinary jury, 
decide the case; they were expected to do so. Or, as in modern 

1 Evidence, 90-94. 



314 MASSACHUSETTS HISTORICAL SOCIETY. [APRIL, 

times, they might act merely as witnesses before a trial jury — 
this where the parties had put themselves, not on the witnesses 
to the instrument, but on a jury; in which case they merely "in- 
formed " the jury. Or again, the two bodies might be combined 
into one, according to the pleading and the judgment of the 
court. The names of the witnesses to the instrument were usu- 
ally signed by the notary who drew it up, often without their 
knowledge and though they knew little or nothing at all of the 
transaction, or of the statements of the instrument; a fact which 
might or might not be brought out, according to whether or 
not the witnesses were challenged. 

3. Another case may be mentioned. Parties were entitled to 
have the names of the trial jurors given them before the term 
set for the trial, so that, at least in property cases, they might 
inform the jury of their right and title. 1 

All this looks at first like evidence, but evidence it was not. 
Evidence means much more than the production of testimony, 
however strong; the term includes in its import, or rather evi- 
dence itself is, the rational mode of removing doubt. It accord- 
ingly imports (a) the production of testimony of facts, under 
(b) reasonable precautions and safeguards, and (c) a critical 
examination of such facts (1) in regard to their truth or proba- 
bility, and (2) their bearing upon the issue; all of this based 
upon (d) clear and sound experience. This is the test by which 
to try the question of the employment of evidence in the courts 
under the old jury — a test in which the jury must have failed, 
especially in regard to second-hand testimony, which, it may be 
added, is often of first-rate value and often followed. But 
knowledge whether by sense-perception or through other ra- 
tional evidence was not necessary to qualify a juror. The 
juror's "knowledge" might fall far short of this. Except in so 

1 The sheriff too had a hand in the business; as we have already said, he se- 
lected the jurors. In Palgrave's fiction of The Merchant and Friar (Marco Polo 
and Roger Bacon) the sheriff, answering the court ("Sheriff! is your inquest in 
Court?"), tells how faithful he has been in finding an excellent jury for the 
crown. "I have myself," he says, "picked and chosen every man on the panel. 
. . . The least informed of them," he goes on to say, " have taken great pains to 
go up and down in every hole and corner of Westminster — they and their wives 
— and to learn all they could hear concerning his [the culprit's] past and present 
life and conversation." Merchant and Friar, 184-190.. See also Thayer, Evi- 
dence, 90, 91, note. 



1916.] THE OLD JURY. 315 

far as the term had acquired a technical meaning, 1 it meant 
nothing different from the "knowledge" of other men; and how 
vague and uncertain that is even at this day — how far from the 
persuasiveness of evidence — a moment's reflection will show. 
Men in general will readily declare they "know," when a ques- 
tion or two will show that they have no knowledge either 
directly acquired by the senses or indirectly apprehended by 
sound reasoning. 2 Uncritical knowledge was enough for a ver- 
dict by the old jury; special circumstances like those above 
stated only added somewhat to the trustworthy character of the 
verdict — it did not essentially change it. And it must be re- 
membered always that we are dealing with an age of credulity 
in which divination, magic and mathematics, supposed to be- 
long to the same category, all alike flourished, all equally credi- 
ble. The jury of the time was better than other modes of trial, 
but like them it was even at its highest no more than trial 
by men to whom the occult was fact equally with objects of 
sense. 

But afforcement of the jury was exceptional, as one may 
readily see by looking into the records of the time, for instance, 
the Rotuli Curiae Regis. 3 Afforcement is always particularly 
referred to as out of course. Usually there was a simple jury, 
witnesses being brought forward by the parties as in modern 
times — for what the jury cared to consider them worth. The 
jury could disregard the sworn information even of the impartial 
transaction and community witnesses. Whether there were 
witnesses or not was immaterial for the verdict; the jury 
"knew" what to say regardless of others. In ordinary cases, 
that is, unless there was special reason for inquiry by the court, 
no inquiry concerning the knowledge of the jurors was made. 
The judges merely looked on after delivering the charge; it 
was now no affair of theirs. It was the jury's business; to hear 
or refuse to hear witnesses — not merely to disbelieve their tes- 
timony — was their right. On the other hand, they were not 
permitted to take unsealed writings out into the jury room, be- 
cause such writings were not authenticated; though they 

1 See note 2, 323, infra. 

2 "Hearsay" is another thing and may be and often is serious evidence. See 
infra. 

3 These are the earliest official records of litigation in England; they are of 
the years 1194-1199. 



316 MASSACHUSETTS HISTORICAL SOCIETY. [APRIL, 

might look at them before going out. That indeed was scru- 
tiny, as far as it went. 

Across the English Channel, whence came the jury, a different 
state of things was coming to pass as early as the thirteenth cen- 
tury. There the jury, under the name of Inquest, had flour- 
ished for centuries before it was carried to England, and there 
it was to find a place in the history of judicial evidence which it 
did not have at the time, and never had, in England. What 
was exceptional and extraordinary in England was in ordinary 
course south of the channel. There we find the courts dealing 
with questions of fact regularly 1 upon something like modern 
ideas of evidence; ideas which were to lead in a direction of 
their own, not to laws peculiar to legal evidence such as came 
to pass in England, but to evidence in the untechnical sense of 
modern science. The jury was finally left to England, there to 
work out its peculiar course touching evidence by slow and 
sluggish steps. 

We turn now to Normandy for evidence in support of these 
remarks; what do the books tell us of the course of things there? 
The Ancient Coutume, of date between 1276 and 1280, gives 
us a plain answer, so far as criminal cases are concerned. In 
murder trials, the Costumal tells us, the accused may put him- 
self upon an inquest of the country, Venqueste du pays. The 
judge was then to summon all those who were presumed to 
know anything about the cause, or have any information about 
it, suddenly, without warning or suggestion, so that they might 
not be tampered with. Calling each one before him, in the pres- 
ence of four knights of good repute, he was next to "inquire 
diligently" into the facts, taking down the answers in writing. 
Then he was to have the accused brought before those whom 
he had examined, and permit him to challenge any of the num- 
ber. The jury should finally consist of twenty-four men at 
least. Similarly, in cases of theft or robbery, summons was to 
be made of lawful jurors, who knew the truth in regard to the 
facts and the life, of the accused. These were now to go before 

1 The credulity of the age, however, found its way still in the courts of justice. 
Appeals of sorcery and enchantments occupy a chapter of a page and a half 
in the printed text of the Ancien Coutumier de Bourgogne, ch. xxxi, Marnier. 
" Se une feme dit a une autre: Tu has fait ces charraies (enchantments) et ie t'en 
prouerai. Se au provez vient, prouer le droit par loial tesmoins qui haient veu 
et oi, et oi recognoistre que de fit ces charraie. ..." 13th century. 



1916.] THE OLD JURY. 317 

the judge, with three or four knights, in secret, to be examined 
diligently, one by one, in regard to their knowledge and belief 
concerning the life and acts of the accused. Then came the 
opportunity for challenge, and after this what each juror had 
said was to be declared before the accused by the judge, and the 
jurors were to confess that they had sworn accordingly. Ver- 
dict by twenty was to be conclusive. 

A decision of the Norman Court of Exchequer of the year 1292 
may now eontinue the inquiry. In an inquest or jury, upon a 
writ de stabilia, 1 the judge asks the jury, who had made their 
answer, of the ground for what they had declared — was it 
"de scientia"? The jury answered that they spoke "de credu- 
litate" — they believed. The question was then raised whether 
such answer was sufficient; judgment that according to cus- 
tom it was, in that case, and that knowledge was not required. 2 
That is, it seems, certainty — knowledge by the senses — was 
not necessary before a jury. Here was the beginning of a pre- 
cedural distinction, which was to be complete in the following 
century; this appears by a decision which throws light back- 
wards and forwards. It was now held that any one who could 
produce evidence de certain — de scientia, knowledge by sense- 
perception — had the right to choose between bringing his case 
before a judge or putting it upon a jury — enquet. Such a 
person was not to be compelled to go to a jury — that was the 
point decided. 3 Here was a distinction which, looking back- 
wards, shows that the judge had already acquired the power, 
in civil cases as well as in criminal, of deciding questions of 
fact; this alongside the older process of jury trial. 

But the meaning of it is more significant than the mere fact; 
the judge acts upon facts of knowledge by the senses — sight 
and hearing — while the jury is now and probably has long 

1 For the protection of one's fief, possession of which had been disturbed by some 
powerful lord. De Gruchy, in note to his ed. of the Ancienne Coutume de Nor- 
mandie, 154. 

8 Statttta et Consuetudines of Normandy, Warnkonig, quoted by Brunner, Schw. 

45i. 

8 " Qui veult prover par preuve destroite, c'est assavoir par tesmoing de certain, 
il ne doit pas estre contraint a prouver par enqueste; car a cellui qui a a faire la 
prevue est a choysir ou prendre preuve destroite ou loy (lex) d'enqueste, na sa 
partie ne lui peult empeschier, car la plus forte loy abat la plus fieble." Brunner, 
Schw., 453, quoting Coutumue Style et Usage aux temps ltchiquiers de Nor- 
mandiey Caen, 1847, ch. 28, 30. 



318 MASSACHUSETTS HISTORICAL SOCIETY. [APRIL, 

been the proper agency for the trial of cases of less certainty, 
"feeble" cases. And the reason is plain; the judge would not 
be likely to know anything about the facts — he was not ex- 
pected to be; hence he should be informed with certainty. 
The jury, on the other hand — the body of men of the commu- 
nity, du pays — has been chosen for the very reason of their 
knowledge, in either form, first hand or second; hence they 
might make sufficient the "feeble" facts of the party — that 
was regular business of the jury. In other words, one having 
" certain " knowledge was not to be required to put this in doubt, 
by putting it before a jury; while one dependent upon others, 
or upon reasoning more or less doubtful, was to have the aid of 
his neighbors, the jurors, so far as that might help his infirmity. 

The jury was now exceptional process, resorted to only in 
cases of need — lest for want of the better evidence, one fail and 
lose one's right. 1 

This is the light thrown backwards by the procedure. The 
jury is for the feebler case; the feebler case is displaced (by the 
decision of the Norman judge) for the stronger. We may now 
see the light as thrown forwards. The decision just mentioned, 
together with the case of 1292, is a forerunner; the road to Rome 
is open; 2 the course cannot be long. Norman and Anglo- 
Norman 3 are to part company completely; the jury will come 
to be looked upon as an English notion, as a subject for the 
French (or German) antiquary. In the fourteenth century the 
"feebler" way has disappeared altogether; 4 both kinds of fact, 
knowledge by the senses and knowledge less certain, have come 
together as evidence, and so French law has settled any doubt 
whether south of the channel there should grow up a congeries 
of laws of investigation peculiar to the administration of jus- 
tice. The conception of evidence, in the sense of science, has now 
prevailed, whatever its relation to the canonical Inquisition of 
the Middle Ages. All facts which are calculated according to 

1 " Avant que le droit perisse, Ten se aide des enquestes." Brunner, ut supra. 
Style et Usage, ch. 28, 28. 

2 The Roman judge or praetor was before the mind. " Hors jugement en aulcun 
lieu hors du pretoire " — court-room. Stille de proceder, Normandy; Brunner, 
Schw. 455. 

8 "Anglo-Norman" is belated for the 13th century, but it is better than "Eng- 
lish" when applied to the courts. 

4 "Die germanische Scheidung zwischen Richter und Urteilfindern war versch- 
wunden." Brunner, Schw. 456. 



1916.] THE OLD JURY. 319 

experience to influence or throw light upon conduct, second-hand 
as well as first-hand facts, are to take their place, in the findings 
of the judge, according to their worth. The function of the 
jury has been absorbed in that of the judge. 1 

So in France. What was going on in England? The dis- 
tinction between the two kinds of fact brought about another 
result there. Facts furnished by witnesses were to be of the 
senses, de visu et auditu. Evidence by sight was a clear case; 
I see by my own eyes, not by the eyes of another. But hearing 
has a double import. I may hear a sound myself, or may hear 
another tell of it, and that other may have heard it from some- 
one else. The English law, after its earlier doubts, 2 put aside 
second-hand evidence; a course that has made it necessary, 
more and more down to the present day to heap exception upon 
exception, until confusion is enough to baffle all but the persist- 
ent few who can follow the attenuating thread of history back 
to its obscure and distant beginnings. The administration of 
law could not fail to be embarrassed when so much of life was 
shut out of hearing in the halls of justice; or rather, when by 
reason of trial by jury questions of fact not within one's own 
observation must not be permitted to go to the accredited 
judges, jurors or not, and when something called the "best 
evidence" is considered alone to be admissible — to the exclu- 
sion, that is to say, of what does not fall within the meaning of 
that doubtful and discredited term. 3 

The difference thus shown between methods on the opposite 
sides of the channel — between Normans (and English) on the 
one side and Normans on the other — is striking. 4 The Anglo- 

1 This had come to pass completely by the latter part of the 14th century. 
See Le Grand Coutumier de France, lib. 4, c. 1, on the office of Judge, Paris, 1868. 

The judge or some deputy examines the witnesses with modern thoroughness. 

So far as any express language is concerned it is true, as Brunner, Schw. 457, 
says, that there is no trace in France of opposition to the jury; but the abandon- 
ment of the jury speaks for itself. 

2 As in the case of the champion; he at first was a witness, swearing' either 
upon what he himself knew or what his father had told him. Other witnesses 
and jurors had sworn in the same formula. 

8 See Thayer, Evidence, chapter xi., where the history of the "best evidence" 
is set out. It should be said that much of this runs back to times before the 
English jury, as Thayer has shown; but it is still pure English, its devious course 
everywhere affected by the jury. 

4 The difference, which is the subject largely of this paper, has been noticed 
by others as needing explanation. "When all has been said, the almost total 



320 MASSACHUSETTS HISTORICAL SOCIETY. [APRIL, 

Norman judge saw in the jury only a particular organ for ex- 
pressing habits of mind long before formed; habits in which the 
judge was but a moderator, presiding over justice as a sort of 
contest, to see that the old rules were observed. Judges who 
could approve the introduction of trial by battle could natu- 
rally see nothing in the jury but a new form of old processes of 
trial, with twelve witnesses in the one case to one in the other. 1 
The idea of evidence, except as partially employed in the quali- 
fication of witnesses and jurors, did not enter the mind or at any 
rate found no expression. Exception was to remain exception, 
generation after generation, without suggesting that it was 
only part of a general rule. 

The Norman judge was a different man; he saw a light in the 
jury and began to play, in however small a r61e, the part of 
the coming modern man. He appears to have realized that the 
only way to decide disputed facts was by evidence, and evidence 
was now introduced into his court for the first time since the 
fall of Rome. What he saw was not so much the jury as the 
suggestion it brought, that questions of fact could and should 
be decided by evidence; and for that purpose a jury was no 
more needed in France than it had been in Rome, or than it is 
now in England or America. And so the jury was put away. 2 

It is hardly necessary here to say that no argument is being 
made in favor of the later canonical inquest of continental 
Europe — better known as the Inquisition. That was an un- 
necessary outcome of a legitimate antecedent. England very 
likely did, as Maitland has pointed out, 3 have a narrow escape 
from that danger; but it was not the jury that saved the day. 4 

disappearance in France of the old enquite du pays in favor of the enquite of 
the canon law at the very time when the inquisitio patriae is carrying all before 
it in England is one of the grand problems in the comparative history of the two 
nations." Pollock and Maitland, History of English Law, n. 602. 

1 See Glanvill, Lib. 2, c. 7, infra. 

* The jury of the neighborhood — du pays — was particularly adapted to 
its original purpose of ascertaining fiscal or crown and ducal rights of property, 
scattered throughout the country and denied as they were; much more so than 
the many other facts to which it was and is directed; the trial jury was later 
than the fiscal jury. 

3 English Law and the Renaissance (Rede Lecture). See also Maitland's 
Roman Canon Law and the Church of England. 

4 The contrary must run thus: France, which had the jury, gave it up, and 
the canonical inquest followed; England which had the jury, kept it; and the 
canonical inquest did not follow. Ergo England was saved by the jury. Praise 



igi6.] THE OLD JURY. 321 

That, however, is beside the present point. All that these re- 
marks are intended to show is that the jury stood in the way of 
evidence and put off the day of sound inquiry for generations — 
until indeed the Court of Chancery was brought into being to 
put an end to the embarrassment. It matters not that trial by 
jury at last found the way, so far as that is the case, for it found 
the way only through special rules for excluding evidence. 

The explanation of the difference between the Anglo-Norman 
and the Norman judge may perhaps be found by looking at the 
subject from the point of view (already intimated in "habit") 
of psychology. With the Anglo-Norman judge the cognitive 
and the conative (or willing) functions of the mind had by long, 
unbroken usage become settled ("rigid"), and the relation be- 
tween them was accordingly imperfect. The difference be- 
tween men is the difference of mental preparation, whether by 
heredity or environment, or both. The mind responds to the 
stimulus for which it has been well prepared, and in ordinary 
circumstances to that only. Stimulus must be powerful and 
usually long-continued to break up habit finally. With the 
Norman judge the cognitive and conative functions appear to 
have remained, or to have become, mobile ("plastic"); the 
relation between them accordingly was sensitive to the special 
stimulus, and cognition was the means of arousing the will to 
action. In a word, the reaction of the Anglo-Norman judge to 
the introduction of the jury was reflexive; that of the Norman 
judge was reflective. 

If this is the right way to put it, it was not so much a prefer- 
ence for the old ways, in the case of the Anglo-Norman judge, as 
it was a fixed habit of mind which really governed his conduct. 
Why the Norman in England fell short of the Norman in Nor- 
mandy was perhaps because the feeling of the English, many of 
whom were retained in office after the Conquest, was strong 
enough to stifle any direct effect of the stimulus. How else 
can the fact be accounted for, that the Norman mind, quick- 
ened into legal life in Normandy, was repressed, to find an out- 
let only in minor ways, in England? 1 

of the English jury in contrast with the development of the continental inquest 
almost leads to that — it easily suggests it. 

1 Anglo-Norman judges — and the king-duke, from the Conqueror to John — 
took part in the administration of justice on both sides of the channel. Foreigners 
in high places were the scandal of Henry Third. 



322 MASSACHUSETTS HISTORICAL SOCIETY. [APRIL, 

Three centuries after the Norman Conquest must indeed pass 
before there was to be any serious stirring in England of the 
stagnant pool; for the reforms of Henry the Second touching 
the jury still left the jury a form of trial. Not until the latter 
part of the fourteenth century were the need and efficacy of evi- 
dence for determining questions of fact driven home, although 
throughout this long period the judges were daily being brought 
face to face with the most momentous questions that ever could 
affect society — questions of life, property and well-being. 
Such was the power of a custom. Discredited, as some of it was, 
even in its day 1 — for the primitive stage with the governing 
class was passing away 2 — it could confine the human mind 
within a prison-house whose doors needed but a touch to open 
them, and there was no one to lift the latch. But what we call 
custom is social habit — a secondary form of mental disposi- 
tion which thus becomes part of the structure of the mind of all 
men within its operation. It was not the judges alone who could 
treat custom as positive law, 3 as if it were statute; lords and 
commons alike — the commons were wedded to their idols — 
were affected. Kings too could come and go, leaving a great 
name for achievement in the affairs of State, while showing at 
best only a negligible interest in the value of judicial processes 
of evidence for the discovery of truth. It was an age in which 
observation set no bounds to truth. The jury was indeed in 
favor, but not as a body appointed and devoted to the investiga- 
tion of facts. 4 There is no indication even of a desire for better 



1 Rufus said of trial by ordeal that men need not appeal to God, he himself 
would decide. But his bold word was void. See Thayer, Evidence, 38; Eadmer, 
Eistoria Novorum, 102 (Rolls series); Pollock and Maitland, n. 597; Brunner, 
Schw. 182. Fifty men who had been complained of for taking the King's deer 
cleared themselves by the ordeal of hot iron. Bigelow, Placita A.N., 72. Such a 
number may have something to say about the ordeal, it is thought. No doubt 
ordeals could be manipulated, but so could and can the jury. 

2 The 4th Lateran Council, 12 15, found the time ripe for striking a blow at the 
ordeal. Change of ways of thinking and acting comes with increase of knowledge. 
"When I was a child, I thought as a child," etc. But the thinking and acting of 
the child are normal and healthful. 

3 "Since waging law has always been practiced, and no other way" for many 
cases, " this proves in a way that it is un positive ley" Ashton, J., Y. B. 33 Hen. 
VI. 7, 23, quoted by Thayer, Evidence, 29. 

4 Even Glanvill, the Chief Justiciar and panegyrist of the jury, could pit that 
body against trial by battle as a case of twelve witnesses against one. Lib. 2, 
c. 7. 



1916.] THE OLD JURY. 323 

things until the Court of Chancery broke down the ancient 
barriers. It was for that new energy to point and lead the way, 
however faintly, to the discovery of truth, and to supply the 
power for making good the truth when discovered. 1 The Court 
of Chancery introduced, not indeed technical rules of evidence 
— it was for the jury to do that — but the modern era of sound 
judicial inquiry into questions of fact. 2 That court dispensed 
with any intermediary needing both instruction and control; 
it required parties to testify; it had the King instead of a 
sheriff to guard its work. It did not hold seeds which were to 
sprout into a volume of judicial rules for excluding evidence; 
rules too often whose meaning only some hardy explorer of legal 
history could in our day discover — rules which were to vex 
the courts long after the jury had for most civil purposes gone 
the way of all things which have lost their skill to win favor in 
the practical affairs of life. 3 

This part of the inquiry may close with some remarks on the 
defects and the advantages of the old mode of jury trial. 

The defects may be summed up in the statement that no 
sound method of examining fact was in use. There was no 
critical examination at the critical moment — at the time when 
the jury came before the court to give the verdict. The jurors 

1 The only man before this time, who was capable of greater things, was in his 
own day, as he himself tells us, unheard, forgotten, buried. Roger Bacon, Opus 
Major, 1267. 

2 Even if evidence in the true sense had been employed in the courts of Eng- 
land during the period in question, it would not have been English, as it was 
destined to become — pure English. If it had come into use in Norman times, 
it would probably have followed the French inquest; that is, there would have 
been no laws of legal evidence. All the later writers on evidence point out the fact 
that the English courts alone have a law of evidence peculiar to the trial of causes. 
See e. g. Thayer, Evidence, at the beginning of his Introduction. The jury, and 
nothing else, is responsible. The peculiarity seems to have begun as early as the 
first half of the 14th century, perhaps earlier. See a case of the year 1340, Y. B., 
14 Edw. III. 25-34, quoted by Thayer, pp. 108, 109, to the effect that jurors 
could not "know" the existence of legal records not produced before them, how- 
ever strong the reasons given by them to show the fact. But perhaps the judges 
as well could not "know" such things; if so, the case would be one of substantive 
law and not of excluding evidence. In either case knowledge was already a tech- 
nical term, limiting inquiry accordingly. . 

3 It is not altogether a matter of the exclusion of evidence that could not safely 
be left to a jury; the trouble is that rules of substantive law and procedure have 
been confused with evidence. But that is equally due to the jury. Thayer has 
made this plain in his preliminary Treatise on Evidence, so often cited in these 
pages. 



324 MASSACHUSETTS HISTORICAL SOCIETY. [APRIL, 

were witnesses as well as judges of fact, and as witnesses the 
occasional and irregular examination (dependent mostly upon 
challenges, which might not be made) in making up the panel 
could not take the place of a searching examination when the 
witness- jury came forward, in open court, to give answer on the 
issue. The parties were now ready and prepared, according to 
modern ideas, to sift the evidence and clear up the doubts. 
Party witnesses indeed were of little value and were not exam- 
ined at all; and such examination of the juror witnesses as took 
place was out of the ordinary course, much as it was in making 
up the panel. It was occasional and exceptional, employed 
only as grounds of suspicion of the jury arose; and when it did 
take place, it was not of the critical, exhaustive nature which 
would satisfy modern ideas. Cross-examination was unknown; 
the judge conducted such examination as was made, and such 
as he chose; precautions and safeguards, especially touching 
"knowledge" acquired out of court, were insufficient. The 
witness- juror judged of the value of his own ideas and infor- 
mation ! 

What advantages were there in the old jury trial, for dis- 
covering truth? These were equally noteworthy. As witnesses 
themselves, the jurors were left without restriction in regard to 
what, as men of good sense — freemen and true 1 — they 
deemed relevant and proper. They would and did act upon 
belief and thoughts; 2 they could and did act upon what their 
fathers told them to be true, and generally upon hearsay, which 
men in our day speak of somewhat contemptuously — as if 
half the affairs of life were not founded upon hearsay. They 
could act upon whatever appeared to them trustworthy 3 — 
upon anything which they thought likely to throw light upon 
the question at issue. Here was in principle all that the subject- 
matter of evidence requires. The defect was in dealing with it. 
The age was uncritical; no one knew, or at any rate cared, how 

1 "Summone . . . duodecim liberos et legates homines " is the usual language. 
Glanvill, lib. xm. 

2 The Mirror (13th century) calls this one of the "abuses"; but that shows 
the fact, and only a private objection. 

8 The jurors swore to decide "per proprium visum et auditum . . . vel per 
verba patrum suorum et per talia quibus fidem teneantur habere ut propriis." 
Glanvill, lib. 2, c. 17. This was in the grand assise, made to accord perhaps with 
the champion's oath, in trial by battle in Glanvill's time. But other juries swore 
in the same way. 



igi6.] THE OLD JURY. 325 

to make a proper use of the means of investigation. Nothing 
was excluded; but wisdom failed. 

It would not do to stop with noting the advantage of a clear 
field. Witnesses of the parties were sworn to state only what 
they had seen and heard; and this would have led, and, when 
the modern jury came into operation, did finally lead to the 
exclusion of evidence, for the modern witness still testifies ordi- 
narily to the evidence of his senses. But the old jurors swore, as 
we have seen, to what they knew, which led further than might 
at first be supposed. It led juries to take account of states of 
mind, as in the ordinary course of things; in this respect fol- 
lowing the more ancient modes of trial. There was no more 
common process in the thirteenth century — and for centuries 
before in other forms of procedure — than jury trial under the 
writ de odio et atia, to determine whether a person in prison 
had been put there by actual hatred or malice. 1 And there 
was also the proceeding of the writ of conspiracy, for a malicious 
prosecution, which with some changes has come down to our day. 
The old jury was never restricted to finding acts and omissions. 

In modern times — in very recent times — much question 
has been made with regard to evidence of states of mind (apart 
from cases of alleged insanity). The modern jury is made up 
of men who are ignorant of the facts to be proved; the jury 
must learn everything from witnesses, but, apart from expert 
witnesses, these speak mainly of matters of knowledge acquired 
by the senses. Can a jury then — or a judge, for the judge has 
become a juryman — find mental facts, as ground of liability? 
That has been a subject of considerable discussion, which of 
course I cannot enter into here. 2 But I suppose that there has 
been no real departure from the old position; the mind, though 
indirectly, as well as the act, is the subject of inquiry. 3 But 

1 This afterwards gave way to the writ of habeas corpus, a proceeding tried 
by the judge without a jury. Many jury cases may be found in the Rotuli Curiae 
Regis (1194-1200). See e.g. Vol. n., 30-31, 97, 120, 230, 278. I have noticed 
only one case in the last five years of Richard's reign. Vol. 1., p. 52. And this case 
looks untechnical. Perhaps the writ was adopted in the first year of John, from 
the practice in the lower courts, popular and franchise. 

2 The English Utilitarians and Holmes on the Common Law, make external 
standards the test of liability, and make little of states of mind. See especially 
J. S. Mill's Essay on Utilitarianism. 

8 Legally speaking (apart from statute) acts and omissions, though resulting 
in damages, are nothing in themselves; wrongfulness must be added — a mental 
quality is necessary. 



326 MASSACHUSETTS HISTORICAL SOCIETY. [APRIL, 

we have to break somewhat with the idea of the modern jury, as 
a body to be informed by witnesses speaking only to the senses, 
to reach that result; otherwise why should not witnesses speak 
directly to states of mind? Why not ask a witness what he 
thinks? What I say that I think is evidence, according to its 
importance and my means of information, everywhere except 
in the courts of justice, and would be there but for the modern 
jury. We have defects as well as advantages in our jury. The 
change in the function of the juryman has been not merely in 
the fact that from being a witness as well as judge, he has 
become a judge only, dependent upon others for facts: mod- 
ern courts have learned the method of evidence. They have, 
that is to say, learned how to deal with the evidence to which 
the jury system has limited them. Much of the supply of facts 
which the old jury had to draw upon has been put out of court, 
and confusion has been added to much that has been kept. It 
comes to this: The old jury had a complete supply of material 
not properly prepared; the modern jury has an incomplete 
supply of material properly prepared. Who would go to our 
courts for instruction may with confidence study an incompa- 
rable method, while looking with mingled feelings upon a process 
devoted to truth, which begins by turning away half the stream 
of evidence, and then sets to grinding out grist of rules for 
turning dribblings of the waste back to old, forgotten uses. 1 

The history of the Court of Chancery lies beyond the field 
of this paper; but it is only right to say that while that court 
set out with the promise of gain without loss, it fell into the 
mistake, in its later history, of treating hearsay as a matter of 
substantive law, which of course would bind the chancellor as 
well as the common law judge. The modern jury has affected 
the entire course of justice the world around. But the Court of 
Chancery was a true light; the Old Era was at an end; in 
course of time a Chancellor produced the Novum Organum. 2 

1 See e. g. the "best evidence " rule, Thayer, chap. xi. The only noteworthy 
change that took place in the function of the old jury was that, on the advent of 
professional lawyers as judges {temp, Edw. I.), the jury, or "laymen," as they 
were significantly called, were now required to confine themselves to ques- 
tions of fact. They must not pass on matters of law. Before that time, when 
the judges themselves were mostly laymen, this obviously could not be done. 

2 As for Harvey's gibe at Bacon, that " the Lord Chancellor wrote on science 
like a lord chancellor," it would have been easy, and equally vain, to reply, that 
when Harvey said that he did not speak like a man of science. 



1916.] TWO GRANT LETTERS. 327 

If then the history of evidence may be treated as calling for a 
consideration of the ancient period of trials ? the old jury may be 
regarded as the last link of the earlier part of the chain; while 
the Court of Chancery is the first link in the modern mode of 
investigating truth. 1 

Two Grant Letters. 

Professor Bassett contributed copies of two holograph letters 
from General Grant to S. L. Hafnlen, dentist, preserved by his 
daughter, Miss Elinor Hamlen, of Northampton, and by her 
presented to the Smith College Library, March 16, 1916. 

Near Vicksburg, Feb. nth, 1863. 

Dear Sir: I met with a serious loss this morning through the 
carelessness of a servant. On going to bed last night I left my teeth 
in the washbool with just water enough to cover them over. This 
morning the servant who takes care of my state room emptied the 
basin into the river teeth and all leaving me in rather a bad fix 
away as I am from where damages can be repaired. 

If you are coming this way can you not bring the material for 
taking an impression so that a set can be made for me and forwarded. 
Respectfully, &c, 

U. S. Grant, 
Maj. Gen. 

Head Quarters, Military Drv. of the Miss. 
Chattanooga, Ten., Dec. 7th, 1863. 

S. L. Hamlen, Dentist, is authorized to practise his profession 
at any point within this military command. Permits will be issued 
for Dr. Hamlen, by Provost Marshals, to pass, with such material 

1 It is not intended to intimate that the Court of Chancery at once anticipated 
the modern methods of science in the investigation of truth; all that is meant is 
that it lighted a torch, however dim, for such investigation, so far as the admin- 
istration of justice is concerned. If the field was narrow, the aim was modern: 1. 
The old modes of trial were left aside. 2. Cases were not one-sided, party affairs; 
the court dealt with the complaint. 3. The defendant, who knew the facts, was 
required to testify. 4. Examination of facts was not confined to preliminaries of 
competency — it was extended to the merits as being the ground of interference. 
5. The King's direct power was added, the chancellor being the King's right arm, 
in a sense not true of the ordinary judges. The truth must be found and must 
prevail. All this has a forward look, though, in fact, it was the civil (Roman) 
law on English soil. 



328 MASSACHUSETTS HISTORICAL SOCIETY. [APRIL, 

as may be required in the practice of his profession, from Cincinnati 
to the point where he may desire to locate. 

U. S. Grant, 
Maj. Gen. 

Certificate by Charles Chauncy. 1 

3 (9) 1665 
Thes are to testify to the Lords people, as occasion required that 
Benjamin Eliot, 2 Bachelor of arts, hath for the space of fonre yeares 
lived with us, being diligent in his studyes and in constant repairing 
unto the worship of God, so that of later times he hath given my 
selfe good evidence, that the Lords call of him to the fellowship of 
Christ hath bene effectuall unto him, so that he hath the root of 
the matter in him; so that I hope that he will, by Gods grace be a 
profitable instrument in the church of Christ as God shall be pleased 
further to call him and choose him to beare his name. This I testify 
as well acquainted with his ways and willing to encourage such 
beginnings in the Lord. 

Charles Chauncy. 

Convicts for Transportation. 3 

To all People to whom these presents shall come, Charles Bracken- 
bury of Hull, in the Kingdom of Great Britain, merchant, (at present 
in Boston in New England) sendeth Greeting. Know ye That I 
the said Charles Brackenbury for and in Consideration of Four 
hundred and Twenty Pounds New England Currency of the old 
Tenor to me in hand Paid by Messrs Charles Apthorp and Thomas 
Hancock both of Boston aforesaid, Merchants (the receipt where of 
I do hereby Acknowledge) Have and by these presents Do Grant 
sell assign and make over unto said Apthorp and Hancock their 
Executors Administrators and assigns the several Persons hereafter 
named That is to say, John Fowler, John Jeffers, Andrew Crombey, 
Robert Mason, Thomas Balderson, James Williamson and Roger 
Ferguson, the said [James] Williamson and Roger Ferguson for 
Fourteen years each, and [Fowler] Jeffers, Crombey, Mason and 
Balderson for seven years [each torn] all my right and title in and to 
said several persons [their] times of Transportation, they being Per- 

1 From the Washburn Collection, 010. 4. 5. 

2 Eliot, a son of the "Apostle," born January 29, 1646-47, graduated from 
Harvard College in 1665, and died October 16, 1687. He is said to have assisted 
his father as a preacher, but was never ordained or married. 

3 From the collection of Charles P. Greenough. 



igi6.] CONVICTS FOR TRANSPORTATION. 329 

sons severally Indicted and Convicted of Sundry Crimes, and were 
sentenced to death and some of them to Transportation. Since 
which his Majesty has been most graciously Pleased to Extend his 
Royal Mercy to those sentenced to death on Condition of Transporta- 
tion to some of his Majestys Colonies and Plantations in America 
for the Terms aforesaid. Which Convicts and their times of Trans- 
portation were Lawfully assigned to me the said Charles Bracken- 
bury by Mr. William Cookson of Hull in Great Britain Esq. Mer- 
chant, who was the Contractor with the Government for them. 
Witness my hand and seal this eighteenth day of July Anno Dom 

1747- 

Charles Brackenbury. (Seal) 
Sealed and delivered 
in presence of us 
Thos. Temple 
[torn] 

Remarks were made during the meeting by Messrs. Wendell, 
Grant, and Adams. 



330 MASSACHUSETTS HISTORICAL SOCIETY. [APRIL, 



MEMOIR 

OF 

EDWARD HENRY STROBEL. 

By LINDSAY SWIFT. 



Edward Henry Strobel was elected a Resident Member 
of this Society on January 9, 1902, in recognition, as the Presi- 
dent, Mr. Adams, said, "of distinguished services rendered and 
results accomplished in the field of international law." * Dur- 
ing his membership he made no communication to the Society. 
In the summer of the year of his election the position of General 
Adviser to his Siamese Majesty's Government was offered 
him, and from then until his departure for Bangkok, in the fall 
of 1903, his time was so fully occupied that his absence from 
the meetings of the Society was unavoidable. 

Strobel was born in Charleston, South Carolina, on December 
7, 1855, and died in Bangkok, Siam, on January 15, 1908. 
His parents were Maynard Davis and Caroline Lydia (Bullock) 
Strobel, and he and a younger sister, still living, were the only 
children. The father, who was of Flemish descent and who 
was cashier of the Farmers' and Exchange Bank of Charleston 
at the opening of the Civil War, had put all his money into 
Confederate bonds, and after the close of hostilities found 
himself without means and in no position to retrieve his fallen 
fortunes up to the time of his death in April, 1868. But he 
remained in Charleston, where his grandfather had come about 
1750, while Mrs. Strobel and her children, after the burning 
of their house during the first year of the war, were obliged to 

1 3 Proceedings, 1. 319. 



1916.] EDWARD HENRY STROBEL. 33 1 

leave the now beleaguered city and finally take refuge in Chester, 
South Carolina, where the family has since remained. 

Entering Harvard in the autumn of 1873, Strobel found life 
there vivid and interesting, for he easily made friends and 
was not denied the pleasant social relations which make a 
college career doubly helpful. He was a member of the Everett 
Athenaeum, the Signet Society, and the Phi Beta Kappa. He 
won a Lee prize for reading, a "detur," and a second Boylston 
prize for elocution. After taking second-year honors in the 
classics, he graduated in the Class of 1877 with honors in 
classics, and delivered the Latin Oration on Commencement 
Day, June 27, 1877. On the platform during that august but 
always overcrowded occasion sat President Hayes and also 
James Russell Lowell, who had just received the appointment 
of Minister to Spain. Strobel in the course of his oration re- 
ferred to Lowell's approaching journey "per nebulas et undas," 
and the President smiled, let us hope without previous intima- 
tions, at the felicity of the bilingual play upon his own name. 
So, as it is pleasant to fancy, was begun Strobel's aptitude for 
diplomacy, for one can hardly suppose that the young South- 
erner's enthusiasm for the Chief Executive was at that time 
other than restrained. 

He entered the Harvard Law School in the fall of 1877, but 
did not finish his course there until 1882. In 1880 and 1881 
he visited Europe for the first time and at various periods 
tutored students with marked success. 

In 1883 he was admitted to the New York Bar. After a 
short practice, however, he came to the conclusion that it was 
the part of wisdom in a man of his temperament to seek a 
career of achievement in broader if not richer fields, and to 
abandon the opportunity of making money for the reasonable 
hope of making a reputation. Whether or not the country 
lost an able lawyer by this decision, it is not safe to say. Di- 
plomacy certainly was the gainer. 

Coming to Cambridge and Boston in the summer and fall of 
1884, after this renunciation of a chance to be obscurely pros- 
perous, Strobel now set himself diligently at work to prepare 
a campaign document against the candidacy of Blaine, published 
anonymously under the title Mr. Blaine and his Foreign Policy. 
In this remarkable skit were none of the appeals familiar to the 



332 MASSACHUSETTS HISTORICAL SOCIETY. [APRIL, 

American voter. It was cold, severe, ironical, but unfailingly 
courteous. I have never been able to compare it with any other 
partisan document, except to its advantage. In that campaign 
of 1884, waged so ruthlessly on both sides against the personal 
characters of the two candidates, Cleveland and Blaine, StrobePs 
pamphlet stood peculiarly alone. Financially it brought him 
but slim reward, but it showed in its keen analysis of Mr. 
Blaine's diplomatic career, an unmistakable capacity for dealing 
with large affairs. So at least President Cleveland seemed to 
think, for about a year later he commissioned the aspiring 
young publicist as Secretary of Legation at Madrid. "I was 
received very kindly here," he wrote me soon after his arrival 
in Spain, "by Mr. Foster, the Minister. He has sent in his 
resignation and leaves on September 1. I look anxiously at 
the newspapers in order to see whether there is anything about 
the appointment of a new Minister, for, as you know, on Foster's 
retirement, I shall be accredited to the Spanish Government as 
Charge <T Affaires ad interim, and the salary for that period 
will be $500 per month. So God grant that the interregnum 
may be a long one, notwithstanding the responsibility, which is 
more or less great. It is a satisfaction to know that even if a 
new minister is appointed, the cholera will probably frighten 
him away for some time." 

His wishes were in a large measure gratified. Dr. Jabez 
Lamar Monroe Curry, the Minister named by President 
Cleveland for Spain, was away, largely by reason of ill- 
health, a considerable portion of his term, and Strobel ably 
filled the position of Charge, thus gaining a much larger 
experience in the exercise of responsibility than he could 
possibly have had as a Secretary of Legation. During his 
five years' stay in Spain (1885-1890) Strobel acted as Charge 
about one third of the time. Although he was assured by 
Secretary Bayard that he had accomplished more in a single 
year than his predecessors in twenty years, Minister Curry 
found the climate of Madrid so detrimental to his precarious 
health, that he was obliged, on August 6, 1888, to tender 
his resignation. During these three years a heavy burden of 
work and responsibility rested on the shoulders of the young 
Secretary of Legation. 

Having no memoranda at my command, I dare not venture 



IQI6.] EDWARD HENRY STROBEL. 333 

my recollections of some of the eventful experiences through 
which Strobel passed while in Spain. There was one vivid 
story of his brave attempts to convince certain ardent and 
speculative Americans that they were entering on a futile task 
in attempting to raise some sunken treasure ship from depths 
into which it had probably never fallen; I wish that I could 
accurately recall his graphic account of a notorious adventurer 
calling himself the Duke of Arizona, who claimed vast domains 
in the far Southwest on the strength of old and veracious-look- 
ing Spanish deeds. The noble Duke was at last caught, while 
trying to insert forged cedulas of apparently great antiquity 
into the archives at Seville. Strobel was ever ready to assist 
any one in a serious endeavor, and I think that he was sorry to 
learn that the Duke of Arizona proved to be such a graceless 
scoundrel. Among other official experiences in Spain — the death 
of the King, the marriage of the Infanta Eulalia, the birth of 
the present king, the hatting of a cardinal — perhaps the most 
important to Strobel was his representing the United States at 
the funeral of King Alfonso XII. 

In 1889 the Republican party came back into power, with 
Mr. Blaine as Secretary of State. Never a man of small re- 
venges, the Secretary retained in office for a year his vigorous 
but polite assailant. Differences had arisen between the Moroc- 
can government and the American Consulate, and to straighten 
them out Strobel had been sent to Tangier in February, 1888. 
The following year he travelled nearly two hundred miles into 
the interior on horseback in order to have audience with the 
Sultan of Fez. On this occasion Strobel, to whom something 
out of the common was always happening, found himself fax 
from the possibility of friendly succor, at serious odds with his 
interpreter and with a little army — a mere handful of hire- 
lings — that he had scraped together for the embassage. Things 
looked dark for American diplomacy in northern Africa at that 
moment, when there appeared a deus ex mackina, a, Jew who had 
formerly kept a tobacco shop in the Hotel Pelham in Boston, 
where Strobel used often to buy cigarettes. What American 
straightforwardness failed to accomplish was quickly set right 
by Hebraic persuasiveness, and the mimic army soon moved 
forward to its destination. 

Strobel tendered his resignation as Secretary of Legation at 



334 MASSACHUSETTS HISTORICAL SOCIETY. [APRIL, 

Madrid on June 17, 1889, but it was not accepted by Mr. 
Blaine until February 13, 1890. In June of 1891 he wrote me 
from Pau, Basses Pyrenees: 

Since my leaving the Legation, I have led a life of quiet and vir- 
tuous tranquillity. I was about to return to America last autumn 
when I received a very advantageous offer to spend the winter at this 
place with a youth who was not going to college, but whose family 
wished him to have as much of a dab at the humanities as I could 
give him in a short time. If Mr. Cleveland should be the next 
President, I should like to go back into the Diplomatic service, 
if I am offered a good appointment; if not, I think that I shall 
go out and settle in Butler's town (Superior, Wisconsin), where 
I have a few hundreds invested that appear to have increased in 
value. 

On April 13, 1893, President Cleveland commissioned Strobel 
Third Assistant Secretary of State. The appointment was not 
unwelcome, but Strobel had strong hopes that it was only a 
stepping stone to something higher, and such proved to be the 
case, for in April, 1894, he became our Envoy Extraordinary 
and Minister Plenipotentiary to Ecuador; his retirement from 
the Department of State occurred on the sixteenth of that 
month. 

On the eve of his departure for Quito he wrote me, on May 
29, 1894: "I have a long and hard but interesting journey before 
me, fourteen days over the Andes from the coast. You are quite 
wrong about its being hot — the cold is rather to be dreaded. 
... I shall write you soon after my arrival and tell you some- 
thing of the country. There is not much to be done in Ecuador 
and I am taking out a box of solid works for the purpose of 
mental improvement." This journey of one hundred and sixty 
miles from Guayaquil had to be taken on muleback to reach 
finally an altitude of 9000 feet at Quito. 

At last the real career of Strobel was fairly begun, but the 
Quito post by no means represented the goal of his aspirations, 
and the tenure of it was not long, for in December of the 
same year (1894) he was tendered the appointment of Minister 
to Chile. The experience at Quito, however, was valuable, 
and a good preparation for the larger field in Chile. Mr. 
Cleveland must by this time have fully recognized the peculiar 
fitness that Strobel had for certain kinds of negotiations, re- 



1916.] EDWARD HENRY STROBEL. 335 

quiring an infinite good nature and tact, together with an un- 
mistakable firmness of character. At the time of his appoint- 
ment to Chile there was little love lost between that country 
and the United States. After the overthrow by the Junta of 
the formerly successful and enlightened Balmaceda, and his 
suicide in December, 1891, the leaders of the revolution cherished 
most hostile sentiments against the United States, believing 
that Strobel's predecessor, Patrick Egan, was misrepresenting 
them in his own country. In this acute state of affairs occurred 
the incident of the landing of the two boatloads of sailors 
from the U.S.S. Baltimore, and of the brawl on shore ending 
with serious and even fatal results. Redress was demanded 
and refused. Thereupon the Yorktown and the Boston ap- 
peared off Valparaiso. President Montt, who had succeeded 
Balmaceda, immediately assumed a more courteous tone, 
apologies were made, and indemnities paid for the men who 
were killed in the affray. Mr. Egan was severely criticized at 
home as well as in Chile, but his course was defended by 
President Harrison. Taking all things into account — es- 
pecially the recent ill-feeling between the two countries and 
the sentiment against Mr. Egan — it does not appear that 
the new Envoy-Plenipotentiary had been dropped on a flowery 
bed of ease by way of diplomatic promotion. It is gratifying 
to recall, however, that Strobel found it possible to say many 
agreeable and commendatory things of Mr. Egan's conduct in 
Chile. 

After a busy and successful experience he resigned the 
Chilean appointment in February, 1897, and actually retired 
from office in August of the same year, but not before he had 
performed one of the most significant acts of his career. "By 
a convention," I quote here from the Sixth Report of the Sec- 
retary of the Class of 1877 of Harvard College, "signed July 2, 
1897, between France and Chile, Strobel was appointed arbi- 
trator in the claim by the French citizen Charles Freraut 
against the Government of Chile." Each side, so I have been 
informed, was to name an arbitrator, and these two men were to 
choose a third — three arbiters in all. It was found, however, 
that both parties to the negotiation had named Strobel, who 
was thus constituted the sole arbiter. A compromise of some 
sort was arrived at in this Freraut claim, but the French govern- 



336 MASSACHUSETTS HISTORICAL SOCIETY. [APRIL, 

ment, impressed by StrobeFs abiKty and fair-mindedness, made 
him an Officer of the Legion of Honor. His experience in Nor- 
thern Africa and this Freraut matter serve to show his peculiar 
capacity for settling a difficulty entirely on his own undivided 
responsibility. In 1898 he published a book on the Spanish 
Revolution, 1868-1875, on which he had been engaged for 
seven years. 

Now twenty-one years out of college and as yet unrecognized 
by her, Strobel was at last to know that his Alma Mater had 
not forgotten him. The Bemis Professorship of International 
Law in Harvard University, according to the terms of the be- 
quest, was to be held only by some one qualified, through actual 
diplomatic service, to teach his subject in a spirit freed by resi- 
dence abroad from ordinary national or sectional prejudices. 
Strobel seemed to meet the requirements of the bequest, and 
this chair was accordingly offered him in June, 1898. Were 
the political structure of this country other than it always has 
been and still continues to be, it would have been deemed a 
most rash thing for a man like Strobel, still in the prime of life, 
to renounce a career for which he had a strong liking and in 
which he had already shown marked ability, in order to settle 
down into routine work even in so honorable a position as a 
professorship in Harvard University. The distinction of the 
offer of this chair at Harvard and the knowledge of the useful 
work he might be able to do appealed favorably to his judg- 
ment, and he therefore accepted the position, without allowing 
the temporary abandonment of a cherished calling to inter- 
fere with the sincerity of his decision and his satisfaction in 
being offered the position. Not only did he give in the Law 
School a half -course in "Admiralty" and a full course in 
"International Law as administered by the Courts," but in 
the College itself, a full course for advanced students on "In- 
ternational Law." His courses were popular, and his manner, 
naturally simple and bearing the stamp of unaffected directness 
characteristic of modern diplomacy of the higher sort, ap- 
pealed favorably to the students, who liked and respected him. 
I am safe in saying that Strobel enjoyed his work at Cambridge, 
although he was hampered by uncertain conditions of health. 
Having seen a good deal of what is called high society, I think 
it possible that the social requirements of a University town 



1916.] EDWARD HENRY STROBEL. 337 

may have worn a little upon his spirits. Once he mildly said 
to me that in "some respects Cambridge after dark does not 
greatly resemble the night life of Madrid." 

On July 25, 1902, he gave me a hint of the great change 
that was to take place in his career when he wrote: "You will 
greatly add to my obligations if you will send to me one or more 
books giving the fullest and most trustworthy information 
about Siam. I want to find out about the climate, resources, 
government, etc. My mind is at present a blank on the sub- 
ject, and a matter has come up which necessitates my securing 
some information about the country." Shortly after he told 
me that he had been approached through the Siamese Minister, 
then summering on the North Shore, in regard to the possibility 
of his entering the service of his Majesty's Government at 
Bangkok, in the capacity of General Adviser. A Belgian, 
Gustave Rolin-Jaequemyns, had recently died, after filling this 
difficult post with distinction. The King, wishing to take no 
step which might irritate either France or England, each closely 
watchful of the movements of the other in regard to that de- 
batable ground, turned for suggestions and advice to the United 
States, then beginning to cut a larger figure in the world politics 
after the Spanish-American war and the possession of the 
Philippines. The only answer that Strobel could make to the 
tentative offer, reaching him through the powerful endorsement 
of John Hay, was to say with entire frankness that he had 
assumed serious responsibilities in regard to an Arizona mine, 
and that he could not honorably leave the country until this 
matter was settled in some fashion. So the affair drifted for a 
time. In August he wrote me that he fancied the Siamese were 
looking about for other possibilities. That Siam was deter- 
mined to secure him was evident, for in September he was in 
Paris on the "King's business." "I shall be detained here until 
the last of next month," he writes me on September 22. "The 
people who wanted me to come here have some very important 
matters pending in which they have asked my assistance. I 
could not very well refuse. I shall use this as a reason for 
extending the date of my departure from the United States. 
That matter by the way has been thoroughly settled except 
that the engagement is for only two years instead of three. I 
am quite sure that I shall have had enough of it by that time. 



338 MASSACHUSETTS HISTORICAL SOCIETY. [APRIL, 

... It is advisable that my appointment should not be 
published yet." 

Writing on October 7, from the Legation de Siam, he says, 
"The Convention between Siam and France was signed this 
morning. This ends the most important business here. I 
hope therefore to be able to leave soon, although there is an- 
other matter pending which may detain me some time longer. 
It has been very interesting and important work. I have been 
under considerable strain and have been kept up late at night, 
so that I am really very tired." Just a week later he writes from 
London: "You may have seen by the papers that the nego- 
tiations in Paris were concluded by the signature of a Conven- 
tion of the 7th instant. This Convention, in return for some 
sacrifices of territory on our part, settled favorably certain ques- 
tions growing out of the events of 1893, which had since that 
time caused a peculiar strain in the relations between the two 
countries." 

The news of Strobel's appointment was a well-kept secret, 
for not until March, 1903, was the fact made public. The 
usual comments as to the entrance of this country into far- 
Oriental diplomacy were freely made, and national pride, co- 
extensive with a vast ignorance as to the true significance of 
such an appointment, gave the press a fine opportunity for 
rhetorical display. He was given a leave of absence from the 
Law School for two years, and the chair he held was left va- 
cant with the expectation that he might soon fill it again. He 
did not resign this position until the autumn of 1906, after he 
had agreed to remain in Siam for six more years on his return 
from his visit home. It is interesting to recall here that al- 
though President Eliot regretted to lose so valuable a man to 
Harvard University, he advised Strobel to accept the Siamese 
offer for "national reasons." 

We cannot follow in detail his fruitful service in Siam. How- 
ever interesting in international history and to Strobel, the 
full relation belongs elsewhere. 

About a month before his departure for a visit to the United 
States Strobel received from the King a signal mark of royal 
favor, by the bestowal on him of the Grand Cross of the Order 
of the White Elephant. It was a resplendent ornament, and 
Strobel thought most highly of it. The Siam Observer's leading 



1916.] EDWARD HENRY STROBEL. 339 

editorial of November 17, 1905, explains the occasion of this 
tribute as follows: 

Mr. Strobel is to be greatly congratulated on the distinguished 
honor which His Majesty has conferred upon him; and Americans 
are entitled to feel some special pride in the occasion. It is the high- 
est honor which His Majesty could bestow, and it is memorable as 
a mark of Royal appreciation of signal services rendered by the Gen- 
eral Adviser since his appointment. The first of these services was 
that of assisting in the final adjustment and conclusion of the Franco- 
Siamese Convention which has amongst other effects secured to 
Siam a welcome period of freedom from international worries — a 
period turned to good account in works of domestic legislation. We 
need only briefly recall such recent measures as those for the abolition 
of licensed gambling, the Law of Navigation in Siamese Waters, the 
Hackney Carriage Act, and other more or less important reforms; 
and the minor treaties dealing with matters of jurisdiction concluded 
with Denmark and Italy. In many directions Mr. Strobel has un- 
questionably worked hard and to good purpose, and has rendered to 
His Majesty's Government an amount of assistance of which His 
Majesty has now given the highest possible token of appreciation. 
It will be a matter of legitimate pride to Americans that their coun- 
try has furnished to Siam a diplomatist and statesman whose ripe 
experience has been of such great service to this State. 

There now comes a dark period in my friend's career — a 
period of which I have been able to gather but few details. 
Assuming that he left Bangkok as he had planned on Decem- 
ber 21, Strobel was ardently expected to be present at a dinner 
of his Harvard classmates in Boston in February or March, 
1906. The Secretary of the class, Mr. John F. Tyler, however, 
received no word in answer to a cable sent by him to Strobel 
in January. The first news from our mysteriously silent friend 
seems to have been a cable sent to his mother, dated February 
1, 1906, as follows: "The doctor assures me that I am abso- 
lutely out of danger." He had probably sent or thought that 
he had sent an earlier message or else took it for granted that 
some notice of his illness would be seen in the papers. 

It seems that he arrived in Cairo on January 10, 1906, and 
the following morning saw the pilgrims starting for Mecca. 
That afternoon a slight irritation was felt on his upper lip. 
The next day the lip was swollen and he had a slight chill. The 



340 MASSACHUSETTS HISTORICAL SOCIETY. [APRIL, 

swelling soon extended over the whole face, and within the 
next week definite blood-poisoning set in, and three operations 
were performed on his face, with seemingly good results. But 
very soon practically all parts of his body were assailed with 
virulence, and his sufferings were intense. He remained in 
Dr. Milton's hospital for about ten weeks, and before he left 
Cairo the disease had attacked his back. He reached Boston 
much changed by feebleness and long confinement, but his 
mind was still alert and his eyes bright with courage and de- 
termination. In Boston he felt in his own home, for it was here 
that he often expressed a wish to settle down when his active 
days were over. 

With considerable difficulty, and flanked by a small cohort 
of faithful classmates, he was driven to Cambridge on Com- 
mencement Day to receive the degree of Doctor of Laws. 
When he arose, as President Eliot named him for this honor, 
he appeared so wan and shrunken that those who had known 
him in health were shocked to see him. It was this occasion, 
deeply appreciated by him, who had already received many 
worldly honors, that really brought him to Boston and Cam- 
bridge. After the services at Sanders Theatre his indomitable 
will enabled him to get to his classroom, two flights up in 
Holworthy Hall. Many of his classmates, and especially the 
physicians among them, realized that they were probably 
greeting him for the last time. 

He left New York on January 2, 1907, and arrived in 
Siam about the first of March, to find himself plunged at 
once into most exacting and important matters, ending with 
the conclusion of an important treaty with France, which 
may be regarded as the crowning event of StrobeFs career; 
in his own words he was " entirely responsible for the 
treaty and [I] think it finally closes all questions with 
France." 

While the news in regard to his improving health continued 
to be hopeful, the news came by cable from Mr. Westengard 
that he had died at 6.35 in the afternoon of January 15, 1908. 
The direct cause was uremic poisoning, and Strobel was fully 
aware of the seriousness of his case, retaining as he did full 
consciousness until very shortly before his death. The physi- 
cian who was closest to him at this time, grandson of the 



1916.] EDWARD HENRY STROBEL. 341 

eminent Mrs. Leonowens, was willing to tell me that Strobel 
watched the progress of his illness with a cool, impersonal 
interest, though it is improbable that he realized the full sig- 
nificance of his condition. From another it was learned that he 
expressed regret that he must lay down his work when there 
was still so much to be done for Siam. But I have no disposi- 
tion to enter fully into the privacy of a friend's last hours. It 
is enough to say that he was deeply mourned by all who ever 
knew him, and by none more sincerely than the Siamese, from 
the King down to the humblest person who ever came in con- 
tact with him. His remains were cremated in the presence of 
the King, February 5, 1909. 

I select a few personal tributes, which show the man rather 
than his public character. First I choose a portion of the words 
written by one who loved him well, as only a teacher can love 
a cherished pupil. They were written for the Boston Daily 
Transcript by our late associate, Dr. William Everett. The 
affection here displayed was generously returned to his 
loved master, who not so much taught Strobel his Latin at 
Harvard as studied that language with him in enthusiastic 
comradeship: 

This notice is not meant to describe his work as a diplomat and a 
publicist. It was not for those that his friends loved him. A pro- 
found thoroughness in all his work, not that of the plodder but of the 
scholar, of the highest type of scholarship; an intellect so quick and 
open that he never needed to have anything explained twice and 
scarcely once; an imperturbable good nature under many provoca- 
tions; a lively sense of humor that added a charming zest to all 
intercourse; gratitude, effusive, yet dignified, for the slightest kind- 
ness, all founded on an unshaken probity and sense of duty — it 
was for these we loved Edward Strobel. It is much, very much, that 
a son of America and Harvard should have won his way to be the con- 
fidential adviser of a Government separated from us by half the 
globe. It is no less that he left in our hearts a sweet glow of loving 
memory that exile could not dim, nor death extinguish. 

Another member of this Society, objecting to that process 
of our national political life by which we continue, in our di- 
plomacy, to get rid of a man as soon as he has proved his effi- 
ciency abroad, says: "It was a career that was in good part 
wasted, for he never obtained his due, and the diplomatic ex- 



342 MASSACHUSETTS HISTORICAL SOCIETY. [APRIL, 

perience turned him out of the current in which men like 

obtained more than their due." 

The late Edward Everett Hale, in writing to one of our 
associates at the time of Strobel's death, quotes some words 
of an American gentleman who has identified himself with the 
advance of Siam, and I venture to give here in part what was 
written: - 

I think it would be fair to say that never in the history of this 
country [Siam] has there been such universal sorrow at the death 
of a European. No man has made such lasting impression in Bang- 
kok in such a short time. He was in Siam only four or five years at 
most, and no man has, to such an extent, won the regard and esteem 
of all classes — the King, the officials of the Siamese Government, 
the diplomatic corps, and the European business men. In his life 
and death, the King showed him most unusual honors, visiting him 
in person when he was ill, and conferring upon him the highest deco- 
rations ever bestowed upon a European in the service of the Siamese 
Government, and finally attending his funeral with his whole court. 
The King was, in very truth, the chief mourner. It grieved him 
sore to part with the man whom he loved with so much confidence. 

It makes us thrill with patriotic pride to think that the foreigner 
of all others whom His Majesty delighted to honor was an Ameri- 
can, and, more than this, that all classes and factions declared that 
he was worthy of these honors. 

Mr. Strobel came to Siam to serve this country, not for the sake 
of what he could make out of the country. And this is true of nearly 
every American who has come here these last hundred years. Al- 
most without exception they have come for service and not for gain. 
I may add that the Siamese Government has not been slow in noting 
this. I think it would be fair to say that America has done more for 
the progress of this nation than all the rest of the world put together. 

Another side of his life is shown in the words of a devout 
Catholic, who, writing from the Via Sistina in Rome, says: 

I shall be proud to remember him before the high altar in the 
Pantheon. What more fitting place to pray for the soul that was so 
pagan in its outward form and beliefs, but so profoundly Christian 
in its true life and expressions ! 

It seems wholly proper to say here that Strobel, though 
remaining outside of that communion, cherished a deep respect 



igi6.] EDWARD HENRY STROBEL. 343 

for the authority and universal spirit of the Roman Catholic 
Church, and that he chafed at all intolerant remarks made 
against it. He felt too intensely, however, the littleness of 
man, in comparison with the incomprehensible vastness of 
the universe, to subscribe to any form of belief which under- 
took to solve the meaning and destiny of human existence. 
The few to whom he ever spoke of such matters will recall 
the deep humility with which he dwelt on the utter insig- 
nificance, as it seemed to him, of the dwellers on this small 
planet. 

I add one more opinion to show him as he appeared to one — 
a woman — who knew him at his desk, his daily toil. "No 
words/' she says, "can fully describe the charm of his talk, 
nor say why his low laugh was so good to hear, nor explain 
why even a commonplace experience, shared with him, became 
memorable and delightful." 

Shortly after StrobeFs death his classmates raised a sum 
amounting in all to more than $3000 to provide for some 
memorial in his honor; $2500, raised at a dinner of the class 
in New York a month after he died, was given to and accepted 
by the President and Fellows of Harvard College for the estab- 
lishment of a fund for the use of the College Library and to be 
called the Edward Henry Strobel Fund. The income is to be 
■ used for the purchase of works relating to world politics and 
such kindred topics as the expansion of territory, colonization, 
settlement of differences between nations, and other cognate 
subjects, but not necessarily works on international law. 
Works on the Far Eastern problems and especially in Siam, 
where Strobel achieved his highest distinction, receive, accord- 
ing to the terms of the gift, the first consideration. A book-plate 
for volumes purchased from the fund, designed after the 1877 
gate forming part of the enclosure of the College yard, was also 
provided out of this fund. 

The provisions of the gift were drawn carefully in order that 
they might not conflict with another gift, presented to the 
College through the Hon. Jens I. Westengard, StrobePs suc- 
cessor as General Adviser to His Siamese Majesty's Govern- 
ment. This gift, amounting to about $2000, was raised by 
subscription in Siam, and the income is to be devoted to the 
purchase of recent books on Siam. This memorial enables the 



344 MASSACHUSETTS HISTORICAL SOCIETY. [APRIL, 

Harvard Library to perpetuate the intention expressed to the 
Library authorities by Strobel to see that the cost of all books 
relating to Siam purchased by the Library should be met by 
him personally. A commemorative tablet, contributed also 
by his college class, has been placed over the entrance of the 
Library reading room of Langdell Hall in the Law School of 
Harvard University. 

It remains only to say somewhat of his personal life and 
characteristics. He was of moderate height, but superbly 
well built — full-chested, with his head finely placed upon 
his neck. His complexion was rather swarthy; his eyes 
brown and full of expression and with a pensiveness charac- 
teristic of many Southerners. A firm chin curved in rather 
sharply to his firm, admirably cut lips, a straight and not 
large nose, and dark eyes, gave him an appearance resem- 
bling in the opinion of some of his friends that of Napoleon in 
earlier life. 

He was not a man of enthusiasms: his intellect was cold and 
penetrating, not easily to be diverted from the point at issue. 
He had, however, high conceptions of friendship and a great 
loyalty to any one who had ever served or even known him. 
Friendship was to him a most solemn obligation that he never 
waived. Such fidelity always finds many only too ready to avail 
themselves of it. He preferred to be duped rather than to turn 
away any one who could ever have claimed acquaintance with 
him. But in the larger affairs of life he was neither to be de- 
ceived nor persuaded into any action contrary to what he 
believed to be right. He was modest and unassuming, but 
also astute. Without cynicism he was somewhat distrustful 
of the motives which control the majority of mankind. This 
distrust drove him back upon his chosen friends, in whom he al- 
ways seemed to place a serene confidence. He believed that 
they were as loyal to him as he certainly was to them, nor 
was he often deceived in his trust. 

Very early in life he had learned the invaluable art of dis- 
carding non-essentials. He would do nothing that he could 
hire some one else to do better. It was his exceeding good 
fortune to draw about him an indescribable loyalty. Men of 
his own type and degree would perform for him services that 
they would regard as menial were they expected by any one 



igi6.] EDWARD HENRY STROBEL. 345 

but Strobel. One who had waited on his numerous wants 
during a troublesome illness complained that he had been 
made a slave of. "That is nothing,'' said another friend; "I 
have been his slave ever since I first knew him many years ago." 
But such humble offices were most cheerfully rendered, be- 
cause there was always the certainty that Strobel held himself 
ready and always found occasion to make large return, though 
not of just the same kind. 

A contributing cause to his success in the higher ranges of 
human endeavor was his freedom not only from sectional 
but from national prejudices. Had he been born some years 
earlier, he would undoubtedly have played his honorable part 
in the Confederacy, and, all ambitions and hopes destroyed 
by the issue of events, he would in all probability have expa- 
triated himself after the manner, for instance, of the late Judah 
P. Benjamin. As it happened, he was born late enough to 
realize, without the sense of personal defeat, the full significance 
of a conflict the settlement of which by force of arms the South 
had herself sought. He was born a Southerner and remained 
loyal to the traditions of his birthplace, but the way was easily 
opened to become national. He was, it was said at the time 
he entered college, the first South Carolinian to enter Harvard 
after the war, and he found everything there to shape his mind 
in other than a sectional mould. 

All this being so, it is the greater pity that the country of 
which he was a most loyal citizen could not have found con- 
tinuous occupation for his remarkable ability in the field he 
was best fitted to occupy. He too was expatriated by a po- 
litical method still too crude to retain the uninterrupted ser- 
vices of the ablest men as representatives abroad. Nor can it 
be fairly said that our loss was his gain, for his training all 
pointed toward higher achievements in diplomacy abroad in 
the interests of the United States. 

He had elements of greatness — courage, persistence, the 
power of elimination of non-essentials, a ready grasp on the 
illuminating point. He was truthful, honest, simple. He 
commanded fidelity and confidence in his own ability. If he 
was somewhat lacking in the true radical's idealism and imagi- 
native power, his character was buttressed by conservative 
upbringing and sound conclusions from ascertained fact. He 



346 MASSACHUSETTS HISTORICAL SOCIETY. [APRIL, 

did not pretend to read the future by the stars, but found 
full employment in disentangling and rehabilitating some of the 
pressing questions of the day. His work in Siam fully shows 
that he was not without the instinct as well as the power of 
what we call greatness.